Chhim v The Queen; Arslanov v The Queen
[2010] VSCA 347
•17 December 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2009 0949 | |
| CHAN CHHIM | Appellant |
| v | |
| THE QUEEN | Respondent |
| S APCR 2009 0951 | |
| ORHAN ARSLANOV | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | MAXWELL P and REDLICH JA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 11 November 2010 |
| DATE OF JUDGMENT | 17 December 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 347 |
| JUDGMENT APPEALED FROM | [2009] VCC 1650 (Judge Hampel) |
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CRIMINAL LAW – Sentencing – Co-offenders sentenced together – Sentence of three years and six months’ imprisonment on count of cultivation of commercial quantity of cannabis – Sentence of 12 months’ imprisonment on count of theft of electricity – Error of fact – Erroneous attribution by prosecutor of admissions of one co-offender to the other – Sentencing discretion re-opened – Co-offenders played different but equal roles in joint venture – Inability of prosecution to quantify amount of electricity stolen – Appellants re-sentenced to total effective sentence of two years and seven months’ imprisonment.
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Appearances: | Counsel | Solicitors |
| For the Appellant Chhim | Mr A P Lewis | Lethbridges |
| For the Appellant Arslanov | Mr L C Carter | Matthew White & Assocs |
| For the Crown | Mr S Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
I agree with Redlich JA.
REDLICH JA:
Both appellants pleaded guilty in the County Court to one count of cultivation of a commercial quantity of cannabis over a three month period in 2009 and to one count of having stolen electricity during seven weeks within that same period. On count 1 they were each sentenced to three years and six months’ imprisonment and on count 2 to 12 months’ imprisonment, three months of which was to be served cumulatively upon the sentence on count 1, making a total effective sentence of three years and nine months’ imprisonment. In both cases a non-parole period of two years was fixed. Both appellants complain that the sentences imposed were manifestly excessive. The appellant Chhim also identified a specific error on the part of the sentencing judge.
The appellant Chhim had purchased a house at 3 Turano Court, Roxborough Park at the commencement of 2009. It had been immediately converted into a ‘growhouse’ in which four rooms had been set up for the growing of cannabis. When police attended the premises to execute a search warrant, a total of 151 cannabis plants weighing between 48 and 51 kilograms were found. Some of the plants had been growing for between 10 to 12 weeks before the seizure. Further, a quantity of loose cannabis weighing 2.03 kilograms was found. The usual paraphernalia associated with a sophisticated hydroponics cultivation system was found. The electricity had been illegally diverted to provide for the growing of the crops. When the police arrived both appellants were present at the house. The appellant Chhim was at the time tending to the plants. It was not in issue that the appellant Chhim owned the house and that Mr Arslanov resided there.
Erroneous attribution of admissions to Mr Chhim
The learned prosecutor, in opening the case, erroneously attributed to
Mr Chhim certain admissions which in fact had been made by Mr Arslanov. No attempt was made by counsel for Mr Chhim on the plea to correct that error. Not surprisingly, her Honour, in outlining the facts early in her sentencing remarks, repeated that error. The appellant Chhim asserted that this error contributed in a material way to her Honour’s impugned conclusion that he did not play a lesser role in the joint venture than the appellant Arslanov.
The admissions made by Mr Arslanov, and wrongly attributed to Mr Chhim, were that he had lived at the house for a month; denied paying rent; provided details of the timetable for the growing of the plants; was able to give an estimate of the age and size of the plants, and claimed that he set up the whole house without anybody’s assistance.
It is apparent from paragraph [12] of the sentencing judge’s reasons that her Honour considered these admissions to be relevant to her sentencing of Mr Chhim, as they were plainly inconsistent with the account otherwise given by Mr Chhim as to his role. It is not possible for this Court to conclude that this error of fact did not influence the sentencing judge. In these circumstances, Mr Chhim is entitled to feel justifiably aggrieved by her Honour’s use of these admissions to his detriment. To avoid injustice, the appeal must be allowed, and the sentencing discretion must be re-opened in relation to the appellant Chhim. To ensure parity between the co-offenders, it must also be re-opened in Mr Arslanov’s case.
Resentencing
The evidence as to the respective roles played by the appellants
Both appellants participated in interviews with investigating police. The sentencing judge made plain during the plea in mitigation and in her Honour’s sentencing remarks that there were aspects of the accounts given by both appellants that were inconsistent, and that Mr Chhim in his interview had made contradictory statements. In addition, the sentencing judge made clear during the plea in mitigation and repeated in her sentencing remarks that she was troubled by the primary submission made by Mr Chhim that he had played a lesser role than Mr Arslanov. Her Honour stated during the plea that she was unlikely to act upon that assertion in the absence of evidence that would support it. Consequently, in her sentencing remarks her Honour observed that as no such evidence had been led, she was unable to make the finding that Mr Chhim had played a lesser role. Her Honour concluded that the two appellants were actively involved in a joint venture and on the evidence before her, she was not able to say that either appellant had a greater or lesser responsibility for the offences committed.
The appellant Chhim submitted that her Honour had erred in concluding that he had given an internally inconsistent account or that his account was inconsistent with that of Mr Arslanov. He submitted that her Honour should have concluded that his role was a lesser one than his co-offender, and that she ought not to have found that his motivation for participation in the venture was to make a profit. None of these submissions can be sustained.
The appellant Chhim told investigators that he owned the house. Initially he said that he had lived there for three months but subsequently stated that he did not live there but helped Mr Arslanov with the growing of the cannabis. Mr Chhim stated that he provided Mr Arslanov with food and other necessities and drove his co-offender around as Mr Arslanov did not have a licence to drive. He said that Mr Arslanov did not pay him any rent to live there. He said that the arrangement with Mr Arslanov was that he would get ‘a cut’ from the money which Mr Arslanov would obtain when he had finished growing the cannabis. Later he told investigators he did not know why the cannabis was being grown. He told investigators that Mr Arslanov was not paying any rent, but paid all of the bills with respect to the house.
On the plea it was said on Mr Chhim’s behalf that he made the mortgage payments. A psychologist’s report was tendered on his behalf in which he explained that by the reference to ‘a cut’ in his interview, he meant that Mr Arslanov would repay him for the mortgage payments. The appellant Arslanov told investigators that he had been paying Mr Chhim cash to stay at the house and had continued doing so until approximately a week before the investigators arrived. He said that Mr Chhim paid all of the bills with respect to the house, as he was strapped for cash.
The sentencing judge was entitled to use the statements that Mr Arslanov had made for the purposes of assessing Mr Chhim’s role in the joint venture.[1] The accounts given by the appellants were in material respects inconsistent. The appellant Chhim’s claim that he played a lesser role was rightly viewed by the sentencing judge with suspicion.
[1]R v Halden (1983) 9 A Crim R 30, 35 (Lush J); R v Cambareri [2001] VSCA 39, [21].
At the hearing, counsel for the appellant Chhim submitted that, notwithstanding the inconsistencies in the accounts given by Mr Chhim and his co-offender, the Court should come to the conclusion that Mr Chhim’s role in the joint venture, when looked at overall, was a lesser one. Counsel pointed to the fact that it was Mr Arslanov’s idea to buy the house, and his decision to put the house in Mr Chhim’s name and use it to grow the crop. It was Mr Arslanov who provided the $15,000 deposit for the house and the purchase money for the necessary equipment to grow the plants. Mr Arslanov, it was said, played the primary role in setting up the equipment and cultivating the crop.
The account given by Mr Chhim to the investigators and to the psychologist, however, amply supports the conclusion that his role, though different, was no less important than that of his co-offender. I accept the submission made by counsel for the respondent at the hearing that Mr Chhim and Mr Arslanov should be characterised as two partners who were making different but equally indispensable contributions to the joint venture to cultivate commercial quantities of cannabis, and that they should be treated equally. On the most favourable view of the account which he gave investigators and his psychologist, the conclusion was irresistible that Mr Chhim intended to profit from the sale of the cannabis. Even if her Honour had accepted his explanation of his ‘cut’, it was no less a profit even if the form of the benefit was repayment of the mortgage payments or other outgoings. Counsel rightly conceded this during oral argument. There was no error in the conclusion which her Honour reached.
Personal circumstances of the appellants
The sentencing judge in her careful reasons identified those factors which could be taken into account in mitigation of sentence, and they need not be reiterated here, with one exception. Counsel for the appellant Chhim submitted that the sentencing judge’s comment to Mr Chhim and Mr Arslanov that ‘[n]either of you seemed to have done anything, apart from stay out of trouble since being charged, to indicate that you have taken any steps towards rehabilitation’, was not, insofar as it applied to Mr Chhim, supported by the evidence and accordingly was not a finding open to her Honour. Counsel submitted that her Honour, and upon re-sentencing, this Court, should find that Mr Chhim has good prospects for rehabilitation.
Before this Court, numerous factors were identified which it is said were accepted by her Honour and were relevant to Mr Chhim’s rehabilitation, including that he was 26 at the time of sentencing; had no prior convictions; had a good employment history; had resumed co-habitation with partner and their two-year-old child, and had strong support from family and friends.
However, little was said on the plea in mitigation in relation to the question of his rehabilitation. While it may be said that those facts were present, the argument now advanced on appeal was not advanced before the sentencing judge. It is therefore not surprising that her Honour did not make a finding that Mr Chhim had good prospects for rehabilitation. Moreover, there is some force in the submission made on behalf of the respondent that only a limited finding could have been made as the very factors relied upon to suggest that he had good prospects for rehabilitation existed at the time that these offences were committed. Both before and after the commission of these offences, Mr Chhim had been in full-time employment, had the strong support of a wide range of family and friends and had been in a relationship with his partner and child, volatile as that relationship appeared to have been. While rehabilitation is one of the many factors that inform the instinctive synthesis, it does not diminish the need for there to be a reasonable proportionality between the sentence imposed and the gravity of the crime committed.[2]
[2]DPP v Higgs [2010] VSCA 154, [30].
Counsel for Mr Arslanov also made submissions to the effect that his client had good prospects for rehabilitation, given, among other things, his youth, his co-operation with police when arrested, his early guilty plea and his lack of prior convictions (with the exception of one appearance at the Children’s Court for theft in 2002 for which no conviction was recorded).
Count 1: cultivation of a commercial quantity of cannabis
In the recent case of Ngyuen v The Queen,[3] this Court considered numerous cases (set out in a table) in which an offender was sentenced for the offence of cultivating a commercial quantity of a narcotic plant. The sentences imposed in these comparable cases ranged from 10 months’ imprisonment to five years’ imprisonment, but in only one case cited was a sentence higher than three years and six months’ imprisonment imposed,[4] and in only one case was a sentence of equal length to that faced by the appellants imposed.[5] It was submitted on the appeal that the cases set out in the table in Ngyuen suggest that the sentence imposed on count 1 in relation to both appellants was outside the range available to the learned sentencing judge.
[3][2010] VSCA 127 (‘Nguyen’).
[4]R v Mason [2006] VSCA 55.
[5]R v Clohesy [2000] VSCA 206.
As I am satisfied that her Honour’s sentencing reasons contained an error of fact which may well have influenced her Honour’s instinctive synthesis in relation to Mr Chhim, it is not necessary for me to decide whether or not the sentence which her Honour imposed on the count of cultivation of a commercial quantity of cannabis was manifestly excessive. I consider that a different sentence should have been imposed. Having regard to the mitigating factors of Mr Chhim’s youth and his lack of prior convictions, I consider that the sentence imposed on him in relation to count 1 was too high. I would re-sentence the appellant Chhim to two years and six months’ imprisonment on count 1.
As I would re-sentence Mr Chhim, for reasons of parity between co-offenders and given the similar considerations of Mr Arslanov’s youth and lack of prior convictions, I would similarly reduce the sentence imposed on Mr Arslanov for count 1.
Count 2: theft of electricity
In relation to the sentence of 12 months’ imprisonment for the count of stealing electricity, the respondent conceded that the inability of the prosecution to quantify the amount and therefore the value of the electricity stolen by the appellants consigns this offence to a sentence of the lowest level of imprisonment. The respondent accordingly conceded that the sentence of 12 months on the count of theft of electricity was manifestly excessive and unsustainable on appeal. That conclusion is dictated by cases such as R v Ngo,[6] R v Adams,[7] and R v Do,[8] which show that 12 months’ imprisonment is beyond the range.
[6][2007] VSCA 240, [16] (Vincent JA), [20] (Curtain AJA).
[7][2007] VSCA 76, [7] (Buchanan JA).
[8][2004] VSCA 203, [12].
I would therefore also re-sentence both appellants in relation to count 2 and impose a sentence of two months’ imprisonment. I would order that one month of the sentence on count 2 be served cumulatively on the sentence on count 1, making a total effective sentence of two years and seven months’ imprisonment. I would fix a non-parole period of one year and four months.
Pursuant to s 6AAA of the Sentencing Act 1991, I state that had the appellants pleaded not guilty, I would have imposed on each of the appellants a total effective sentence of four years and eight months’ imprisonment, and a non-parole period of two years and nine months.
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