District Court New South Wales Medium Neutral Citation: R v Said [2018] NSWDC 430 Hearing dates: 26 November 2018 Date of orders: 26 November 2018 Decision date: 26 November 2018 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: At [9]. Catchwords: SENTENCING – cultivate prohibited plant – Drug Misuse and Trafficking Act – special circumstances – term of imprisonment Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Cases Cited: R v Huang [2000] NSWCCA 238 R v Nguyen [2009] NSWCCA 181 R v Shi [2004] NSWCCA 134 Texts Cited: None Category: Sentence Parties: Regina (Crown) Abdul Said (Offender) Representation: Mr Moran (Crown – DPP) Mr Steward (Counsel for the Offender) File Number(s): 2018/113956 Judgment 1. Mr Abdul Said is a young man born in March 1997. He came to Australia on a tourist visa in 2015, and appears to have been employed for some time and then got involved in activities which led to his arrest on 11 April 2018 on a charge of cultivate prohibited plants, being cannabis, by enhanced indoor means, the quantity not less than the commercial quantity under s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 which carries a maximum penalty of 15 years imprisonment with no standard non-parole period. 2. He has been in custody since 11 April 2018, and it is common ground that a term of full time custody is required by the circumstances of this case and it is unnecessary for me to consider any alternatives under s 5 of the Crimes (Sentencing Procedure) Act 1999 and in the light of the purposes of sentencing set out in s 3A of the Act. It is common ground that he should receive a 25% discount on the term of imprisonment due to the utilitarian value of the early plea and that the sentence of imprisonment should commence on 11 April 2018. 3. The Crown does not contest the proposition that a finding of special circumstances should be made in view of a number of matters summarised in the written submissions, namely, this is his first custodial sentence; his custodial sentence is undoubtedly more onerous due to his lack of family support here; there is some limited evidence of a mental illness and his rehabilitation will probably be best assisted by support on the outside as indicated by the psychologist. 4. The evidence demonstrates that police executed a search warrant on an address in Lidcombe on 11 April 2018. The front doors were barricaded and they had to gain access through the rear. The offender was inside and he was arrested at the time. There was a sophisticated enhanced hydroponic cannabis growing operation in place. There were a total of 100 cannabis plants, more than double the commercial quantity, set up in five purpose built enclosed rooms. It is agreed that the estimated street value of the plants was $491,000. There were additional growing rooms with transformers, lampshades, light globes, cables and fertiliser. 5. He engaged in a record of interview after his arrest in which he volunteered that he had been looking after the plants. His job was to water and feed them. His manager told him to do that. He had been promised $30,000 but there is no evidence he received any money. He had been working there for about three weeks and he was supposed to stay there for about a year. He had instructions to call his manager if anyone comes. He was just provided weekly food. All of that satisfies the accurate description by the Crown of this man as a resident gardener in this operation and certainly not a principal. 6. It is clear, as almost universally is the case in this type of matter, that he committed the offence for financial gain, so that is not a particularly aggravating factor to be taken into account, but I do give it some limited weight. The offence is towards the mid-range of objective seriousness in light of the matters which I have referred, and I make that assessment taking into account, as Mr Steward says, a consideration of a number of factors, including the number of plants, the maturity, the condition, street value, the sophistication, the duration of his involvement, his role in the enterprise, his expected gain and the extent of any horticultural skills. 7. Although contained in a report which is not tested and subject to verification on oath, the history seems unremarkable, and a reasonable one from which to proceed to sentence. He has no prior criminal history although there is a reference to prior criminal convictions in Malaysia but no evidence as to what they are. He has had experience with alcohol, cannabis and methamphetamine since he was 16. He has limited English skills and no family support. He will inevitably be deported on his release from prison, but his imminent deportation is not a matter to be taken into account on sentencing in accordance with authorities. He was probably vulnerable and he has poor insight into his offending, so that as the Court said in R v Shi [2004] NSWCCA 134, his moral culpability is somewhat diminished. 8. He has been assessed as someone who needs treatment while in custody and on release and he would need that support with the assistance of an interpreter. His prospects of rehabilitation are reasonably good in my view in the light of the evidence. Mr Steward put points to a number of mitigating factors: there being no evidence that the cannabis had been disseminated into the community; he has no record; he was a person of good character; he is unlikely to reoffend; his prospects of rehabilitation are as I have described. He has expressed remorse both by his actions; by his plea and by his expression in a letter to the Court today, to the effect that he knows he has done the wrong thing, promises he will not do it again, he wants to be a good person; he has been scared by his experience in gaol and he wishes to go home and improve his life, all of which are entirely understandable sentiments. I have no doubt that the experience of being in custody for such a young man in a foreign prison has been a difficult one and as the Court said in R v Huang [2000] NSWCCA 238 and R v Nguyen [2009] NSWCCA 181, cited by Mr Steward, those are matters that can be taken into account. 9. For those reasons the orders that I make are: 1. The offender is convicted of the offence. 2. I impose a sentence of imprisonment of 2 years, 3 months, to commence on 11 April 2018 and expiring on 10 July 2020. 3. I impose a non-parole period of 14 months, expiring on 10 June 2019. The offender is eligible for release to parole on that date. 4. I find special circumstances. 5. The back-up charges on the s 166 certificate are withdrawn. Note – This extempore judgment was revised without access to the court file ********** Amendments 15 March 2019 - Anonymised unique personal identifier on cover sheet and at [1]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 March 2019