R v Qui Huang HOANG [2017] NSWDC 428

District Court New South Wales

Medium Neutral Citation: R v Qui Huang HOANG [2017] NSWDC 428 Hearing dates: 30 March 2017 Date of orders: 30 March 2017 Decision date: 30 March 2017 Jurisdiction: Criminal Before: Tupman DCJ Decision: Sentenced to overall term of imprisonment of three years and nine months Catchwords: CRIMINAL LAW – Sentence – Cultivate prohibited plant – cannabis – large commercial quantity Legislation Cited: Drug Misuse and Trafficking Act, s 23(2)(a) Cases Cited: R v Thomson and Houlton and Ors; Wei v R [2015] NSWCCA 66 Category: Sentence Parties: The Crown Qui Huang Hoang Representation: Ms Moody (Counsel F/W Hoang)

Mr Curran (DPP) File Number(s): 2016/00152899

Judgment 1. The offender is before the Court for sentence following his plea of guilty to one charge. He was committed for sentence to this Court from the Local Court on a charge that on 18 May 2016 at Wiley Park he cultivated cannabis plants in a quantity not less than the large commercial quantity. That is an offence contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act, 1985 which carries a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years. The large commercial quantity for enhanced indoor cannabis plants is 200 plants. The quantity cultivated here was 228. 2. The relevant facts are that in April 2016 police started to investigate premises at 155 King Georges Road, Wiley Park because of information that they were being used to cultivate cannabis plants. They saw the accused coming in and out to collect bins and other events in mid-May. They executed a search warrant on 18 May 2016. 3. I accept from the agreed facts that the whole house had been converted to the production of cannabis. There were numerous plants in every room with irrigation systems, lighting and lightshades, they were in various stages of growth and ranged from small plants in pots in the kitchen to large plants already in bud in the other rooms. As I have said, there were 228 plants growing in plastic containers and there were also seedlings in the kitchen. The fully grown plants were in the living room. 4. The offender was in the house at the time. He was arrested and taken to the police station. He engaged in a record of interview and provided some assistance to the police immediately, albeit not necessarily admitting his guilt immediately. He told police that he had been hired to take care of the plants and was being paid $150 a day. He told police he did not know who was paying him. He also said that in return for the role he undertook, $5,000 had been transferred back to his family in Vietnam. He is a Vietnamese citizen who at the time was lawfully present in Australia on a tourist visa. Whilst he initially gave police an explanation that was not consistent with this plea, I accept that that is no longer maintained. 5. He had been living on the property for six months, I accept, and for the previous two months had been looking after the plants. He was not paid for the first four months but had been given food and allowed to remain there. His role was to water the plants with a pump once a day. Another Vietnamese man came to feed the plants once a week. I accept he did not know the name of the people who delivered the plants and had seen two other Vietnamese people in the house at times. He knew nothing about the way in which lights and electricity had been set up because that had occurred before he had arrived. He said that the windows were blacked out when the plants arrived. He did not seem to be responsible for the payment of the bills or the like. 6. He assisted police by giving them the password to his mobile phone and told police that the numbers of the person who fed the plants and the person who had forwarded money to his family were there. There is no further evidence in relation to the police investigations of those people, but he gave the police the opportunity to identify them and pursue that. 7. He has been in custody bail refused since the date of his arrest on 18 May 2016. 8. This is obviously a serious offence. The maximum penalty of 20 years indicates that, as does the standard non-parole period. 9. I accept that this offender's role in this cultivation was very much at the bottom of the range. He was there watering the plants only. He was not involved in the setting up of the process. There is no indication that he was to obtain anything or had any knowledge of who else was involved, where the plants would go in due course or exactly when they would be harvested. His role was limited to watering the plants, obtaining $150 a day for that and had received $5,000 previously by way of transfer to his family. It is on this basis that I make the finding that the objective seriousness of his offending is very much at the bottom of the range, well below the midrange in terms of objective seriousness. For that reason and the fact that this is a plea of guilty, the standard non-parole period does not apply strictly, but I must bear it in mind as a guideline when setting the appropriate sentence. 10. As I have said, this is a serious offence and the penalties indicate that. These offences are difficult and expensive to detect. The amount of hydroponically grown cannabis in the community is regrettably high. The Court is only too aware of the devastation that all prohibited drugs have on the community, both in terms of those who use them and also others in the community who become the victims of the behaviour of those people with a need to obtain those drugs often by way of robbing houses or people to obtain funds for these sorts of drugs. Regrettably also, hydroponically grown cannabis appears to have a very serious and deleterious impact on many people, leading to psychotic behaviour, it would appear. There is no doubt that this is the reason why the penalties are so high. Of course the large commercial quantity is capable of amounting to a hundred kilos of this drug. This was only 228 plants, just over the bottom limit for this offence. This is another factor that is relevant in assessing the objective seriousness. 11. This was a plea of guilty at the earliest opportunity in the Local Court. There should be a 25% discount to reflect the utilitarian value of that plea. That is high, because a trial was avoided and there was no need for expert analysts, for police, for surveillance and the like, to come to Court to give evidence and that is something that has been the case ever since the day the offender was arrested. As identified by the Court of Criminal Appeal in R v Thomson and Houlton and Ors, the maximum 25% discount should apply for the utilitarian value of that plea. 12. The offender comes to Court as a 37 year old Vietnamese citizen. I accept from the psychological report that he came from an impoverished background, he has a good relationship with his mother, he is married with two children aged 12 and eight. His wife and children remained in Vietnam when he came to Australia. His family, and particularly his mother, worked in rice fields, in the rice industry. There was very little money to be had andhe grew up in a very poor household. He tried to provide for his family but the ventures that he attempted were not successful. He was persuaded to come to Australia thinking that he would make very high wages here. He did not come with the intention of committing a criminal offence. He has no criminal convictions either here or in Vietnam. His passage to Australia was paid and he owed that money to these people. They apparently provided him with this accommodation initially. They also sent the $5,000 to his family. 13. He worked legally when he first came to Australia but found that that money was not sufficient to pay back the debt. He then yielded to temptation and when asked to house-sit these cannabis plants, did so. He did it for financial gain, being the need to repay this debt and thereafter to send money to his family. It seems to me that attempting to make a distinction between need and greed is not necessary. Clearly he did it for financial gain but that financial gain included a desire to improve the lot of his family in Vietnam. They have been, I accept, adversely affected by his charging and imprisonment for this offence because they are receiving absolutely nothing from him now. His desire is to return to them as soon as possible and take up their financial support. He has little contact with his family in Vietnam because of the cost involved in attempting to telephone them from custody. 14. The psychologist's report indicates that he had limited education but some education. He, no doubt, will be able to obtain employment in due course. Inevitably, he will be deported once he has served his term of imprisonment. He is relatively isolated in the prison community. He speaks virtually no English and requires the assistance of other Vietnamese inmates to make his needs known which of course is not always available. He will experience his time in prison with a degree of isolation because of his language problems and lack of any family in Australia with whom he can communicate until he is ultimately sent back to Vietnam. There would seem to be no suggestion that he is anything other than a model prisoner whilst in the custody of the Corrective Services Department. 15. I accept that he has shown a degree of remorse, although not without some conditions. Even as recently as the psychologist's report, he appears to downplay, to an extent, his involvement in this offence but there may be many cultural and other reasons for that response. 16. His prospects of rehabilitation, it seems to me, are good. He is extremely unlikely to commit any further offences in Australia because he is unlikely to be here, and on the basis of his history, and the other material, he is unlikely to commit offences on his return to Vietnam. 17. He will not have access to any courses and the like whilst in custody because of his language difficulty. 18. I have read and taken into account the decision of the Court of Criminal Appeal in Wei v R [2015] NSWCCA 66 which is instructive, albeit for a less serious offence. 19. Taking all of these matters into account I have concluded that absent the plea of guilty an overall term of imprisonment of about five years would be called for. After applying a discount of 25%, that gives rise to an overall term of imprisonment of 3 years and 9 months. 20. There are special circumstances as follows: 21. 21 1. This is his first time in custody. 22. 22 2. He will experience his time in custody more onerously than others because of language and isolation. 23. I have ultimately concluded that a non-parole period of 2 years is necessary. Anything less than that, it seems to me, does not reflect all of the relevant sentencing issues. I indicate, too, that I have taken into account issues of general deterrence when setting this sentence. The sentence will also operate by way of specific deterrence which is a matter I have already taken into account when finding that his prospects of rehabilitation were good. 24. For those reasons I make the following formal orders: 25. The offender is convicted. 26. He is sentenced to a non-parole period of two years commencing 18 May 2016, expiring 17 May 2018 with parole thereafter of one year and nine months commencing 18 May 2018, expiring 17 February 2020 giving rise to an overall term of imprisonment of three years and nine months, commencing 18 May 2016, expiring 17 February 2020.