Do v The Queen

[2013] VSCA 189

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0102

VAN THANH THI DO
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL ACJ and BUCHANAN JA
WHERE HELD:	MELBOURNE
DATE OF JUDGMENT:	15 July 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 189

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CRIMINAL LAW – Appeal – Sentence – Cultivate commercial quantity of narcotic plant – Post-sentence diagnosis of terminal cancer – Short life expectancy – New evidence – Mercy – Appeal allowed – Non-parole period reduced to enable immediate eligibility for parole.

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DETERMINED ON THE PAPERS

NO ORAL HEARING REQUESTED

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearances
For the Respondent	No appearances

MAXWELL ACJ:

1. The applicant pleaded guilty to a serious drug offence and was sentenced on 13 December last year to a total effective sentence of two years and 14 days, and a non‑parole period of 16 months was fixed.  Her earliest release date is in September this year.

1. Since the date of sentence, the applicant has been diagnosed as suffering from incurable gastro-oesophageal cancer.  Her prognosis is bleak.  The medical evidence, which is accepted by the Crown, is that the applicant is not expected to live more than a few more weeks. 

1. That circumstance founds the sole ground of appeal.  For reasons which follow, I would grant the application for leave to appeal and allow the appeal, and re‑sentence the applicant such that the non‑parole period fixed in the re‑sentencing will expire today, the intention being that the applicant be immediately eligible for release on parole.  Orders to that effect will be made at the conclusion of the Court’s reasons.

1. Before I deal briefly with the circumstances, it is important to acknowledge the steps taken on all sides to bring this unhappy matter before the Court at the earliest opportunity.  Counsel for the applicant in the written case sought expedition of the hearing.  The Crown, in its response, conceded the ground and that it was appropriate that the sentencing discretion be reopened.  Our own Registry proposed that the matter be dealt with on the papers, rather than requiring a hearing, and the parties were content with that course.  The Court of Appeal always has a duty bench available to deal with urgent matters of this kind.

1. The applicant pleaded guilty to two charges, one of cultivating a commercial quantity of cannabis, the other of dealing with property reasonably suspected of being proceeds of crime.  The sentencing table, which records the sentences imposed and the direction for cumulation, is set out below.

Charge on indictment	Offence	Maximum	Sentence	Cumulation
1.	Cultivate narcotic plant (commercial quantity) [s 72A Drugs, Poisons and Controlled Substances Act 1981 (Vic)]	25 y	2 y	Base
Summary offence	Deal property suspected of being proceeds of crime [s 195 Crimes Act 1958 (Vic)]	2 y or 240 penalty units	28 days	14 days
Total Effective Sentence:		2 y 14 days
Non-parole Period		16 months
Pre-sentence detention declared:		213 days
6AAA Statement: If the appellant had been convicted after trial the total effective sentence would have been 2 years, 10 months’ imprisonment, with a non-parole period of 23 months.

1. The relevant facts are summarised in the applicant’s written case, as follows. The applicant and her husband co-accused were ‘crop-sitters’ at a residential premises in Kings Park between 14 April and 14 May 2012.  The applicant is 49 years old, and the co-accused is 52 years old.

1. Both the applicant and the co-accused had come to Australia from Vietnam and overstayed their visas.  The applicant and the co-accused planted and tended the cannabis in accordance with instructions provided by others, after being offered rent-free accommodation and payment of $400 per week as a means of repaying gambling debts.  Those debts were principally incurred by the co-accused.

1. On 14 May 2012, when executing a search warrant at the premises, police located 103 cannabis plants (73.06kg) in various stages of maturity (Count 1).  When searched by police, the applicant was in possession of $560 in cash (Count 2).

1. On the day of the arrest, the applicant participated in a record of interview at Sunshine Police Station and made significant admissions.  She has been in custody since that day.

1. The single ground of appeal is as follows:

In order to avoid a miscarriage of justice, the sentencing discretion should be re-exercised in light of fresh evidence that demonstrates the true significance of facts which were in existence at the time of sentence.   

1. The applicant relies on a medical report from two doctors at St Vincent’s Hospital.  As mentioned previously, the applicant suffers from incurable stage 4 cancer.  This was undiagnosed at the time of plea and sentence, although the applicant had already exhibited symptoms of what proved to be that cancer.  No submission was made on the plea in mitigation regarding her health;  but in early January this year, the applicant presented at St Vincent's Hospital with symptoms.  The diagnosis of cancer was made in January 2013, and it is common ground that the disease was very likely present but undetected at the time of sentencing. 

1. After unsuccessful treatment, including chemotherapy, by 14 May this year the disease had progressed to a point where the medical assessment was that it was incurable.  The applicant’s symptoms include severe epigastric and left chest wall pain, nausea, vomiting and regurgitation.  Stents have been inserted into her oesophagus and she is severely malnourished.  She is expected to die before her earliest eligible release date in September 2013. 

1. It is accepted by the Crown — properly, in my view — that the circumstances are relevant to the burden of imprisonment experienced by the applicant, including her isolation.

1. This new evidence is admissible (so the Crown accepts) as throwing new light on circumstances which existed at the time of sentence.[1]  The admission of that new evidence reopens the sentencing discretion — not because there was any error of the sentencing judge, but because it is in the interests of justice that there be a re‑sentencing in light of the new facts.

   [1]See R v Nguyen [2006] VSCA 184; R v W E F [1998] 2 VR 385.

1. In my opinion, these new facts can lead to only one conclusion, and that is that the remaining weeks of the applicant’s life should not be spent in custody.  We should re‑sentence her so that she will be immediately eligible for release on parole.  There is no suggestion that she has been receiving anything other than the appropriate care while in custody.  It is considerations of compassion which are the determining factors on this application.

1. I would make orders imposing the same head sentence but fixing a non‑parole period of 427 days which will have the effect of making the applicant eligible for immediate release on parole.

BUCHANAN JA:

1. I agree.

MAXWELL ACJ:

1. The orders of the Court are:

1.  The application for leave to appeal against sentence is granted. 

2. The appeal is treated as instituted and heard instanter and is allowed. 

3. The appellant is re‑sentenced as set out in the table below.

Charge on indictment	Offence	Maximum	Sentence	Cumulation
1.	Cultivate narcotic plant (commercial quantity) [s 72A Drugs, Poisons and Controlled Substances Act 1981 (Vic)]	25 y	2 y	Base
Summary offence	Deal property suspected of being proceeds of crime [s 195 Crimes Act 1958 (Vic)]	2 y or 240 penalty units	28 days	14 days
Total Effective Sentence:		2 y 14 days
Non-parole Period		427 days
Pre-sentence detention declared:		427 days
6AAA Statement:  If the appellant had been convicted after trial the total effective sentence would have been 2 y 10 m, with a non-parole period of 23 m.