and Vi Nguyen v The Queen
[2013] VSCA 322
•15 November 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2013 0156 | |
| VI NGUYEN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NETTLE, REDLICH and COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 15 November 2013 |
| DATE OF JUDGMENT | 15 November 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 322 |
| JUDGMENT APPEALED FROM | The Queenv Vi Nguyen (Unreported, County Court of Victoria, Judge McInerney, 14 June 2013) |
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CRIMINAL LAW – Sentencing – Cultivation of drug of dependence, possession of drug of dependence and theft of electricity – Whether total effective sentence of three years and two months’ imprisonment with non-parole period of 22 months manifestly excessive – Whether judge failed to have sufficient regard to plea of guilty and long-term drug addiction – Criminal history – Whether errors in findings of fact – Whether applicant’s involvement more limited than found – Application dismissed.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr R F Edney | Doogue, O’Brien, George Solicitors |
| For the Crown | Mr P J Doyle | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
This is an application for leave to appeal against a total effective sentence of three years and two months’ imprisonment imposed on the applicant on pleading guilty to three charges of cultivating a drug of dependence (namely, cannabis); two charges of theft of electricity; and one charge of possession of a drug of dependence (namely, cannabis).
The individual sentences, orders for cumulation and attendant orders were as follows:
Charge
Offence
Max penalty
Sentence
Cumulation
1.
Cultivation of narcotic plant 5.2 kg
15 years’ imp.
2 years’ imp.
6 months’ imp.
2.
Theft
$1,625
10 years’ imp.
9 months’ imp.
1 month’s imp.
3.
Cultivation of narcotic plant 16.29 kg
15 years’ imp.
2 years and six months’ imp.
2 years and six months’ imp (Base).
4.
Theft
$1,131.41.
10 years’ imp.
9 months’ imp.
1 month.
5.
Cultivation of narcotic plant 4.6 kg
15 years’ imp.
6 months’ imp.
Nil.
6.
Possess drug of dependence
5 years’ imp.
9 months’ imp.
Nil.
Total effective sentence
3 years and 2 months’ imp.
Non-parole period
22 months’ imp.
Section 6AAA declaration
4 years and 6 months’ imp with non-parole period of 30 months.
The facts
The facts, as found by the sentencing judge, were that the applicant and her partner Huynh engaged together in an enterprise for the hydroponic cultivation of cannabis carried on at several locations.
Charge 1 involved cultivation of cannabis at Burwood. Those premises were leased by the applicant. The period of cultivation was from 22 November 2011 to 29 March 2012. The amount found was 13 plants comprising 5.2 kilograms. As the judge noted, the traffickable quantity of cannabis is ten plants or 250 grams.[1] Charge 2 (theft of electricity) related to charge 1. The amount of electricity stolen was valued at $1,625.
[1]Stated in the reasons as 250 kilograms.
Charges 3 and 4 arose out of police surveillance of the applicant and Huynh. By following them, police located a further production house at Clayton. Charge 3 related to cultivating 122 cannabis plants weighing 16.29 kilograms found at that site. As counsel for the Crown observed, that put the offence at the high end of non-commercial quantities. The period of cultivation was from 22 March 2012 to 11 May 2012. Charge 4 was of theft of electricity used in the cultivation of the crop the subject of Charge 3. The value of electricity was $1,131.41.
Charge 5 related to the house where the applicant lived with Huynh at Mitcham. Police searched the premises under warrant and found one cannabis plant weighing 4.6 kilograms. The period of cultivation was from 20 April to 11 May 2012. Charge 6 related to harvested, dried marijuana also found at the applicant’s home at Mitcham.
Ground 1 — Manifest excessiveness[2]
[2]Ground 2 was abandoned.
Under the heading of Ground 1, counsel for the applicant submitted that the individual sentences, total effective sentence and non-parole period were all manifestly excessive as a result of the judge failing to pay any or sufficient regard to the applicant’s early plea of guilty or to accept that it was indicative of genuine remorse. Counsel relied in particular on the fact that, despite detailed submissions as to the significance of the applicant’s early plea of guilty, the judge did not refer to it as such in his sentencing remarks, other than for his Honour’s declaration pursuant to s 6AAA of the Sentencing Act 1991 that, but for the plea, he would have sentenced the applicant to four years and six months’ imprisonment with a non-parole period of 30 months.
I do not think the argument to be at all persuasive. The judge referred in brief terms to all of the matters urged on the plea on behalf of the applicant and his Honour noted in particular the assistance which he derived from the applicant’s written submission. I also see nothing about the individual sentences, total effective sentence or non-parole period which suggests that his Honour did not give appropriate weight to any of those considerations. Perhaps, it would have been better if his Honour had devoted a little more of his sentencing remarks to what he perceived to be the significance of the plea. But there is no ground of appeal which alleges specific error in that regard.
Counsel for the applicant also argued — in effect as a particular of the ground of manifest excessiveness — that the judge erred in his assessment of the applicant’s previous criminality, in two respects, and that the total effective sentence of three years and two months’ imprisonment, although arguably in accord with the applicant’s previous criminality as the judge assessed it, was excessive relative to the applicant’s degree of previous criminality as it was in fact.
The first error was said to be that the judge noted that the applicant had been convicted of possession of heroin for which she had been given a one month suspended sentence, whereas in fact she had been sentenced to a fine of $500. The suspended sentence related to an offence of driving while suspended. The second was that the judge referred to the applicant as having been convicted of trafficking in and using heroin in July 2002 and being sentenced therefor to a Community Corrections order, whereas in fact the applicant had been put on an adjourned undertaking, without conviction, with special conditions that she abstain from the use of illicit substances and continue her rehabilitation.
I accept that the judge made the errors so identified. I do not accept, however, that the nature or magnitude of the errors could reasonably be regarded as material. The disconformity between the details as stated by the judge and the facts of the prior offending were, in this context, de minimis. Hence, in my view it is not reasonably arguable that either slip was productive of appealable error in the judge’s assessment of the nature and degree of the applicant’s prior criminal offending or otherwise in the sentence which his Honour imposed.
Counsel for the applicant contended that the judge erred in rejecting a submission put in the course of the plea that the applicant’s prior criminal offences of trafficking in heroin were all single cap offences. Counsel argued that the judge’s rejection of that possibility amounted to a finding adverse to the applicant which was not supported by the evidence beyond reasonable doubt.
I reject the argument. The judge did not make or purport to make a finding adverse to the applicant. His Honour simply rejected the submission on the basis that it was not established by evidence on the balance of probabilities. So to do was no more than a recognition that, on the evidence, there was nothing to say one way or the other what precise amount had been had been trafficked. All that one could say was that the applicant had been found guilty of trafficking in a traffickable quantity.
Counsel for the applicant further submitted that the judge had overly emphasised the applicant’s prior convictions to the point of losing sight of their real significance and thus underestimated the applicant's prospects of rehabilitation. Counsel referred in particular to passages in the transcript of the plea at p.16 at lines 7‑9, p.18 at lines 22‑23, p.21 lines 8‑10, p.21 lines 12‑15, p.23 lines 20‑21, and p.23 line 8 and following, and also to the judge's reasons for judgment at paras.19‑13 which, counsel submitted, constituted a repeated emphasis upon the significance of the applicant's previous criminality not warranted when one took an overall view of the situation.
I do not accept the submission. As counsel for the Crown pointed out, each of the references to previous criminality at pp.16, 18, 21 and 23 of the transcript were, in effect, responses to submissions put by defence counsel on the plea as to the applicant’s prospects of rehabilitation and to an earlier submission as to the possibility of Verdins considerations ameliorating the penalty to be imposed. It was not a matter of the judge repeatedly overemphasising the significance of prior criminality as opposed to answering and pointing out to counsel why the submissions which counsel put on behalf of the applicant were not soundly based. Paragraphs 19‑23 of his Honour's sentencing remarks were equally not an overemphasis of prior criminality but, rather an explanation (in a fashion which was, with respect, unexceptionable) of his Honour's assessment of the prospects of the applicant's rehabilitation.
Counsel argued that the judge had erred in failing to give sufficient weight to the fact that this was the first time the applicant stood to be sentenced to an immediate term of imprisonment and the first time that she had been dealt with for an indictable offence in the County Court. It followed counsel said that the judge had reached the wrong conclusion in deciding that the prospects of rehabilitation were such as to warrant a serious penalty.
I do not think that there is any substance in that contention either. As the judge made clear in his exchanges with counsel in the course of the plea, and also in his sentencing remarks, the level of previous criminality and the repetitiveness of it, notwithstanding that in some years there had been no convictions, was serious and led to the conclusion that the applicant's prospects of rehabilitation were guarded.
Finally, under Ground 1, counsel advanced an argument that the judge failed to give any or sufficient weight to the applicant's long-term drug addiction and, more significantly, recent attempts at rehabilitation, including attempts to participate in commercial training and thus achieve some sort of commercial qualification for subsequent employment.
That point appears to me to be equally untenable. The judge expressly referred to and dealt with the applicant's long-term drug addiction and recent attempts at rehabilitation, as follows:
In addition, she tendered a report of Mr Cummins. Such report was dated 4 June 2013. Mr Jeffrey Cummins being a consulting clinical and forensic psychologist. Insofar as such report was concerned, as to the particular circumstances, it noted her history of drug dealing and being involved generally in the drug milieu. It noted her background. It notes the circumstances in which she had met her partner. It noted her comments that she stated she became involved in this offending at the request essentially of her heroin dealer, allegedly to whom she owed considerable money. One questions that when one looks at the long history in this case.
… she indicated to Mr Cummins that insofar as her rehabilitation is concerned that is totally dependent upon her being able to rid herself from her drug dependency and she noted that her capacity to have custody and care for her children also is so dependent.
There is no doubt, as was put by counsel, that the addiction contextualises this particular offending. …
…
Insofar as the documents tendered and the programs undertaken, as set out in Exhibit 3, it was put that for the first time Ms Nguyen has undergone programs to relieve her addiction. One would hope that that is so and that she continues with that program. As I say, one must be guarded, given her background, as to any effective rehabilitation. …
…
I will, of course, be as merciful as I can in the circumstances. I am cognisant from a humane point of view of the impact of a sentence upon Ms Nguyen on her children and of course importantly upon her mother who is left again to look after them. However, the point has to be made that people who continue to be involved in serious criminality such as this can hardly come to the Court and suggest that one should take into account the effect upon their children when they have been so negligent insofar as their own liberty is concerned and the interests of their own children.
Axiomatically, each case turns on its own facts and circumstances and, in this case, it is clear that the applicant had significant prior convictions for drug offending. It is also significant that the extent of her involvement was found in this case to be at a supervisory level. Plainly enough, she was a significant recidivist whose offending was likely to continue unless she were given sufficient reason to change her ways. That warranted a sterner sentence than might otherwise have been required.
Conclusion
In the result, I am not persuaded that the sentence was excessive and, having regard to what the judge correctly found to be the guarded prospects of rehabilitation of the applicant, I do not consider that there is anything arguably exceptionable about the non‑parole period. For those reasons I would dismiss the application for leave to appeal.
REDLICH JA:
I agree.
COGHLAN JA:
I agree.
NETTLE JA:
The application for leave to appeal is dismissed.
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