IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT MELBOURNE
CRIMINAL JURISDICTION

CR-20-01669
Indictment No: L11965645

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
KHANH QUOC NGUYEN		

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JUDGE:	HIS HONOUR JUDGE TINNEY	
WHERE HELD:	Melbourne	
DATE OF HEARING:	17 March 2021	
DATE OF SENTENCE:	25 March 2021	
CASE MAY BE CITED AS:	DPP v Nguyen	
MEDIUM NEUTRAL CITATION:	[2021] VCC 337 	

REASONS FOR SENTENCE

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Subject:  Cultivation of cannabis (commercial quantity) over 7 times commercial quantity. 180 plants weighing 49KG as well as 130KG of dried harvested cannabis. Paid per crop.3 month between dates period. Foreign national. No prior appearances.  43 years old.

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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Mr A. McCowan	Office of Public Prosecutions	
			
For the Accused	Ms N. Low
	Victoria Legal Aid	

HIS HONOUR:  
1	Khanh Quoc Nguyen, you have pleaded guilty to one charge of cultivation of a commercial quantity of cannabis, punishable by a maximum term of 25 years' imprisonment.  
2	You are 43 years of age and have no criminal history at all.  
3	This matter was opened to me on Wednesday, 17 March, by Mr McCowan who appeared on behalf of the Director of Public Prosecutions.  He opened in accordance with an agreed amended written opening dated 15 March 2021, which was marked as Exhibit A on the plea.  I say it is agreed, as your counsel told me it was.
4	In such circumstances, there is no point at all in my slavishly restating all of the agreed facts.  The document does that, and I will sentence on the basis of that agreed statement.
5	That written opening, viewed in conjunction with the various photographs attached to the depositional materials, discloses the nature of the crop that you were cultivating at the time of arrest.  The charge arises from a six week investigation conducted by the Cobram and Wangaratta Crime Investigation Units.  Police executed a warrant at 40 Boorin Street, Cobram, on the 
18 August 2020.  You and your offsider fled the house but were located, you hiding in nearby bushes, your offsider when he fell off a roof and did himself some serious injuries.  He plays no further role here as he has subsequently absconded from hospital.  So, there is no question of parity of sentence to consider.
6	Within the property, there was an elaborate hydroponic cannabis setup.  All the 'usual' gear associated with such a setup, including filters, transformers, power banks, chemicals and lighting.  There was a bypass, though you are not charged with theft, as it is not suggested that you set up these premises.  There were 180 plants weighing over 49 kilograms.  Also 130 kilograms of dried, harvested cannabis. 
7	You were interviewed and made admissions to residing at the property and to being paid $10,000 per crop.  You said you had been there three months and were due to hand over this crop, your second, the following Thursday.  You said you had already received two payments of $10,000 (see Question 66).  There is no information available to me as to the weight or plant number of the first crop covered by this charge.  In your interview, you describe planting plants.  Also harvesting and drying and then weighing the harvested cannabis.  Giving up that product to the boss.  You said it was you and you alone.
8	You have been in custody from the date of your arrest on 18 August of last year.  The chronology of listing is set out and plainly, you have pleaded guilty at a very early stage.  So much then for my summary of the summary. 
9	The basis of your plea is that you were engaged by others to tend to the plants.  That is accepted to be the position by the prosecution.  I will sentence you on that basis, but the terms of that arrangement are not the subject of any agreed position.  Whether you are to be described as a crop sitter or house sitter is by the by.  That is just a label.  I need to consider what you actually did.  
In Mitigation
10	Ms Low conducted a thorough plea on your behalf.  She had prepared a detailed written outline and relied also upon a curriculum vitae and a couple of Course documents.
11	She placed before me details of your personal and family background and your account of why you came to this country.  She provided your explanation for committing this serious crime, namely financial need arising from debts related to your mother, as well as gambling debts.  She made submissions about the objective gravity of the offending and your good prospects of rehabilitation.  Though you will certainly be deported, there was no mitigatory submission on that score.  Explicitly, it was not relied upon.  You had no legitimate expectation of settling in this country and were here illegally from 2019.  As I understand it, you look forward to the day you can return home to Vietnam.  The sooner the better, from your perspective.
12	Ms Low raised a number of matters in mitigation in her very comprehensive plea.  Chiefly they were:  
•	Your co-operation with the police and your early guilty plea;
•	The presence of some remorse;
•	The absence of any prior criminal history; 
•	The impact of the COVID-19 global pandemic upon your custodial experience and your isolation in custody.
13	Your counsel conceded the inevitability of an immediate term of imprisonment and one requiring the fixing of a non-parole period.  She placed before me a range of cases dealing with past sentences imposed.  I will say more about them later, but I regard it as virtually of no value at all to place before me decisions of my brother and sister judges.  I do not know why it keeps happening.  I had read the cases before coming onto the Bench and, as I thought likely, none is on all fours.  There are differences in every direction, including as to age, personal background, plant quantity and weight.  Further, I hardly need to be given other sentencing decisions of other judges of this Court.  I have myself sentenced very many cultivators over the years. 
Prosecution
14	The prosecutor, Mr McCowan, had prepared some written submissions as to sentence, which were marked as Exhibit B.  They were uncontroversial as they set out many matters of well-established principle.  Though accepting that your role was at a lower level, they submitted that the scale of the operation was large enough, you fulfilled a critical role and for monetary reward.  It was over a between dates period.  They submitted correctly that the offence was a quantitative based one and here, they submitted it was a high quantity, over seven times the commercial quantity.  Obviously, the Crown were calling for a prison term and one requiring the fixing of a non-parole period, but so much had already been conceded by your own counsel. 
Background
15	I turn then to your background, but I will do so quite briefly as I have no reason to doubt the family details provided to me.  You are 43 years of age and were born on 14 April 1977 in Vietnam.  You were raised by your parents.  Both parents are still living.  I am told your mother has been in poor health.  I was told that she had a stroke but that was way back in 2010.  You finished secondary school, obtained a degree and then a Masters in Information Technology and you were employed as a lecturer for many years.  I am told that you were the head of your faculty prior to resigning and coming to Australia in 2016.  You are in good health.  You are a married man with two children aged 17 and 15 years.  Your wife and children all live in Vietnam.  I was told that you were not paid sufficiently to cover the costs of your mother's medical bills relating to a stroke she suffered in 2010, started borrowing money and fell into heavy debt.  You also turned to gambling.  You left your job in Vietnam and travelled to Australia intending to work.  I note that you told police you came to study.  Why you would need to study is something of mystery.  This was in 2016, by which stage I was told the debt was $120,000.  You were employed in a number of jobs in Australia and sent money back.  In 2019, you started gambling in this country and incurred more debts.  
16	There is not any evidence before me as to the existence of a debt, much less a debt of the magnitude spoken of.  Your instructions were that the debt was incurred with friends but also with banks, where presumably there would be some available proof.  None has been provided on the plea.  There has been no evidence placed before me as to the medical position of your mother.  Only your interview account mentions the fact of remitting some money back to Vietnam, but not the reason.  There is no objective evidence of money being remitted or the amount so remitted.  Your mother's stroke occurred over 10 years ago.  I am quite sceptical as to your account.  It makes little sense that you would leave your wife and children and your secure job and your homeland without any secure employment.  To do what?  To study?  Why?  To work?  Where?  You also must have financed the flight out and the courses that you enrolled in and completed.  
17	Since being in custody, you have been working and also have had daily contact  with your wife and less frequent contact with your children.  Your counsel placed before me your account of offending.  Of how you came to be introduced.  Of your intention to stop after two crops.  There was some mention in the interview of meeting someone in a coffee place (see Question 96).  I have no reason to accept that you were planning to stop after two crops.  Why would you?  You were installed in the crop house and were the critical worker there.  You could scarcely describe the role of the other man who fell off the roof, though he was your friend from St Albans.  It was suggested that he was someone who brought food.  I have no reason to accept that on the balance of probabilities either.  That makes no sense at all.  As is usually the case in this area, there is much by way of assertion from the Bar table and very little by way of evidence in support.
18	Even on your own version, you were being paid decently, $10,000 per crop.  You have given two versions as to how much you have received, $20,000 in the interview and $10,000 in your instructions to counsel. 
19	It is a between dates charge and you stated that you were ready to hand over the second crop the week after your arrest.  I suppose it is possible that you  misunderstood the questioner, even with the use of an interpreter.  However, that does not seem likely to me, given the very simple question posed at Question 66.  It is not critical to my task.  It does not really matter that much, but the difference suggests to me that neither account is likely to be true.  That you were not being truthful as to the extent of the financial reward.
20	This case demonstrates the large potential yield of a crop house such as this.  This was not some low level venture.  Far from it.  You were an intelligent man.  There was no reduced culpability by reason of youth.  You were a mature man, not some silly teenager, and you were obviously making a calculated decision for financial gain.  
21	You have no prior criminal history at all.  That is common enough for those committing this style of crime.  You look forward to the day you leave these shores and return to your family and your homeland.  That is some time away and that is owing to the seriousness of your crime.
22	I turn then to consider the matters raised on your behalf.
Guilty plea
23	You have pleaded guilty at the earliest opportunity.  You have taken responsibility for your offending and have facilitated the course of justice.  The community has been saved the time, cost, as well as the effort involved in a contested committal or a trial.  These are matters of real worth in your favour and I take them into account in mitigation. 
24	I also do take into account your cooperation with the police.  You made admissions.  Those admissions to the police were used to furnish the between dates span of the charge.  It is true there had been an investigation running for six weeks, but it is not clear to me that the police would have had evidence of the duration of your involvement.  You provided it and that is of real value to you now.  But for that admission, it is possible that the period may have been less or even limited to the day of arrest, as so often is the case.  You provided the name of your 'boss', though no submission has been made as to that having any great value here.  There is no undertaking to give evidence or anything like that.  But I treat it as indicative of someone who was cooperative, which is the way I am asked to view it. 
Remorse
25	A guilty plea is often indicative of some remorse.  Yours was an early one.  I am prepared to find that you feel some remorse.  You have no history before the courts, have seriously offended and will return to Vietnam with your tail very much between your legs.  I take into account the presence of some remorse in mitigation. 
	Rehabilitation
26	Your counsel argued that you have good prospects of rehabilitation.  I have no reason to doubt that.  You are a 43-year-old man and have no criminal record at all.  You have had a career and a good one at that.  You have family support awaiting you.  You have made what can only be described as a terrible decision to commit this serious crime.  You did so as a mature and intelligent man.  You did so on a between dates basis.  You could have had no illusions as to how serious this was.  I have no doubt about that at all.  You were taking a shortcut to financial gain.  That is very common in this area.  I am simply not satisfied on the balance of probabilities that there was actually any dire financial need at all. 
27	You have been in prison since your arrest and it certainly has not been a good time to be there amidst the global pandemic.  You are isolated from your loved ones, though in your case that is not a product of the pandemic and resultant restrictions in visiting.  The isolation arises as your family live overseas.  So, it is not a pleasant experience being in custody for the first time in such a setting.  That experience will be significantly extended by me.
28	I would be surprised if these things did not play a role in deterring you into the future.  
29	I accept your counsel's submissions that you have good prospects of rehabilitation, but they will of course take shape in your homeland.  
	COVID-19
30	I accept that the COVID-19 virus and the response to it by those running the prisons has increased the prison burden.  Prison has been a more stressful environment.  Social distancing has not been easy.  No doubt there is worry about catching the virus in such a setting where there is no level of autonomy.  You served a 14 day quarantine period and a further eight days in isolation, and many programs have not been fully available for a decent portion of your time in custody.  There have been no visits for the lion's share, if not all of that period but, unlike many, that has not greatly impacted upon you.  Your counsel was explicit in that submission.  You do not have many people available to visit you.  In fact, strangely, in one respect, you may even be in a better position than you would have been without COVID-19, with daily calls to your wife.  To cope with the limitations posed by COVID-19, the prisons have allowed more telephone contact or virtual visits.  That has been one of the few benefits for prisoners, especially those with relatives overseas.
31	I accept, however, that to date it has been harder in custody for you than would have been the position in a COVID free time.  Further, the isolation from your family, that is just a fact.  It makes your custodial experience more onerous and that is irrespective of the pandemic.  I take that into account as well.
32	As to what lies ahead on the pandemic front, it really is impossible for me to know.  That uncertainty is not that easy for you, and I take that into account.  The impacts of the virus upon prisoners has been lessening, with visits previously scheduled to resume on 23 January and courses getting back underway, but we have been experiencing ups and downs.  The events of the last six or seven weeks with the circuit breaker lockdown swiftly called, and the temporary suspension of visits shows that whilst we have been travelling very well in the community, it is not that difficult to see how restrictions may spring up again as they have.  There will be some ongoing anxiety amongst prisoners as to how they will fare.  I take that into account.  I cannot know if limitations will start up again.  I must not speculate about that.  In person visits have resumed for the time being.
33	I take into account the impact of the virus.  I do not pay much regard to this concept of isolation flowing from your lack of English.  Firstly, you must have some English, you must do as you have obtained a certificate and a diploma in this country.  Secondly, you chose to commit a serious crime in a country where your mother tongue was not the common language.  That was a choice you made.  Thirdly, the Vietnamese language is hardly a rarity in prison.  The greater burden arises from the COVID-19 virus and your isolation from your family, and I have regard to that.  I leave for others the issue of whether a court can have regard to emergency management days.  I will not in this case, I make that clear.  However, I know from recent cases, that a prisoner in your setting can obtain the precise details of the amount of the declaration in advance of sentence.  Counsel have told me of that in the past.  It seems strange that there might be an approach that would permit double-dipping.  That is, the court taking into account in mitigation in a general way the increased prison burden without also factoring in the extent to which that has been redressed.  As I say though, I will not take into account the extent to which there may be provision of emergency management days in your case. 
	General remarks
34	I address now some general remarks to you.  The prosecution do not suggest that you are the principal who set up this crop house.  I will not treat you as one.  That does not alter the scale of the enterprise in which you were a player.  Not just a player.  The key player.  You were committing this serious crime for financial reward and, as I have said, I am not satisfied on the balance of probabilities of the existence of any real financial need, dire or otherwise.  I am not satisfied on the balance of probabilities that you were in any material way vulnerable or in any way ripe for any exploitation.
35	Virtually every person engaged in this style of crime is doing so for reward.  The existence of the debt is relied upon as reducing your culpability.  I am not satisfied on the balance of probabilities that there was any real financial need in your case.  You instruct counsel that quite aside from the claimed debts, that you started gambling in this country.  As I said earlier, there was no material placed before me as to the existence of any debt, sizeable or otherwise.  It was not even mentioned in the interview though there was some mention of money being remitted. 
36	You were an intelligent, mature man and must have factored in the risk and benefits. You must have weighed them up.  You have gone into this venture with your eyes wide open.  There is nothing in terms of mental health issues or age or family background leading to any reduction in culpability.  Upon being arrested at the end of the interview, when asked if you wanted to say anything, you said:  'I know what I'm doing is wrong. I ask for the leniencies (sic) of the Australian Government' (see Question 116).
37	You made a choice to commit this serious crime.  
38	I have to take into account the nature and the gravity of the offence.  Though it is hard for me to know with any certainty how you became involved, how you were recruited, or the true nature of your relationship to others in the hierarchy, I will certainly sentence on the basis that you were not the principal or the person who set up the crop.  The Crown accept that you were engaged to tend the crop and I will act on that basis.  You are a mile removed from a low level example of a crop sitter.  On your own version, you were installed in the house to do everything to bring the crop to a successful outcome and then to plant another crop.  To hand over the dried, harvested product to the boss.  I am only able to gauge the size of the second crop.  Well, it alone is very large, over seven times the commercial quantity:  130 kilograms of dried cannabis and another 49 kilograms in the 180 plants.  You were the key player in this crop house, taking all the steps to ensure the success of the crop and being paid accordingly.  I have great difficulty accepting your account of the financial rewards on offer.  I am not satisfied of your account on the balance of probabilities and I do not accept for one moment the suggestion that you were  just going to stop.  What evidence is there of that?  Why would you stop?  The prosecutor, in his written submissions, quoted from one of my sentencing decisions, the case of Nguyen.
39	I am going to repeat to you what I have said to so many others over the years.  I have sentenced over a dozen commercial cultivators in the last few years and I am but one judge of the many in this building.  There are only so many ways one can describe these principles, and I am not striving for originality.
40	As I have said in other cases, I say now in yours, this crop and its ultimate success has been interrupted by the execution of the warrant by the police.  You clearly knew that you were embarking upon a very serious crime.  How can there be any doubt about that given your intelligence and the nature of the set up?  This was very obviously a highly elaborate, highly organised and highly criminal activity and that would have been readily apparent upon first entering these premises.  It would have been obvious to you that sizeable illegal profit was central to the event, not for you, but at least for someone above you in the hierarchy.  Why else would such equipment be obtained and set up and a house be converted into what was essentially a cannabis factory?  Why else would you be installed in the house in country Victoria?  Why else would you expect to be paid for your efforts, whatever it was that you were to be paid?
41	I am not able to ascertain the true expected financial reward here.  I am certainly not satisfied of your account on the balance of probabilities, but even your account of $10,000 per crop is hardly a pittance.  You described a crop coming to harvest every six weeks.
42	This was an unmistakably professional undertaking and you knew that fact. 
43	I have said before and repeat now to you that there is seemingly a never-ending stream of people such as you prepared to involve themselves in cultivation of narcotic plants for reward.  Regrettably, this Court sees them pretty much on a daily basis.  Those superior in the hierarchy are prepared to pay such people as you to perform that critical role.  
44	That speaks very clearly as to the large potential illegal profits involved in this style of prevalent venture.  It is actually serious criminal conduct.
45	Commonly, the plea conducted in this Court is to point to the absence of aggravating features, to the absence of any role in the set up and to the absence of any share in the profits.  Often enough, counsel say, by way of submission, their client is but a 'mere' crop sitter.  This downplays, in my view, the seriousness of the task actually performed.  The people up towards the top of the hierarchy very seldom sit down in the dock of a court or I suppose if they do, they pretend to be crop siters.  The principals stay out of that dock because they employ and pay underlings to tend to the crop.  You and people like you are completely essential to the success of the crime.  People like you lessen the risk of apprehension of the principals.  
46	Without players such as you, that is, people who are prepared to involve themselves in the management and the cultivation of crops such as these, the crops would not exist.  Your role was obviously a necessary and vital one or you would not have been asked to perform it.  See the case of Doan.
47	This crime carries a maximum term of 25 years' imprisonment.  I must pay regard to the maximum sentence.  

48	Sentencing always involves the balancing of a number of purposes or principles.  I have to take into account your prospects of rehabilitation.  I believe they are good. 
49	I must consider the need for specific deterrence, that is deterring you from committing crimes in the future.  You have been arrested, you have been charged and you have pleaded guilty.  You have some remorse.  You have no criminal record.  You have already been in custody for a significant enough time and for the first time.  Specific deterrence has already been achieved to a degree and so it seems sensible to moderate the weight to be given to specific deterrence, as well as to community protection in this case.  
50	However, as the case law makes crystal clear, this is an offence that requires substantial punishment. 
51	General deterrence is also a very significant purpose of sentencing in cases such as these.  As I said a moment ago, there is seemingly a never-ending stream of hired underlings coming before this Court.  The message must be sent to people such as you, not to engage in this serious crime.  Those who may be tempted in the future to commit this sort of crime must understand that there is the sizeable risk of arrest, prosecution and a substantial prison sentence waiting in the wings. 
52	Those who choose to engage in this activity, at whatever level, are always taking a calculated risk.  You were.  Future likeminded potential offenders must understand that with that potential reward comes a significant and a real risk of detection, prosecution and then the likelihood of the imposition of a significant term of imprisonment.  The message sent by the Courts must cause future potential offenders to actually pause for thought and to reconsider their decision.  The risks must neutralise or outweigh the lure of the easy financial reward. 
	Current sentencing practice
53	I pay regard to current sentencing practices.  It is not a single controlling factor, but only one of the matters a court must have regard to.  I have looked at the Sentencing Snapshot No. 247 of August 2020.  The statistics disclose that in the period covered by the data, that is 2014-15 to 2018-19, where prison was selected, sentences ranged from a period of a little over a month to six and a half years, with the most common sentence falling in the band of two to less than three years.
54	I have also looked at material held at the Judicial College of Victoria sentencing manual, which includes an overview of commercial cultivation sentences dealt with in the Court of Appeal.  Also some recent Court of Appeal cases set out in that publication.  I disregard any cases dealing with large commercial quantity as there is a higher maximum penalty at play for that offence. 
55	There have been so many cases over the years querying the adequacy of sentencing practices for this crime.  Correctly so, in my view.  The case of Nguyen sets out a number of those cases at paragraphs [139]-[142].  That case spoke of the inadequacy of sentencing practices for this crime when committed at certain levels.  The Court of Appeal was critical of the fact that the current sentencing practice had seemingly remained the same, notwithstanding the many occasions that it had been questioned in the Court of Appeal.  Not just the same, but also in a very narrow band, with a merging of more serious cases into the lowest band.  There is much by way of statement of principle within that case that is clearly relevant to my task.  For instance, that case contains statements as to the seriousness of the crime of commercial quantity cultivation of cannabis and the weight to be given to punishment and general deterrence.
56	That case though (Nguyen), was not focussing on low-level players and was more directed at what are described as 'medium-level' cultivators, whatever that may mean.  I do not treat you as falling at that level, though you are not far from it.  The Court of Appeal spoke of the compression of sentences that seems to have taken place over the years.  That is in fact very much on display in that sentencing snapshot that I have referred to, where a crime punishable by a 25 year maximum period had only two offenders sentenced to greater than six years over the period covered by the statistics (2014-15 to 2018-19).  The court spoke of the need for an increase in sentences at least in relation to mid-level players so that the range of sentences are uplifted and substantially expanded.  So, there must be some caution exhibited then when looking at sentences that predate that decision or, for that matter, any statistical material based on those earlier sentences.
57	However, you are described, whatever adjective is employed, you were exercising all the decisions that had to be taken on a daily basis in relation to this crop.  You were handing over the weighed harvested crop and even on your own account, you were receiving $10,000 per crop.  It was not isolated conduct.  You had been doing it for three months.  It is a between dates charge. You were committing an unmistakably serious crime.
58	The Court of Appeal has spoken often enough as to the danger of applying adjectives or labels to describe a person's role.  Those sorts of things can actually obscure a person's conduct.  Focussing on the actions and conduct is what is important, not the label that is applied to describe it.  As the Court of Appeal said recently in yet another case of Nguyen:
'A sentencing judge is required to sentence an offender … by reference to all of the facts of the case (including all of those able to be gleaned about the offender's role and involvement) and not by reference to whether the offender can be given some particular appellation'.
59	I do not need to speculate about what you were doing or try to draw inferences as to your role.  What was it that you were doing in this crop house?  Everything.  Everything that had to be done.  Your counsel set out in paragraph [27] the matters relevant to my consideration of the objective gravity of the offence.  This is the almost obligatory section of written submissions constructing the most serious examples of the offence and contrasting that high level Principal offender with a person engaged to cultivate, for reward.  Submitting that your offence had none of the qualities of an offence committed by a high-end Principal.  Well, the short answer is if you had been engaged in this crime as a Principal, I would sentence you as one.  It is not mitigatory that you are not the owner of the house or not established in the set up or the financing of the undertaking.  It is not mitigatory that you did not install the bypass or did not invest funds or had no role to play in distribution.  All these things are matters of aggravation.  Had you done those things or any of them, I would be dealing with you for a more serious instance of the offence.  You would be more culpable.  It is not mitigatory that it was in a single house.  No doubt had there been a network of houses or locations, well, that would be a more serious example, but it is not mitigatory that you cultivated all of this cannabis in a single location.  So what?  We see the same sorts of submissions made on an armed robbery plea.  The submission that the offender used a stick rather than a knife or a gun or that there was no physical force or violence.  But nowhere in the criminal law is there greater desire to have a label applied to describe an offender's role than in this area.  The quest to be labelled a crop sitter is at the heart of so many pleas conducted in this area.  What does it actually mean in terms of moral culpability?  That will depend on the cultivator, on his age, on his frame of mind, of what he is actually doing, why, how, for how long, for how much money.  Matters of youth and mental health may come into play in reducing culpability.  Issues of need may also come into play.
60	You were doing what you were doing in the expectation of sizeable enough financial gain.  I am prepared to accept that you were not the Principal or directly sharing the profits.  Plainly though, you had a stake in the success of the cultivation.  You were being paid per crop.  All this talk of lesser culpability associated with the crop sitters has been given far too much prominence, in my view.  The analysis previously conducted by the Sentencing Advisory Council (Major Drug Offences Current Sentencing Practices paper) discloses that the majority of matters brought before this Court involve alleged crop sitters or people claiming some minor or ancillary involvement.  It is pretty much the exception to have a Principal.  I cannot think of another joint crime where we spend so much time analysing and differentiating culpability.  Your conduct was deliberate, well informed, was over three months, and involved, on a daily basis, criminal conduct which you knew to be criminal.  You were doing it for reward, and I do not accept your account of financial hardship and debt driving the offence.  Where then is the lessened culpability?  What mitigatory feature reduces your culpability?  That is the problem that has been caused, in my view, by fixing on to labels.  For what you did, there is no greatly reduced culpability at all.  Is it as serious as being the big boss and establishing a chain of crop houses and recruiting various crop sitters with a view to vast illegal profit?  Well, of course it is not.  That is in part because we have this notional hierarchy of culpability.  Those in that setting have a greater stake in the success of the venture.  They are the ones who are making the big money.  They are enriched.  Their culpability is higher. 
61	But your criminal conduct was high enough in culpability in the way that term is usually defined. 
62	Your culpability was certainly nowhere near at the lowest of levels.  Some crop sitters are given very little control.  Some have more minor tasks.  Some are paid next to nothing.  Some have pressing need.  Some minimal intelligence.  Some youth on their side.  Some, a vulnerability that goes some way to eroding their will.  Some have a very brief connection to the crop.  You have none of these things to reduce your culpability. 
63	I have mentioned the sentencing statistics and also some other cases which I have looked at.  Statistics have inherent limitations.  They will never tell much of the real story.  They are just numbers.  When a sentence is imposed, a court is required to take into account a whole range of matters of both aggravation and mitigation.  Those sorts of things are never disclosed in the bare data.  I am not going to sentence you according to what has been the most common previous sentencing outcome as disclosed in the statistics.  I am a judge, not a statistician.  Every crime is different and so too is every offender.
64	Your counsel has seen fit to take me to a number of past sentences.  Many are decisions of this Court.  So, I engaged in that exercise that has become far too common in this Court, that of trawling my way through these various other cases.  Having done so, I observe that it was virtually of no use. 
65	There is often enough an aspect of cherry picking in this exercise of placing other sentences before the court.  Even when there is not, I must say, I regard this practice which has developed of being taken chapter and verse through other sentencing decisions of other judges for other offenders for other crimes as being of minimal value.  It regrettably seems now almost obligatory on a plea for this Court to be taken to a review of other instances of other sentences imposed upon other offenders and sometimes even to have counsel pointing to distinctions between this offender and that.  Almost as though past sentences stand as some form of precedent.  They do not.
66	I asked your counsel whether any of the cases were truly comparable.  I am dealing after all not just with 180 plants weighing in at just over 49 kilograms, which itself would be a commercial quantity both by plant number and weight.  I also have 130 kilograms of dried harvested cannabis and the between dates span of the charge.  Your counsel conceded that none of these cases is truly comparable.  So what then is their value?  Next to nil.  There really is nothing in any of the cases to which I was referred dictating any particular outcome in your case.  There is no such thing, by the way, as one correct sentence.
67	I note in the decision of Nguyen, that the sentences of three years and eight months were confirmed in the Court of Appeal.  I note also the statements of that Bench of the Court of Appeal (Priest and Beach JA) that sentences in that region are entirely unexceptional, even for crop sitters.  
68	It is clear from the many cases in this area that cultivation in a commercial quantity of this drug is a serious and prevalent crime where a term of imprisonment is almost always unavoidable.
69	It is equally clear from the many decisions in this area that general deterrence must be at the forefront of any sentence imposed by the court.
70	This is a quantitative based regime.  Weight and plant number, whilst not the only matters of importance, will always be of real importance.  Commercial quantity for cannabis is 25 kilograms or above, or 100 plants or above.  You had 180 plants.  They weighed 49 kilograms.  You also had 130 kilograms of dried harvested cannabis.  So all up, you had close to 180 kilograms of cannabis.  The fact is a commercial quantity could be constituted by 100 very small cannabis plants.  Plants not well established, seedlings with very uncertain prospects.  They could weigh less than a few kilograms.  I have had enough cases like that in the past.  Or cases where the weight sailed just over the 25 kilograms threshold with a far smaller number of plants and less sophisticated set up.  Well, you cultivated close to 180 kilograms of cannabis and this occurred in a sophisticated and unmistakably serious criminal set up and over a period of three months.  One where you had a decent level of autonomy.  A large commercial quantity is set at 250 kilograms.  That figure is fixed at 10 times the commercial quantity.  You had over seven times the commercial quantity by weight.  As far as I am concerned, this was serious offending and falling nowhere near the lowest levels, even though of course I treat you as someone engaged to cultivate the plants for reward.  The term 'crop sitter' covers a multitude of differing acts and connections to a crop.  Being a 'crop sitter' does not somehow make you immune from a sizeable prison term.  That is because being described as a 'crop sitter' does not relieve me of the need to consider the seriousness of your actual crime and your reasons for committing it.  That label does not provide the answer.  That label does not shield you from my considering the nature and size of this actual cultivation and the absence of matters actually reducing your culpability. 
71	I have engaged in a last look at the sentence in endeavouring to avoid a sentence that might be crushing upon you and to ensure that the overall effect is consistent with your overall actual criminality.  Regrettably though, you have committed a serious offence. 
Disposal order
72	I am satisfied that it is appropriate to make the disposal order in this case.  It is not opposed, and I order pursuant to s.78 of the Confiscations Act, the forfeiture of the items in the schedule and I direct that they be held and dealt with in the manner contemplated by that signed order.
Sentence
73	On the charge of cultivation of a commercial quantity of cannabis, I convict and sentence you to 54 months or four and a half years' imprisonment.
Non-parole period
74	I fix a non-parole period of 32 months or two years' and eight months' imprisonment.  
Section 18 pre-sentence detention
75	You have already served 219 days of this sentence by way of pre-sentence detention and that s.18 declaration is entered into the records of the court.  
Section 6AAA  
76	I have taken into account your guilty plea.  If you had pleaded not guilty and been found guilty of this offence by a jury, I would have convicted and sentenced you to six years imprisonment.  I would have fixed a non-parole period of four years and two months.  And that statement is also to be entered into the court records.  
77	Anything else from you, Mr McCowan?
78	MR McCOWAN:  No, Your Honour.
79	HIS HONOUR:  Anything else from you, Ms Low?
80	MS LOW:  No, Your Honour. 
81	HIS HONOUR:  All right.  Now, we have the interpreter obviously available.  I am not sure how long we have got the link for.  I will just check that.  I am assuming you will make arrangements to discuss today's sentence with your client in a private setting; is that fair for me to assume that?
82	MS LOW:  Yes, I will do that.  
83	HIS HONOUR:  Are you wanting to use this link simply to say something about it to him while we have go the interpreter or not?
84	MS LOW:  I do not need it, Your Honour.  I will make an appointment.
85	HIS HONOUR:  All right.  Well, that completes the matter then.  I will sign the formal order in a moment.  So, thanks very much, Mr Interpreter.  Mr Nguyen, Ms Low, your lawyer will be in touch with you in due course to discuss what has happened here today and your rights in relation to this sentence; do you understand?
86	OFFENDER:  (Through interpreter) Yes, Your Honour.
87	HIS HONOUR:  Thank you.  Well, that completes the matter then.  
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