Bao Nguyen v Regina - [2006] NSWCCA 448

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Bao Nguyen v Regina [2005] NSWCCA 448

FILE NUMBER(S):
2005/1187

HEARING DATE(S): 16 December 2005

JUDGMENT DATE: 08/02/2006

PARTIES:
Bao Nguyen, Regina

JUDGMENT OF: Mason P Barr J Hall J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1235

LOWER COURT JUDICIAL OFFICER: Solomon DCJ

COUNSEL:
Applicant: M Dennis
Respondent: G Rowling

SOLICITORS:
Applicant: Greenfield Lawyers
Respondent: S Kavanagh

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Grant leave to appeal and allow the appeal. Quash the sentence appealed from and substitute a sentence comprising a non-parole period of three years, commencing on 29 January 2004 and expiring on 28 January 2007 and a balance of sentence of two years and six months expiring on 28 July 2009.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/1187
MASON P
BARR J
HALL J
8 FEBRUARY 2005

BAO NGUYEN v REGINA

Judgment

MASON P: I agree with Barr J.
BARR J: Bao Nguyen has sought leave to appeal against a sentence imposed in the District Court. He pleaded guilty in that Court to one count of knowingly taking part in the cultivation of not less than the large commercial quantity of prohibited plants, namely cannabis. On 5 January 2005 Solomon DCJ sentenced him to a non-parole period of five years and a balance of sentence of four years, a total sentence of nine years. The maximum sentence was twenty years with or without a fine.
Late in 2003 an organisation acquired the lease of a property at Mendooran. Labour was recruited. A portion of the property large enough to raise a large crop was fenced off. Using a dam, pumps and piping, those responsible set up an irrigation system. They cleared land as appropriate and planted, raised and cultivated a large crop of cannabis plants. Altogether there were a few more than thirty thousand plants. This was said to be the second-largest such operation ever detected in New South Wales. The street value of the mature plants would have been more than $50 million. Clearing and planting began in October or November 2003 and those responsible hired labour from members from the Vietnamese community in Cabramatta. Recruits were driven to the property by motor vehicle.
The applicant was one such recruit. He accepted the offer for a job for which he expected to be paid between $50,000.00 and $80,000.00. He worked on the plantation between October 2003 and 29 January 2004. On that day police, who had been watching the property, entered and arrested the eight workers present, including the applicant. The plants were then up to 1.5 metres tall and approaching maturity.
The applicant was taken to Dubbo Police Station and interviewed. He told the police that he had been working on the property since October. He had assisted in preparing the land, removing grass, digging holes and planting the crop. He had helped in constructing some of the irrigation pipes and had watered and fertilised the plants. He claimed to have learned from viewing a television broadcast between one and a half and two months after he first entered the property that it was unlawful to grow cannabis plants.
The applicant gave evidence before his Honour. His Honour did not accept his submission that he did not know until he saw the television programme that it was unlawful to farm cannabis. His Honour also rejected a claim by the applicant to have been unable to leave the plantation during the period that he was there.

His Honour noted the early plea of guilty and found in favour of the applicant that he came from a supportive family. He had travelled as a refugee from Vietnam to New Zealand, where he had settled. He had come to Australia in search of legitimate work and it was only when he was unable to find work that he was tempted to undertake this illegal operation. One of his reasons for doing so was to assist his mother to support his two disabled siblings.
The applicant was twenty-two years of age when sentenced. His Honour had regard to his youth and prior good character. His Honour accepted that the plea of guilty, apart from benefiting the community in a practical way, was evidence of contrition.
His Honour was satisfied that the applicant, who had been in custody since the day of his arrest, had taken steps to rehabilitate himself by doing good work in the prison system and by undertaking courses. His Honour took the view that the applicant’s need for continuing rehabilitation in the community justified extending the period of parole.
There is one ground of appeal, namely that the applicant has a justifiable sense of grievance by comparing his sentence with the sentences later imposed upon three co-offenders, Quang Trung Nguyen, Dinh Van Do and Viet Quynh Truong.
The co-offenders named in the ground of appeal were all arrested at about the same time and all pleaded guilty. As far as is known, the remaining workers are awaiting trial. Quang Trung Nguyen was sentenced by a second judge on 21 January 2005 and Dinh Van Do and Viet Quynh Truong by the same judge on 3 June 2005. The Court has been furnished in this application with copies of the remarks of the sentencing judge in each of those matters. The circumstances and the results of each sentence may be summarised as follows.
Quang Trung Nguyen entered a plea of guilty in the Local Court, which was accepted by the judge as having been made at the earliest opportunity. He was forty-one years old when sentenced. He carried out much the same cultivation activities as the others; watering, pruning, fertilising and spraying. He was expecting to be paid $100,000.00 for his labour. In addition, he had a special role. By agreement with the organisers he took the lease of the land and the agreement was that he should be paid $300,000.00 for the consequent risk of his detection. He threw in his lot with the authorities and promised to give evidence at the forthcoming trials. He was in protective custody. The judge accepted that he was contrite and allowed a combined discount for all the favourable subjective features of sixty per cent.
The judge was aware of the sentence already imposed on this applicant and supposed that the discount allowed for his plea of guilty must have been about twenty-five per cent. It would follow that Solomon DCJ had commenced with a period of twelve years. I think that that was a fair assumption. Even so, the judge was not prepared to commence Quang’s sentence so high and began with a period of ten years. The judge found that Quang’s involvement, and therefore the objective seriousness of his case, was greater than the applicant’s but justified the lower starting point by rating Quang’s contrition as “more profound” than the applicant’s and by observing that Freeman DCJ appeared not to have made any allowance for the applicant’s youth. As to these, Quang’s contrition was a factor in the sixty per cent discount and ought not to have affected the starting point. Freeman DCJ expressly allowed for the applicant’s youth. His honour said -
I note that the offender is twenty-two years of age and I must have regard to his youth in sentencing him.
There was in my opinion no justification for starting Quang’s sentence two years below the applicant’s or in fixing proportionate sentences for Dinh and Viet.
In the result, Quang was sentenced to a non-parole period of two and a half years and a balance of term of one and a half years.
Dinh Van Do was a forty-seven year old man engaged, as the judge found, as a toiler, doing the same work as the others. He claimed that he had realised only after arriving at the property that there was an unlawful operation in progress and that he had been unable, because of the remoteness of the property, to get away. The judge did not believe him. Dinh had been convicted and sentenced for importing heroin and imprisoned for nine years with a minimum term of five years. The sentence had expired in January 1999. His Honour rejected it as an aggravating factor in view of the period of nearly five years that had elapsed between the expiration of the sentence and the commencement of Dinh’s part in the cultivation. The judge allowed a twenty-five per cent discount for the early plea of guilty and for contrition.
The judge expressly declined to follow this applicant’s supposed starting head sentence of twelve years and adopted a starting point of eight years and six months. With the discount, that produced a head sentence of six years and four months. Special circumstances justified a non-parole period of four years.
Viet Quynh Truong was forty-seven years old when sentenced. He pleaded guilty in the Local Court. He was a man of prior good character. He did the same work on the crop as the others. The judge allowed twenty-five per cent discount for the plea of guilty, which was accepted as evidence of contrition. The judge adopted a starting point of seven years and six months, and that produced a head sentence of five years and eight months. The judge found special circumstances to justify a non-parole period of three years and eight months.
Leaving aside Quang’s criminality, each of the three offenders had committed the same offence in much the same circumstances. There were differences in the findings of one judge as compared to the other about the objective circumstances, but they were minor. For example, in sentencing Dinh, a labourer who performed the same functions for the same time as the applicant, the judge found himself, much against his inclination, bound to find that Dinh did not become aware that he was cultivating cannabis until the plants started growing. Such differences as there were were insufficient in my opinion to justify any fundamentally different approach to sentencing or to make inapplicable the principles of parity in the sentencing of co-offenders.
All the co-offenders were entitled to have the Court recognise that they had committed the same offence in much the same circumstances. That did not mean that they all had to be given the same sentence, of course. Proper recognition had to be made of their individual subjective differences: Lowe v The Queen (1984) 154 CLR 606.
Counsel for the applicant submitted that that is not what happened. I agree. Objectively the applicant’s case was much the same as the cases of Dinh and Viet. His criminality was less than that of Quang as lessee. Quang’s objective criminality was considered to justify a starting point of ten years and the starting point of the applicant’s sentence was higher, probably twelve years, even though Quang was older than the applicant, more senior in the organisation, had the special responsibility of becoming the lessee and stood to gain far more money than the applicant. In my view Dinh’s sentence ought to have reflected his prior conviction for importing an illegal drug. The applicant’s age entitled him to be treated more leniently than the other three, yet he received a sentence substantially longer than any other.
In my opinion the applicant is entitled to entertain a sense of grievance in comparing his sentence with those imposed on his three co-offenders.
The Crown submitted nevertheless that this Court should not interfere with the applicant’s sentence. First, it was submitted, it was a proper sentence made within the limits of Freeman DCJ’s discretion. Secondly, the sentences imposed on Quang, Dinh and Viet were so lenient as to be erroneous. The applicant’s undoubted sense of grievance was therefore not a legitimate one.
I accept that the sentence imposed on the applicant was one properly open to his Honour. I do not understand counsel for the applicant to have submitted otherwise. I accept the Crown’s submission that the judge who sentenced Quang, Dinh and Viet ought to have regarded the applicant’s sentence as a benchmark and cast those offenders’ sentences accordingly. The erroneous failure to do so was bound to give rise to a sense of injustice.
The Crown’s second submission gives rise to more difficulty. When this Court attempts to correct what it sees as disparity between co-offenders it can take account of a sentence that it regards as inadequate and may sometimes substitute a sentence which in other circumstances would be inadequate: R v Tisalandis [1982] 2 NSWLR 430. There may come a point, however, at which the comparative sentence is so unduly lenient that the Court will refuse to recognise it as a legitimate comparator. To do so would compound error: R v Diamond Court of Criminal Appeal, New South Wales, 18 February 1993, unreported; R v Steele Court of Criminal Appeal, New South Wales, 17 April 1997, unreported.
In my opinion the sentences imposed on Quang, Dinh and Viet were unduly lenient, but not so lenient as to render illegitimate the applicant’s sense of grievance. Although not of itself determinative, one reason for my conclusion is that the Crown has not appealed against the sentences of Quang, Dinh and Viet. In my opinion the Court should interfere.
The Court has remarked on a number of occasions that when the business of the sentencing court permits it, co-offenders should be sentenced by the one judge. When that cannot be done it is necessary for the second judge to have proper regard to the sentence imposed by the first. A miscarriage of justice resulted from the failure of the Court that sentenced Quang, Dinh and Viet to impose sentences that recognised the force and legitimacy of the applicant’s sentence.
I would make the following orders -
1. Grant leave to appeal and allow the appeal.
2. Quash the sentence appealed from and substitute a sentence comprising a non-parole period of three years, commencing on 29 January 2004 and expiring on 28 January 2007 and a balance of sentence of two years and six months expiring on 28 July 2009.
HALL J: I agree with Barr J.

*************

LAST UPDATED: 17/02/2006