R v Truong [2023] NZDC 19281 (1 September 2023)

Last Updated: 21 October 2024

IN THE DISTRICT COURT AT WHANGAREI I TE KŌTI-Ā-ROHE KI WHANGĀREI-TERENGA-PARĀOA

CRI-2020-090-002541

[2023] NZDC 19281

THE KING

v

OAI DAC TRUONG

Hearing:	1 September 2023
Appearances:	A Tupuola for the Crown D Reece for the Defendant
Judgment:	1 September 2023

NOTES OF JUDGE D J MCDONALD ON SENTENCING

[1] Mr Truong, on 13 July 2023 the jury found you guilty of three charges of cultivation of cannabis, three charges of possession of cannabis for sale and one charge of attempting to pervert the course of justice. I like you are bound by the jury’s verdicts. I can take a view of the facts that are not inconsistent with the jury’s verdicts.

The facts

[2] On Thursday 16 January 2020 quite by chance a helicopter being used in the aerial annual cannabis eradication programme by the Northland Police was flying in the Te Kōpuru area. The helicopter flew over some large, poorly-built polyhouses that had been constructed near what appeared at first sight to be an abandoned sawmill on Oturei Settlement Road, Te Kōpuru.

R v OAI DAC TRUONG [2023] NZDC 19281 [1 September 2023]

[3] A very experienced police officer in the helicopter, Sergeant Brown, was looking down as the helicopter traversed the area. He was curious about the five polyhouses so asked the pilot to fly back so that he could have a better look and at a lower level. Highly-suspicious activity was seen when that occurred, particularly a number of men who were seen running around the polyhouses. They eventually got into a 4x4 motor vehicle and drove off from the scene at speed. Sergeant Brown very quickly determined that the polyhouses were being used for the cultivation and large-scale cultivation of cannabis.

[4] Helicopter landed; the police ground crew arrived. What the police found was mind-blowing for them, they had never seen anything so big and so sophisticated. Sergeant Brown who had been involved in aerial operations for years in Northland told the jury which I accept this was the largest cannabis-growing operation that he had ever seen. The scene at that address was described in some detail during the trial.

[5] There were 4,065 cannabis plants at various stages of growth. All the plants were being grown in peat material inside plastic pots. A hydroponic watering and fertilising system had been installed. Large tanks outside the polyhouses were filled with water and then pumped from a water source, fertiliser was added and then a very sophisticated system was put in place so that each individual plant in its individual plot was drip-fed.

[6] A light deprivation system as explained in the evidence was used to regulate the amount of sunlight reaching the plants to maximise growth. This involved black plastic sheeting under the white sheeting which could be pulled across to make the inside of the polyhouses dark.

[7] The evidence overwhelmingly establish that this was a purpose-built, large-scale cannabis cultivation operation solely for profit. It was constructed each of the polyhouses by rough-sawn timber untreated in a way that could easily be destroyed or people could flee from.

[8] Inside one of the polyhouses was a cannabis-trimming machine manufactured in Canada that was being used to manicure the cannabis heads, that is the cannabis

heads the really important, profitable part of the cannabis plant from the leaf and stalks. In New Zealand that has previously been done by hand, a very time-consuming process. A number of these machines at this site and the other two sites and in fact in your warehouse in Auckland were found, meant that this industrial growing operation could use this particular machine to very quickly manicure the cannabis heads.

[9] The potential yield from these five polyhouses and the cannabis plants inside them was $8 million.

[10] As I heard both from the expert Detective Sergeant Binden and other officers, these polyhouses were set up in such a way that there would be revolving cannabis cultivation, three a year making a potential yield of $24 million. That did not take into account the dried cannabis, almost 48 pounds, that was found.

[11] What was your role in that operation? I am satisfied that you were one or two rungs above the gardeners. All the gardeners that were found and have been dealt with were Vietnamese nationals who had come to this country on visitor permits but I would infer they came here for the sole purpose of being the gardeners lured here no doubt by the money that could be made.

[12] You are Vietnamese.

[13] You sourced this site through TradeMe. You travelled to Oturei Road from Auckland where you discussed with the owner of the land and who owned the sawmill if you could rent it. It was rented to you. What surprised me during the trial is why the owner of the mill and his son had not been charged. This was set up by you. You then returned and assisted in the building of the polyhouses.

[14] Your explanation to the jury that you thought that whoever was going to be cultivating there were going to be growing blueberries or vegetables for the Auckland market was absolute nonsense. It was rejected outright by the jury and rightly so. One does not commercially grow blueberries and vegetables for the Auckland markets in a remote, out-of-the-way place under crudely-constructed polyhouses out the back of beyond on Pouto Peninsula away from prying eyes at the end of a dead-end road. You

purchased a large amount of the gear needed to set up this illegal cannabis operation. Example from PrimeHort in Kaiwaka, a large, legal operation that sells horticultural products. I heard it had 2,000 customers including such large companies Mitre 10. You walked in there and after some negotiation bought about $32,000 worth of gear including 3,150 plastic pots, 333 bales of peat moss and other items and had them delivered to the Oturei Road operation. When you were asked to pay for them you pulled out a bundle of cash and counted out $32,000-odd. Quite right Mr Weymouth at PrimeHort became suspicious. He required you to provide genuine identification, photo identification and other information. He was well aware of the money laundering legislation now in place in this country.

[15] Once the gardeners had arrived they lived in primitive conditions you delivered food and supplies a number of times to them. You gave evidence that you drove up there in your van, opened the side door and dragged all the food and other bits and pieces out and left it in the middle of the road before driving off. I do not accept that for one minute. The jury did not. Your role was to fully support the gardeners, it was an important role. Maybe and I only say maybe there were others above you but you were in it up to your neck.

[16] Following further enquiries including a search of your house, a power bill was found. Tenancy agreement with your fingerprints subsequently found on them was found. That led the police to [address deleted] in Kerikeri.

[17] On 28 July 2020 the police went there with a warrant, another remote area, another area where you had obtained a tenancy on part of the property. You knew one of the owners of the property. Her partner worked with you on occasions. When the police turned up and walked past the very rough house at the beginning of this long driveway they saw a number of large polyhouses built in the same manner in the same style as the ones in Te Kōpuru. The same pots, same irrigation, same cannabis manicuring machine and the same light deprivation system, Vietnamese gardeners living in primitive conditions. It like the Te Kōpuru growing operation was set up to grow continuously. Some was being harvested, some was nearly ready for harvest, younger plants and the seedlings.

[18] 2,116 plants growing in the Kerikeri operation. Forty had been pulled out but not yet manicured so 2,156 plants. Again, it was set up so that three crops a year could be harvested, two in summer and one in winter.

[19] Conservative estimate of the value of the plants in there was $10,780,000.

[20] Although there is not the same evidence of purchases by you of using cash of large amounts of horticultural products as with the Oturei Road it was plainly obvious that the same criminal organisation had set up both, that is you. How you ever thought you could hoodwink a Whangārei jury that you were just an innocent caught up in the criminal enterprise and that you knew nothing about what they were doing is completely beyond me.

[21] I now move to the third site. You had purchased a rental property in Massey, Auckland. It involved three units which you had initially rented to three different tenants. The police were led there through documents found at your home to that operation.

[22] This was a different operation obviously because it was in the middle of residential area than the two in Te Kōpuru and Kerikeri. Having said that, what the police found when they went there was a very sophisticated indoor cannabis growing operation. The house had in fact been turned into a hothouse. All the rooms except one bedroom and part of a bathroom had been turned into growing cannabis. Holes had been punched in the walls so that the gardeners could get from one unit to the other without having to go outside. There is a grow tent, large grow lamps, cables, fans, a sophisticated electrical system had been set up. I will not describe it any further, one just needs to look at the photographs to see that this was designed to get as many crops a year from this indoor operation as possible.

[23] You said that after tenanting the place you never visited, you never knew what they were doing.

[24] The 231 cannabis plants found would yield $924,800, three to four months from seedling to harvest which would have returned you 2.7 million a year for three crops.

[25] You were fully aware of what was going on, I find. You signed the tenancy agreement yourself as tenant and as landlord. When the police went to a warehouse that you had recently set up they found an Aladdin’s cave full of items for growing plants, horticultural supplies mainly imported from Australia but a large number of the items in your Aladdin’s cave were the type of the same type as used in your cultivation operation at Massey and in relation to the other two cannabis sites.

[26] Again, you attempted to convince the jury that you had the necessary expertise to run such a business. I struggle to understand how you as a chef and a commercial painter would have the necessary knowledge and expertise to set up a horticultural import business.

[27] I now deal with the attempting to pervert the course of justice.

[28] You were arrested at the Te Kōpuru grow. Within days of being released you contacted Mr Weymouth and attempted to get him to back up your story that when you called to his place you were always with others, that all you were was the translator and on the days where you might have called yourself you always had to run away somewhere and take instructions from the boss. You wanted him to say that you were an innocent hooked into a criminal enterprise you knew nothing about. To his credit Mr Weymouth did not believe what you were telling him, he did not believe that is all you were. When he would not come to Auckland to see you so you could discuss it further you sent your wife and children together with a translator up to his place to try and convince him again that he should back up your story, which the jury have found and which I find was totally false.

[29] Now I move to the purposes and principles which are well-known. They include but are not limited to, to hold you accountable for your offending, to deter you and others from engaging in such large-scale commercial operations cultivating prohibited plants, to denounce your conduct, to impose the least restrictive sentence.

Starting Point

[30] R v Terewi is still the guideline judgment.1 Your offending falls into category 3 of Terewi that is the most serious class of such offending. It involves large-scale commercial growing usually with a considerable degree of sophistication and organisation. Starting points will generally be four years or more.

[31] Factors I take into account here setting the starting point for you are these:

• (a) This was three sophisticated, separate growing operations;
  
• (b) The yield from these three operations would conservatively if three crops a year were grown in each be around $24 million. Ms Tupuola for the Crown said it was closer to 39 million but I prefer to take the more conservative view of 24 million. It is highly unlikely that the profits from that 24 million would have entered the tax system in our country, it would have all been straight profit;
  
• (c) It involved your fellow countrymen as gardeners. Your role was that of an organiser providing the gear for the grow houses, building the polyhouses, setting up the cultivation in your rental in Massey. I do not with the greatest respect to Mr Reece’s submission in his written submissions and today that your role was only just above that of the gardeners. You were fully involved in this;
  
• (d) Each site was and must be treated as an individual. The first site at Oturei Road was found on 16 January 2020. The indoor growing operation at your house at Stoddard Road was found on 23 June 2020 and the [address deleted] in Kerikeri on 28 July 2020. Once you were caught on 16 January or knew about it because you were not arrested for months later you continued to support the grow operations both in your own house, your own rental and at [Kerikeri].
  

1 R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 (CA).

[32] Ms Tupuola has referred me to Taylor v R where there were 2,400 plants in two purpose-built wire enclosures in a pine plantation and outside growing operation with also 9,624 seedlings.2 The proposed income from that seven million and the start point was six and a half years. Both counsel have referred me to R v Daley.3 There were 3,331 plants, 3,780 seedlings and 2,325 plants that were being dried. Five and a half years for the cultivation with a two-year uplift for the possession for supply making a starting point of seven years six months.4

[33] Ms Tupuola submits that analysis of those three cases when looked at the facts in your case that a start point for the cultivation and possession charges of 11 years is appropriate. She then submitted that an uplift of two years for the attempting to pervert the course of justice making a start point for all your offending of 13 years.

[34] Mr Reece referring to Daley submitted to me that four years for all the cannabis, that is the three cultivations and the three possession of cannabis for sale is appropriate. When one stands back and looks at totality he submitted an eight-month uplift for the perverting.

[35] I consider I should look at each of the three sites separately. There needs to be no uplift for the possession of cannabis for sale, that was part and parcel of the growing. I consider if just the Te Kōpuru site and the Kerikeri site were looked at that a start point of five and a half years for each and a four years for Massey if it stood by itself, being a very sophisticated indoor grow that if I add those individual sentences up would be 15 years. But I need to stand back as is required by the Supreme Court and decide where your criminality for all of this offending falls. What should be the starting point when one does that? In my view when one does that a starting point of seven years is appropriate.

[36] I consider now the attempting to pervert. Ms Tupuola is quite correct in her submission that attempting to pervert the course of justice strikes at the very heart of the criminal justice system. You devised a plan where you thought you could get out

2 Taylor v R [2013] NZCA 417.

3 R v Daley [1999] NZCA 297; [1999] 17 CRNZ 388.

4 R v Jeffries [1991] NZCA 410; [1992] 1 NZLR 134 (CA).

of what you had done by getting Mr Weymouth to lie. I look at totality in relation to that. I consider a one-year uplift is appropriate, making a start point for all your offending of eight years.

[37] I look at personal matters.

[38] There is no uplift for previous convictions.

[39] In your favour, you have no relevant previous convictions. You are otherwise I am told of good character.

[40] I look at the pre-sentence report which is helpfully written for me by an experienced probation officer. It is brief. It is brief because you still deny the offending, that is your absolute right. You ask that I treat you leniently for a number of factors, the main one being your wife who is unable to speak English. She runs a business. You were her translator, you do the books.

[41] I deal with you in this way, in relation to the Te Kōpuru cultivation you will be convicted and sentenced to three years’ imprisonment.

[42] In relation to the Kerikeri cultivation you will be convicted and sentenced to three years’ imprisonment cumulative on the three years.

[43] Massey one year making seven years.

[44] In relation to attempting to pervert the course of justice you are sentenced to five months’ imprisonment.

[45] That makes an end sentence of seven years five months.

[46] I make an order for forfeiture of all the exhibits and other equipment seized by the police in relation to the three cultivations. I do not consider I can make such an order in relation to your warehouse, that is covered by the proceeds of crime. Crown do not now seek forfeiture of the money found in your house. I do not need to make

an order for destruction of the plants because they will all be dead. That is the sentence I impose upon you.

[47] The last matter I must consider is this: the Crown have submitted that I should make a minimum, impose a minimum term of imprisonment before you can be considered eligible for parole. They seek 50 per cent under s 86 of the Sentencing Act 2002. I do not consider that such an order is required to deter and denounce something more than that in my view is necessary. It is more appropriate in my view to leave it to the parole board as to when you should be paroled.

[48] The possession for supply, on each of those you are convicted and sentenced to 18 months’ imprisonment to be served at the same time, so 18 months on each one of those but concurrent with his other sentences.

Judge DJ McDonald

District Court Judge | Kaiwhakawā o te Kōti ā-Rohe

Date of authentication | Rā motuhēhēnga: 06/10/2023