Doan v The Queen

[2010] VSCA 250

SUPREME COURT OF VICTORIA

COURT OF APPEAL

TUAN DOAN	S APCR 2009 0811
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	NETTLE and HARPER JJA and T FORREST AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 September 2010
DATE OF JUDGMENT:	20 September 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 250
JUDGMENT APPEALED FROM:	R v Doan (Unreported, County Court of Victoria, Judge Punshon, 4 September 2009)

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CRIMINAL LAW – Cultivation of a commercial quantity of cannabis – Appeal against sentence – Young offender – General deterrence significant sentencing factor – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G Hughan	Robert Stary & Assoc
For the Respondent	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

1. I invite T Forrest AJA to deliver the first judgment.

T FORREST AJA:

1. In about mid-2008 the appellant assisted the cultivation of cannabis at rented houses in Kew and Hawthorn.  In both houses were sophisticated hydroponic systems involving watering systems, timers, lighting and arrangements for the bypass of electricity.  At the Kew premises there were 117 plants and loose cannabis weighing about 20 kilograms.  At the Hawthorn premises there were 145 plants.  It was common ground that the appellant’s role at the Hawthorn house was very peripheral[1] and he was dealt with on the basis that the vast majority of his culpability was to do with his participation in the Kew crop.

   [1]Extending no further than handling small items of equipment that he knew was destined for hydroponic cannabis cultivation at some unknown location.

1. The appellant was indicted with a co-offender Dat Trinh whose activities were confined to Hawthorn.  Both co-accused were no more than notionally paid assistants in the cultivation enterprises.  The appellant had incurred a debt of $4,000 to one ‘Jimmy’.  The appellant had taken out this loan to assist with his grandfather’s medical expenses.  ‘Jimmy’ offered him work assisting with the cultivation of the Kew crop as a means of repaying this debt.  The work involved topping up the hydroponic watering system every couple of days.  These duties extended over a period of about seven weeks.

1. The co-accused’s motivations for offending and his role in the Hawthorn crop were very similar.  He became indebted to one ‘Kenny’ for $5,000 and tended to the plants there as a means of repaying some part of the debt.  Neither the appellant nor Trinh had any involvement in the setting up of the cannabis houses nor were they to share in any profits realised.  Both were young, the appellant 20, Trinh 21 at the time of offending and both of good prior character.  Trinh had been remanded in custody since arrest.[2]  The appellant had been released on bail after serving 21 days of pre-sentence detention.  The appellant had built upon an impressive work history during his time on bail.

   [2]Trinh had overstayed his visa and did not apply for bail.

1. The appellant was sentenced as follows:

Count 1

Cultivating cannabis in a commercial quantity;  2 years’ imprisonment.

Count 2

Theft of electricity;  14 days’ imprisonment.

No order for cumulation was made.  Thus the effective head sentence was 2 years’ imprisonment.

A minimum term of 14 months was fixed before eligibility for parole.

1. Mr Trinh was indicted on similar counts relating to the Hawthorn premises and faced a further count of possession of a drug of dependence, being a small quantity of cannabis.  It was accepted this possession was for his personal use.  Mr Trinh was also sentenced to an effective head sentence of 2 years with a minimum of 14 months to be served before parole eligibility.  His Honour at para [44] of his sentencing reasons remarked that he found little to distinguish the appellant and Mr Trinh.  There was no justification for ‘differential sentencing in my view’.

1. The appellant has filed three grounds of appeal:

1.The sentence was manifestly excessive, in that it ought to have been wholly suspended.

2.The sentencing judge erred by failing to apply the principles in relation to youthful offenders:

•that rehabilitation is a primary consideration in sentencing youthful first offenders;

•that rehabilitation is usually far more important than general deterrence; and

•that a youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality

and instead holding that general deterrence was the primary sentencing object.

3.The sentencing judge erred by having regard to the period of time spent on remand by the co-offender Dat Trinh in setting the applicant’s non-parole period.

1. His Honour the learned sentencing judge has reported in these terms:

With respect to the Full Statement of Grounds filed on 21 December 2009 in the above matter there is little I wish to add to my Reasons for Sentence when read in conjunction with the transcript of the plea.

There was discussion, and some concessions made, during the plea concerning the appropriate sentencing range, the need to fix an appropriate non-parole period without being mechanistic, parity, the importance of fostering rehabilitation, particularly given Mr Doan’s age and rehabilitative prospects as well as the need for the sentence to serve general deterrence.  The case involved offending, very commonly dealt with in the County Court, often involving relatively vulnerable offenders who although exploited by others nevertheless play an important role in facilitating the criminal enterprise.  The motivation for the offending was financial gain, albeit relatively modest financial gain, as is commonly so in these cases.

The prosecution sentencing range submissions concerning the (head) sentence were not contested.  The period imposed (2 years) was at the bottom of this range.  Once this sentence was imposed my view was that a non-parole period less than 14 months imprisonment, particularly a wholly suspended sentence or time already served by Mr Doan, would not meet the competing sentencing considerations.

Yours faithfully.

1. Grounds 1 and 2 were argued together.  Ground 3 was argued separately.

1. In support of grounds 1 and 2 counsel for the appellant argued that the sentence imposed

(a)failed to reflect at all or sufficiently the appellant’s youth, prior good character and prospects of rehabilitation;

(b)failed to reflect the appellant’s limited role in the crops;

(c)failed to reflect the absence of any potential enrichment by the appellant; and

(d)against this background the effect of the sentence was that too much weight was accorded to the principle of general deterrence and too little to the abovementioned factors favourable to the appellant.

1. On the plea, the prosecution proposed a head sentence in the appellant’s case in the range of two to three years with a minimum sentence in the range of 18 months to two years.  Counsel for the appellant, on the plea, accepted (sensibly in my view) that a term of imprisonment was inevitable and did not argue against the range proffered by the prosecutor but submitted that given the circumstances of mitigation that undoubtedly existed it ought be wholly suspended.  Counsel for the appellant before this court (not counsel who appeared on the plea) accepted that to succeed on this ground the appellant would need to demonstrate that his Honour erred in not imposing a wholly suspended sentence.

1. I consider that the appellant has failed to make good this ground.  The offence of cultivating a commercial quantity of cannabis is a serious offence carrying a maximum of 25 yeas imprisonment.  Whilst there is no doubt that the role played by the appellant was of a menial nature, it was nonetheless necessary for the crop to flourish.  The maximum penalty fixed by parliament unambiguously demonstrates how seriously the community views this conduct (see DPP v Duong[3]).  Recently in this Court emphasis has been placed upon the importance attached to sentencing judges having regard to the maximum sentence fixed by Parliament (see Nguyen v The Queen,[4] DPP v CPD[5]).  This court has also emphasised recently that general deterrence is an important consideration in sentencing for this type of offence (The Queen v Mason[6]) and that the link between general deterrence and the increasing prevalence of this offence is readily apparent.[7]

   [3][2006] VSCA 78.

   [4][2010] VSCA 127.

   [5][2009] VSCA 114.

   [6][2006] VSCA 55.

   [7]Nguyen v The Queen [2010] VSCA 127, [21].

1. Whilst it is the fact that the appellant is a young offender with high prospects for rehabilitation, his Honour specifically referred to those factors when setting a minimum term that was 40% lower than the head sentence which itself was only 8% of the maximum penalty available.  Ultimately, in order for this ground to succeed, what must be demonstrated is that the sentence imposed is ‘wholly outside the range of sentencing options available to the sentencing judge’.[8]  In my view this simply has not been demonstrated.  His Honour was obliged to consider the aspect of general deterrence, as he was the appellant’s youth and good prospects.  He specifically acknowledged these competing sentencing factors and in my view gave effect to them in the sentence imposed.  Accordingly, I consider that this ground must fail.

   [8]R v Abbott (2007) 170 A Crim R 306.

Ground 3

1. In written submissions counsel for the appellant’s predecessor contended that both the appellant and his co-accused were sentenced to a minimum term (14 months) which roughly equated to the time the co-accused had spent in pre-sentence detention.  This, so the argument went, meant that his Honour imposed a minimum sentence on the co-offender that equated effectively to ‘time served’ and his Honour then ‘subconsciously’ and erroneously imported that minimum term into the sentence imposed upon the appellant.

1. I consider there is no merit to this argument.  The issue was specifically raised on the plea directly (see 29.18 ff) and indirectly (see T 30.25).  His Honour explicitly evinced an intention

(a)only to sentence Trinh to a penalty he considered appropriate regardless of the time spent on remand; and

(b)not to use the time Trinh had spent on remand as any basis for a sentence imposed on the appellant.

1. His Honour, in the case of both men, specifically articulated that the

minimum term was fixed after a consideration of the ‘need to foster rehabilitation’.  For my part, I consider that this is the best evidence of the learned sentencing Judge’s intentions, and there is little to be gained by embarking upon an exploration of the subconscious.

1. Accordingly, I consider that this ground must fail also and I would dismiss the appeal.

NETTLE JA:

1. I agree and I wish only to add a brief observation concerning the submission advanced on behalf of the appellant that the judge had erred in the emphasis which his Honour placed on the importance of general deterrence.  In my view lest there be any doubt about it, there should be no doubt that in cases involving cultivation of a narcotic plant in not less than a commercial quantity, general deterrence is at the forefront of sentencing considerations.  Consequently, as the judge rightly observed, in cases of this kind there is less room to give weight to considerations of such as youth and antecedents that would otherwise be the case.  In the result the judge also correctly found in a case of this kind an immediate term of imprisonment should ordinarily be regarded as virtually unavoidable.

HARPER JA:

1. I agree that this appeal should be dismissed.  I do so for the reasons given by the learned presiding judge and Forrest AJA.

NETTLE JA:

1. The order of the Court is that the appeal is dismissed.

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