DPP v Tran

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0193

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
LUONG TRONG TRAN	Respondent

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JUDGES:	NIALL, WALKER and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	2 February 2024
DATE OF JUDGMENT:	29 February 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 16
JUDGMENT APPEALED FROM:	DPP v Tran (County Court of Victoria, Judge Leighfield, 2 October 2023)

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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Cultivation of large commercial quantity of narcotic plant – Whether sentence manifestly inadequate – Where respondent’s conduct involved significant criminality – Where respondent pleaded guilty during Covid-19 pandemic – Whether Court should exercise residual discretion to dismiss appeal – Residual discretion not exercised – Appeal allowed.

Spiteri v The Queen (2011) 206 A Crim R 528, Dang v The Queen [2020] VSCA 24, Nguyen v The Queen (2021) 301 A Crim R 1, Lai v The King [2023] VSCA 151 applied; Worboyes v The Queen (2021) 96 MVR 344 applied; DPP v Browne [2023] VSCA 13 discussed.

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Counsel
Appellant:		Mr B Kissane KC with Mr L McAuliffe
Respondent:		Mr C Mandy SC with Ms B East
Solicitors
Appellant:	Mr C Michell, Solicitor for Public Prosecutions
Respondent:	Slades & Parsons Criminal Law

NIALL JA
BOYCE JA:

We have had the advantage of reading in draft the reasons for judgment of Walker JA. Having had the benefit of those reasons we can state our conclusions on the appeal briefly. We would allow the appeal and resentence the respondent. We would not exercise the residual discretion that this Court has in order to dismiss the appeal.
The relevant considerations that a sentencing court must take into account are primarily found in the Sentencing Act 1991 as explicated in decisions of this Court and the High Court. The principles that are to be applied in sentencing an offender for drug offences generally accord with those applicable to other offences. That said, the cases emphasise certain factors as being of particular importance in sentencing offenders for drug offences.
First, the structure of drug offences is tied to the quantity of drugs involved.[1]
[1]Nguyen v The Queen [2010] VSCA 127, [19] (Maxwell P, Buchanan JA agreeing at [42]); Dang v The Queen [2020] VSCA 24, [2], [15] (Niall and Weinberg JJA) (‘Dang’).
Second, Parliament’s assessment of the gravity of this type of offending is partially revealed by the relevant maximum term of imprisonment.[2] There is no room for the Court to make any relative assessment as to the harm caused by various drugs: Parliament has already attended to that task, as reflected in the different quantities of each drug that make up trafficable, commercial and large commercial quantities.
[2]Nguyen v The Queen [2010] VSCA 127, [20] (Maxwell P, Buchanan JA agreeing at [42]); Lai v The King [2023] VSCA 151, [23] (T Forrest and Osborn JJA) (‘Lai’).
Third, in part demand for drugs is fuelled by addiction. That is not always the case. For some people, even where addiction is not relevant drugs are still often highly sought after. Either way, demand is strong. On the other side of the equation, supply is limited by general prohibitions on the possession and sale of illicit drugs, resulting in a large illicit market with very high prices. For that reason, the supply of drugs is often motivated by financial rewards which can be enormous. Having regard to the societal harm that drug use can produce and the enormous profits that can be gained from illicit supply, general deterrence is a very important factor in sentencing.[3]
[3]Lai [2023] VSCA 151, [18] (T Forrest and Osborn JJA).
Fourth, it is a corollary of giving significant weight to general deterrence that factors personal to the offender, while remaining important, are often required to yield or be accorded less weight than in respect of other kinds of offences.[4]
[4]Tsang v The Queen (2011) 35 VR 240, 274 [162] (Nettle and Neave JJA and Sifris AJA); [2011] VSCA 336.
Fifth, as many of the cases demonstrate, in addition to the weight of the drugs involved, the role played by an accused may be significant in assessing the relative criminality and culpability that the offending entails.[5] There may be, to our minds at least, a tension between a focus on role and the achievement of the deterrence that the maximum penalties are intended to support. That is because it may serve to atomise the organisation in a way that dilutes the fact that the overall enterprise has been assessed by the legislature as grave criminal behaviour which, in respect of a large commercial quantity, attracts a maximum of life imprisonment, an available penalty reserved for very few offences.
[5]Nguyen v The Queen [2019] VSCA 134, [59] (Priest and Beach JJA); Dang [2020] VSCA 24, [15] (Niall and Weinberg JJA).
On the appeal, the respondent placed emphasis on the role he played, seeking to make the point that it was of a low order in the overall scheme of the cultivation.
The judge observed that the respondent pleaded guilty to a ‘Giretti-style’[6] charge. In the context of trafficking drugs, where it is usually applied, the import of the label is well understood.[7] It is less clear in the context of between-dates cultivation. Ultimately, the label does not add anything to the characterisation of the respondent’s conduct, save to emphasise that it is a between-dates charge.
[6]Giretti v The Queen (1986) 24 A Crim R 112.
[7]Dang v The Queen (2014) 43 VR 29, 43–5 [64]–[67] (Tate JA, Weinberg JA agreeing); [2014] VSCA 49.
The judge concluded:
As identified, it is common ground that you do not fall to be sentenced on the basis that you were responsible for the initial set-up, or funding of that set-up, in respect of any of the three factories. Additionally, you did not have an organisational role, nor were you going to profit from the realisation of the harvesting of the crops. However, you were, by reason of your plea of guilty, clearly aware of the extent of the cannabis cultivation being undertaken at the Campbellfield factory, and were further aware that the business of cultivating cannabis was also being undertaken at the Braeside and Kilsyth factories. The crop which was located at the Campbellfield factory was of a considerable size, being three times a large commercial quantity in weight, and you would have been aware that it was a crop which was being grown for profit. Additionally, you were involved in the payment of the rent for the Campbellfield factory, either directly or through your partner, on a number of occasions and had a role in transporting items to each of the factories.
I am of the view that you had an important role to play, and had some trust placed in you by those who were in control of this business in that you had access to each of the three factories, were involved in paying some of the rent and expenses for the Campbellfield factory, and had a level of knowledge of what was occurring inside – especially in respect of the Campbellfield factory. However, I accept that you were at the lower end of the hierarchy of roles and, whilst yours was a different role to that of your two co-offenders who I have already sentenced, I am of the view that your role was on a similar level to the role which they played.[8]
[8]Reasons, [27]–[28].
This was very large-scale cultivation. It met the threshold of a large commercial quantity by reference to Campbellfield alone. The fact that the drugs were divided over three properties added to the overall gravity of the cultivation. It required a duplication of the horticultural systems, and it meant that the enterprise may be able to continue even if one or two of the sites were detected by authorities.
It would be wrong to ignore the various roles, and decided cases make it plain that it remains an important factor. Here, the respondent pleaded guilty to a role in the cultivation of a large commercial quantity. He was aware of the scale. His involvement was not passive: he arranged the payment of rent, he delivered supplies and he attended the sites including for many hours on some occasions. The respondent’s conduct involved significant criminality. It was a position that involved some degree of trust on the part of the principals of the enterprise. It was not lower level or incidental. The respondent pleaded guilty to offending that spanned a relatively long period of time.
Current sentencing practice was also a matter that the judge was required to take into account.[9] The judge referred to Spiteri,[10] Dang and Nguyen.[11]
[9]Sentencing Act 1991, s 5(2)(b).
[10]Spiteri v The Queen [2011] VSCA 33 (‘Spiteri’).
[11]Nguyen v The Queen [2021] VSCA 211 (‘Nguyen’).
In Spiteri, Kyrou AJA said that ‘a median term of imprisonment in the vicinity of six years and six months for cultivating or trafficking a large commercial quantity of drugs does not adequately reflect the seriousness of these offences’.[12] In point of principle, Kyrou AJA said that the maximum available penalty revealed an intention that those who cultivate a large commercial quantity of drugs should receive a substantial term of imprisonment.
[12]Spiteri [2011] VSCA 33, [72].
In Dang, there was a discussion about the importance of ascertaining, to the extent possible, the nature of the role performed by an accused, and a reference to a number of other cases. In Dang it was said that recourse to decided cases showed a degree of consistency in the sentences for cultivation of cannabis, but did not set a precise figure referable to weight, number of plants or role of the offender.[13]
[13]Dang [2020] VSCA 24, [26] (Niall and Weinberg JJA).
In Nguyen, the applicant received a sentence of 5 years and 6 months for a charge of cultivating a commercial quantity of cannabis. This Court observed that sentences for this type of offending were consistently inadequate.[14]
[14]Nguyen [2021] VSCA 211, [44]–[46] (Maxwell P and Sifris JA).
What emerges from those cases, and many like them, is that, as a matter of principle, cultivation of a commercial and large commercial quantity of cannabis are serious offences that will result in substantial terms of imprisonment. Past sentences have not always reflected this. Without treating them as prescriptive, those cases provide some support for a conclusion that the sentence imposed in this case was manifestly inadequate. In saying that, we would accept that because general deterrence is so important and the weight of the drugs is a key factor in sentencing, there may be a greater uniformity in sentence for commercial drug offences than is the case for other crimes. That said, each case still turns on its own facts, and the sentence must reflect the individual circumstances of the offender. There remains the width of sound sentencing discretion.
Another factor that was relevant was the sentences imposed on two other accused. The sentences were relevant, but not powerfully so: they related to the offence of cultivation of a commercial quantity of cannabis, which has a lower maximum penalty, and the offending related only to a single property. They were single-date charges.
Looked at overall, we are persuaded that the sentence of 4 years and 4 months was manifestly inadequate. It failed to adequately address the criminality of the respondent and general deterrence.

Residual discretion

There are many factors that may induce this Court to exercise its residual discretion to dismiss a Crown appeal.[15] One of them arises where the manner in which the prosecution conducted the plea led the judge into error.[16] In our opinion that is not this case.
[15]DPP v Browne [2023] VSCA 13, [70] (Kyrou, T Forrest and Kennedy JJA) (‘Browne’).
[16]Ibid.
One difficulty for the Crown in this case was that the respondent applied for, and accepted (by pleading guilty at the first available opportunity), a sentence indicated by the sentencing judge at a sentence indication hearing.[17] The sentence indication hearing proceeded on the basis that at any future plea hearing the defence would likely tender further evidence in mitigation of penalty, such as a ‘psychological report’ that — as defence counsel put it — might enliven ‘limbs of Verdins’.[18] Sentencing judges may be assisted by the provision of comparable cases,[19] but difficulties may attend an assessment of comparability at a stage before all the relevant evidence is known, such as at a sentence indication hearing. And yet, once her Honour’s indication was formally accepted by the entry of the respondent’s plea, the judge was prohibited from imposing a more severe sentence than had been indicated.[20]
[17]Criminal Procedure Act 2009, ss 207–209 (‘CPA’).
[18]R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
[19]R v Kilic (2016) 259 CLR 256, 266–72 [21]–[36] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[20]CPA, s 209.
We accept that the prosecutor could have done more to assist the judge. In this Court the appellant relied on a table of cases, said to relate to comparable cases and placed emphasis on the decision of this Court in Lai. Neither was provided to the judge. Lai should have been referred to the judge. It predated the plea and was a recent decision of this Court dealing with relatively similar offending. It supports the appellant’s argument that the current sentence is manifestly inadequate and would have been a very useful authority for the judge.
We are not prepared, however, to go so far as to say that the failure of the prosecution to refer to Lai or to provide a table of sentences induced error. Cases are not precedents and they turn on their own facts. The greater degree of uniformity in drug sentences to which we have already referred perhaps made comparable sentences more important; but even the small number of cases to which the prosecution did refer, at the sentence indication hearing stage,[21] made it plain that sentences need to relate to the gravity of

the offending and that past decisions tended to be unduly lenient. In Nguyen, for example, Maxwell P and Sifris JA observed that the case highlighted the ‘scale of the problem with sentencing practices’ and that ‘the Director [of Public Prosecutions] should be astute to bring appeals if inadequate sentencing persists’.[22] Further, while the Court in Lai emphasised the need for sentencing for the offence of cultivation of a commercial quantity of cannabis to increase, it did so, at least in part, by reference to the Court’s observations in Nguyen.[23]
[21]Cases which included Spiteri and Nguyen.
[22]Nguyen [2021] VSCA 211, [46]–[48] (Maxwell P and Sifris JA).
[23]Lai [2023] VSCA 151, [19]–[20], [23] (T Forrest and Osborn JJA).

The respondent relied on the simple fact that he had been through the process of a sentence indication hearing as grounding a reason why the residual discretion ought be exercised in this case. In response to this submission, the Court gave the respondent the opportunity to consider whether he might, because of the sentence indication hearing, seek leave to withdraw his plea of guilty. No such application was ultimately forthcoming. Thus, as was held in Browne,[24] the sentence indication hearing conducted in this case does not justify exercise of the residual discretion. As the appellant submitted, the legislative scheme that regulates sentence indication hearings expressly leaves unaffected rights to appeal against sentence.[25]
[24][2023] VSCA 13, [79] (Kyrou, T Forrest and Kennedy JJA).
[25]CPA, s 209(6).
Another factor that may be relevant to the Court’s exercise of its residual discretion to dismiss a Crown appeal is the imminent release of the offender on parole.[26] Under the current sentence, the respondent is eligible for parole in the short term. However, that is primarily a function of the lenient sentence that was imposed. It does not provide a sufficient basis to dismiss the appeal.
[26]Browne [2023] VSCA 13, [69] (Kyrou, T Forrest and Kennedy JJA).

Resentence

We have already referred to the seriousness of the offending. The respondent could point to a number of mitigating factors, which are helpfully set out in the reasons of Walker JA at [46]. Taking those matters into account, we would resentence the respondent to a term of imprisonment of 6 years with a non-parole period of 4 years.

WALKER JA

In August 2023 the respondent pleaded guilty in the County Court to one count of cultivation of a large commercial quantity of a narcotic plant (cannabis).[27] The plea related to the respondent’s involvement in the cultivation of cannabis at three premises

at Campbellfield, Kilsyth and Braeside, at which large scale factory-based hydroponic facilities were used. The plea was conducted on the basis that the respondent knew that a large commercial quantity of cannabis was being cultivated at Campbellfield,[28] but that he was unaware of the volume being cultivated at the other two premises.[29] The respondent was not alleged to have been an organiser of the syndicate that operated the cultivation premises. Rather, he had participated in the cultivation by delivering supplies that were necessary to cultivate the cannabis hydroponically and by providing other support to the organisers of the syndicate (such as hiring trucks and making payments of rent for the Campbellfield premises). He also attended the three premises on various occasions.
[27]Contrary to s 72 of the Drugs, Poisons and Controlled Substances Act 1981. A large commercial quantity (‘LCQ’) of cannabis equates to 250 kg or 1,000 plants: sch 11. The charge was laid on a ‘Giretti basis’, as a continuing offence between 15 May 2020 and 10 March 2021: R v Giretti (1986) 24 A Crim R 112.
[28]The quantity was 1,219 cannabis plants, being 807 kg by weight, which was approximately 3.2 times LCQ by weight.
[29]The quantity at Kilsyth was 1,007 plants, being 402 kg by weight, which was approximately 1.6 times LCQ by weight; the quantity at Braeside was 811 plants, being 439.27 kg by weight, which was approximately 1.8 times LCQ by weight.

In April 2023, the judge had sentenced two co-offenders, Van Trai Tran and Quoc Dung Pham, after they had pleaded guilty to the offence of cultivation of a commercial quantity of cannabis at one of the syndicate’s premises. Each received a sentence of 2 years and 10 months’ imprisonment, with a non-parole period of 1 year and 9 months.[30]
[30]DPP v Pham (County Court of Victoria, Judge Leighfield, 28 April 2023).
The respondent’s plea of guilty was entered after a sentence indication had been given by the judge. The sentence indication was that if he pleaded guilty, a maximum sentence of 4 years and 6 months’ imprisonment would be imposed on him, but that it was possible that, if additional material was adduced at the plea hearing, then a lesser sentence than that might be imposed.
In October 2023, after a plea hearing, the respondent was sentenced to 4 years and 4 months’ imprisonment, with a non-parole period of 2 years and 8 months. The judge recorded that, had the respondent not pleaded guilty, she would have sentenced him to 7 years and 3 months’ imprisonment with a non-parole period of 5 years.
The appellant now seeks leave to appeal against that sentence, on the sole ground that it was manifestly inadequate.
Although I have concluded that the sentence imposed by the sentencing judge was manifestly inadequate, I would dismiss the appeal in the exercise of the residual discretion. My reasons are as follows.

Factual background

The factual background is set out in greater detail in the judge’s sentencing reasons[31] and need not be repeated here.
[31]DPP v Tran (County Court of Victoria, Judge Leighfield, 2 October 2023) (‘Reasons’).

The parties’ submissions

The appellant commenced by outlining the legal principles relevant to sentencing for cultivation of a narcotic plant. The appellant submitted that the quantity of the drugs in question and the role of the offender are both important indicia of the gravity of the offending. In relation to the role of the offender, ‘attention should be directed to the tasks performed by the offender in the enterprise, the nature of any relationship with principals or leaders, the degree of trust and responsibility reposed in the offender, the size, scope and sophistication of the enterprise, and any expectation of the offender in respect of the rewards to be derived from the enterprise’.
The appellant further pointed out that in 2021 in Nguyen v The Queen this Court had found that sentencing for the offence of cultivating a commercial quantity of cannabis had been inadequate.[32] That comment was applied to sentencing for the offence of cultivating a large commercial quantity of cannabis in Lai v The King.[33] In Lai the appellant had pleaded guilty to cultivating almost four times the threshold quantity for the charge of cultivating a large commercial quantity of cannabis.[34] He was sentenced to 8 years’ imprisonment with a non-parole period of 5 years and 6 months.[35] This Court dismissed his appeal against sentence. In so doing, the Court held that ‘general deterrence is an important consideration which, ordinarily, should be at the forefront of sentencing considerations’, citing numerous cases reflecting on the gravity of the nature of cultivation of commercial quantities of narcotic plants.[36]
[32](2021) 301 A Crim R 1, 9–10 [44]–[46] (Maxwell P and Sifris JA); [2021] VSCA 211 (‘Nguyen’).
[33][2023] VSCA 151, [19]–[20] (T Forrest and Osborn JJA) (‘Lai’).
[34]Lai [2023] VSCA 151, [21] (T Forrest and Osborn JJA).
[35]Lai [2023] VSCA 151, [1] (T Forrest and Osborn JJA).
[36]Lai [2023] VSCA 151, [18] (T Forrest and Osborn JJA).
Turning to the application of the principles to the present case, the appellant emphasised that the offending in question was serious in nature, involving cultivation of a large commercial quantity of cannabis. Such an offence causes significant harm to the community and required a clear deterrent message to those who might become involved in such operations. Thus, as the judge recognised, general deterrence, denunciation and just punishment must be given substantial weight in the sentence. The appellant contended, however, that this observation was not reflected in the sentence the judge imposed.
The appellant pointed out that the offending involved a sophisticated hydroponic set up at three factories, over a period of around 10 months, and the cultivation of cannabis in a methodical and organised manner. It involved 1,219 plants (over 1.2 times the large commercial quantity by number), weighing 807 kilograms (around 3.2 times the large commercial quantity by weight).
The appellant provided to the court an annexure setting out recent appellate and first instance matters involving the cultivation of large commercial quantities of a narcotic plant. The appellant submitted that, when the present case was considered by reference to those cases, the quantities involved at Campbellfield alone fell within the ‘higher ranks’ of those cases, and when the three properties were considered it fell within the ‘highest class’ of offending.
The appellant accepted that the plea reflected only that the respondent knew of the quantity of cannabis at the Campbellfield premises. However, it was submitted that the ‘secondary properties’ provided ‘important context to the overall scale, nature and sophistication of the operation and required weight to be attributed to these matters in the sentencing process’. The appellant also submitted that the objective seriousness of the offending, and the respondent’s moral culpability, was further elevated by his behaviour after the police discovered the cannabis crop at the Campbellfield premises. He made arrangements to change the truck rental agreement to conceal his involvement, changed his mobile number three times, used a different handset, and ceased using the bank account linked to the truck rental. The sentencing judge found that the respondent was also aware that an indeterminate quantity of cannabis was being cultivated at the Braeside factory between 26 October 2020 and 19 November 2020, and at the Kilsyth factory between 31 July 2020 and 9 March 2021.
The appellant quite properly accepted that there were factors in mitigation that were relevant to the sentence to be imposed, including:
(a)the risk of deportation and the effect of the Covid-19 pandemic on the respondent’s experience of imprisonment;
(b)the enhanced value of the respondent’s guilty plea by reason of the principle in Worboyes v The Queen;[37]
(c)the respondent’s mental health issues, which were accepted as enlivening the Verdins principles;[38]
(d)the respondent’s prior good character and his reasonably good prospects of rehabilitation.
[37](2021) 96 MVR 344; [2021] VSCA 169 (‘Worboyes’).
[38]R v Verdins (2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
The appellant also accepted that parity had a role to play in sentencing the respondent, because two of his co-offenders had already been sentenced after pleading guilty to cultivation of a commercial quantity of cannabis at one of the syndicate’s premises. At the plea hearing the prosecutor had characterised the roles of the co-offenders as ‘different’, but had not sought to characterise the respondent’s role as ‘greater’. The appellant observed that the judge had determined that there was a basis for substantial disparity between the respondent and the co-offenders, by reason of the lesser charge and the fact that the co-offenders were involved in only one premises. The appellant did not dispute that proposition, but relied on this to support the conclusion of inadequacy.
The appellant then returned to the cases outlined in the annexure. She submitted that these ‘provide useful insight into how the Court, and sentencing judges at first instance, weigh the culpability of these roles’. The appellant submitted that the respondent had attended the three properties over the 10 month period of the offending and he had rented a number of vans used to transport equipment and supplies that were used to tend to the crops at each premises. The appellant characterised this role as ‘vital in the sense that the respondent he provided the means to ensure that the crops were able to be cultivated and the equipment and supplies required to ensure security and an assurance that the equipment was in working-order’.
Ultimately, the appellant submitted that the sentence imposed ‘was wholly outside the range of sentences available to the sentencing judge in the reasonable exercise of the sentencing discretion’ and that it ‘was not reasonably open to the sentencing judge to impose the sentence passed if proper weight had been given to the objective seriousness of the offending, the respondent’s moral culpability and role in the offending, the applicable sentencing purposes, and the respondent’s mitigating factors’.
Finally, the appellant contended that if the appeal was successful, the Court ought not to exercise its residual discretion.
In response, the respondent contended that the sentence imposed by the judge was within the range reasonably open to her. In terms of an assessment of the seriousness of the offending, he accepted that the quantity involved was over three times the large commercial quantity by weight. However, he submitted that that is but one factor in the assessment of seriousness, and pointed to the judge’s finding that his role was at the ‘lower end of the hierarchy’, that he had attended at the Campbellfield premises on only four occasions in the five month period in issue, and that he had not known how much cannabis was being cultivated at the Braeside and Kilsyth premises. Furthermore, the prosecution could not prove that the respondent was going to profit from the realisation of harvesting the cannabis. He also pointed to the fact that he was not someone who had completed the initial set up, or funded the three factories, and was not involved in the act of cultivation. While the principals placed a degree of trust in him, he had lesser responsibility than his co-accused who had tended to the crop.
He also relied on the multiple matters put in mitigation that had properly been taken into account by the judge, including:
(a)his early plea of guilty, which was of enhanced utilitarian value because it reduced the complexity of the trials of other co-accused, and was further ‘elevated’ by reason of the Covid-19 pandemic and the principle in Worboyes, and also reflected some degree of remorse;
(b)his mental health issues that enlivened limbs five and six of the Verdins principles;
(c)the fact he had no prior convictions or issues with substance abuse, and had family support and a history of employment, all of which contributed to the judge’s finding that his prospects of rehabilitation were ‘reasonably good’;
(d)the fact that the respondent had been on remand for two years prior to trial, which, while not inordinate, was nonetheless relevant;
(e)the additional burden associated with imprisonment as a result of the Covid-19 pandemic;
(f)the fact that the respondent is likely to be deported upon his release from custody, to a country where he is likely to face persecution; and
(g)parity of sentencing between the respondent and the two co-accused who had been sentenced to a term of 2 years and 10 months for a charge of cultivation of a commercial quantity of cannabis, where their role was at the same level in the hierarchy as the respondent.

Consideration

The principles applicable to an appeal against sentence were not in dispute between the parties. In Director of Public Prosecutions v Karazisis, this Court said as follows:
In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances. As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.[39]
[39]DPP v Karazisis (2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA, Warren CJ and Maxwell P agreeing at 637 [1]) (citations omitted); [2010] VSCA 350 (‘Karazisis’).
It is well established that it is not sufficient that the appellate court might have imposed a different sentence.[40] Nor, as the respondent submitted, would a sentence be manifestly inadequate merely because an appellate court considers it lenient.[41]
[40]DPP v Spottiswood [2021] VSCA 146, [57] (Priest, Beach and T Forrest JJA).
[41]DPP v Howard (a pseudonym) [2021] VSCA 298, [4] (Maxwell P, T Forrest and Walker JJA).
On the other hand, it is appropriate to recognise that this Court has, on several occasions, held that sentencing for the offence of cultivating a commercial quantity of cannabis has been inadequate, and that sentencing practices must change. Further, as far back as 2011, in Spiteri v The Queen, Kyrou AJA observed that the median sentence for cultivation of a large commercial quantity of cannabis was 6 years and 6 months’ imprisonment, which ‘does not adequately reflect the seriousness of these offences’.[42] The more recent remarks of this Court in Lai further support the proposition that sentencing practices for cultivation of a large commercial quantity must increase, given that sentences for cultivation of a commercial quantity have been held to be historically inadequate. Furthermore, in Lai this Court relied upon the remarks in Nguyen to the effect that, despite repeated statements from this Court that sentences for the offence of cultivating a commercial quantity of cannabis needed to increase, sentencing practice has remained essentially unchanged. In Nguyen this Court also observed that ‘the Director should be astute to bring appeals if inadequate sentencing persists’.[43]
[42](2011) 206 A Crim R 528, 540 [72] (Nettle JA agreeing at 529 [1], Neave JA agreeing at 530 [5]); [2011] VSCA 33 (‘Spiteri’).
[43]Nguyen (2021) 301 A Crim R 1, 11 [48] (Maxwell P and Sifris JA); [2021] VSCA 211.
I note that Lai was not drawn to the sentencing judge’s attention, even though the appellant had conduct of that case and thus may be taken to have been aware of it, and the remarks made in it. And Nguyen was drawn to the sentencing judge’s attention only by providing a case citation in the written submissions, without a pinpoint, and without otherwise drawing any particular passages in the case to her Honour’s attention. I discuss this further below, in relation to the exercise of the residual discretion.
Notwithstanding the general remarks about sentencing for cultivation offences, it is also the case that each case must be considered on its own facts. While assistance can be gained from consideration of comparable cases, sentences are not precedents, and the outcome in one case cannot dictate the outcome in another.[44] As Niall JA observed in Le v The Queen, ‘even where there is a discernible pattern, current sentencing practice does not set the limits of the sentencing discretion’.[45]
[44]DPP v Dalgliesh (a pseudonym)(2017) 262 CLR 428, 450 [68] (Kiefel CJ, Bell and Keane JJ), 454 [83] (Gageler and Gordon JJ); [2017] HCA 41.
[45][2021] VSCA 220, [17].
The real question is thus whether the sentence imposed in the present case can be said to be manifestly inadequate, in light of the objective seriousness of the offending, the respondent’s role in the offending and the mitigating factors on which he relied.
In that regard, the Director relied upon three related propositions:
(a)first, that the offending was serious by reference to the quantity of cannabis involved; and
(b)second, that the respondent’s role in the enterprise was a significant one, not a low level one; and.
(c)third, that the offending was at the high end of seriousness when regard is had to comparable cases and current sentencing practices, including the proposition in Nguyen and Lai that sentences for this kind of offending had previously been inadequate.
In contrast, the respondent accepted that the offending was serious by reference to quantity, but disputed the significance of his role, which he described as ‘low level’, and contended that only limited assistance can be gained from comparable cases. He further pointed to the range of uncontested mitigating factors upon which he had relied below, and which justified the sentence imposed. He submitted that his case was significantly different from the comparable cases, both in relation to the role played and the factors in mitigation, which explained why the sentence imposed upon him was lower than most of the sentences in the comparable cases.
As this Court observed in Lai, drug cultivation is a serious offence, commercial quantity cultivation is ‘especially serious’,[46] and ‘large commercial quantity cultivation, carrying a maximum of life imprisonment, is more serious again’.[47] Furthermore, the authorities make clear that the quantity involved is a ‘very significant matter in sentencing for these sorts of offences’.[48]
[46]Lai [2023] VSCA 151, [23] (T Forrest and Osborn JJA) citing Nguyen (2021) 301 A Crim R 1, 7 [30] (Maxwell P and Sifris JA); [2021] VSCA 211.
[47]Lai [2023] VSCA 151, [23] (T Forrest and Osborn JJA).
[48]Lai [2023] VSCA 151, [23] (T Forrest and Osborn JJA); Nguyen v The Queen (2010) 208 A Crim A 464, 468 [19] (Maxwell P, Buchanan JA agreeing at 475 [42]); [2010] VSCA 127.
In my opinion, this offending, involving a little over three times the large commercial quantity by weight, falls in the highest class of offending when considered by reference to the quantity. The respondent accepted that that was so ‘mathematically and objectively’, but sought to mitigate that seriousness by reference to his limited role in the enterprise.
In that regard, the judge concluded that the respondent was ‘at the lower end of the hierarchy’ of roles. She also concluded that his role was ‘on a similar level to the role played’ by the two co-offenders who had already been sentenced.[49] That role was unclear from her Honour’s sentencing remarks, although she described them as ‘looking after the crop’.[50] In the course of the hearing we were provided with her Honour’s sentencing reasons in relation to the two co-offenders. Those reasons reveal that the co-offenders had engaged in similar activities to the respondent, such as hiring vehicles and delivering supplies.
[49]Reasons, [28].
[50]Reasons, [25(d)].
It is nonetheless necessary to consider more precisely what the respondent’s role was, rather than to rely on the more general characterisation of being ‘at the lower end’. In that regard, while the respondent was not a principal in the criminal enterprise, and was not involved in setting up or funding the enterprise, he was more than a ‘menial underling’.[51] He was responsible for hiring two trucks, which he used on several occasions to deliver supplies and equipment necessary for the cultivation of the cannabis to the three premises. He also paid the rent for the Campbellfield factory, which demonstrated a degree of trust placed in him by the principals of the enterprise. Furthermore, the enterprise itself involved large scale and organised criminal offending, utilising a sophisticated hydroponic set up at three different premises over many months. Ultimately, the judge concluded that the respondent ‘had an important role to play’ and that ‘some trust’ was placed in him by the principals.[52] That conclusion was correct, and was not disputed.
[51]Lai [2023] VSCA 151, [22] (T Forrest and Osborn JJA).
[52]Reasons, [28].
In my opinion, even accepting that the respondent’s role was relatively low in the hierarchy of the criminal enterprise, it was, as the judge held, an important one. In combination with the significant quantity of cannabis involved, just at the Campbellfield premises alone, these two matters require the conclusion that this was very serious offending.
Turning then to the comparable cases to which we were referred, all of which involved a plea of guilty, those cases (with one exception, to which I return below) reveal that the sentences imposed for this offending range from 5 years and 6 months’ imprisonment[53] to 8 years and 6 months’ imprisonment.[54] In cases where the quantity involved was close to the threshold for a large commercial quantity, the sentences were at the lower end of that range;[55] and in cases where the quantity involved was four, five or more times the threshold for a large commercial quantity, the sentences were at the higher end of that range,[56] reflecting the importance of quantity in the sentencing calculus. Furthermore, many of those cases involved significant mitigating factors.
(a)In Lee, which involved 1.61 times a large commercial quantity by weight, the offender had a relatively low level role (he was paid $2000 per week to tend and harvest the plants) and he had significant mitigatory factors, including a difficult childhood as a refugee, remorse, admissions to police attracting a Doran ‘discount’,[57] very good prospects of rehabilitation and an early plea of guilty.[58] He was sentenced to 6 years’ imprisonment.
(b)In Vu, which involved 1.8 times a large commercial quantity by weight, the offender was ‘more than a crop-sitter’[59] but not a principal. He had purchased chemicals and fertiliser to aid in cultivation, and paid the rent on the factory.[60] He had issues with alcohol and drug use, faced isolation in custody, and was likely to be deported upon release.[61] He had entered an early plea of guilty (albeit before the Covid-19 pandemic).[62] He was sentenced to 6 years’ imprisonment.
(c)In Nisi, which involved 1.16 times a large commercial quantity by weight, the offender was a solo cultivator of cannabis at a residential property, motivated by financial gain.[63] He had significant mitigatory factors, including the making of admissions to police, no prior convictions, mental health issues that enlivened Verdins limbs five and six, previous good character and work history, and ‘very good’ prospects of rehabilitation.[64] He had pleaded guilty during the pandemic.[65]
[53]DPP v Nisi [2020] VCC 1337 (‘Nisi’).
[54]DPP v Nguyen [2013] VSC 477.
[55]Spiteri (2011) 206 A Crim R 528; [2011] VSCA 33: 1.08 times LCQ by weight, sentence of 6 years and 9 months; Nisi [2020] VCC 1337: 1.16 times LCQ by weight, sentence of 5 years and 6 months; DPP v Lee [2020] VCC 1055 (‘Lee’): 1.61 times LCQ by weight, sentence of 6 years; DPP v Vu [2018] VCC 260 (‘Vu’): 1.8 times LCQ by weight, sentence of 6 years.
[56]Lai [2023] VSCA 151: 3.84 times LCQ by weight, sentence of 8 years; DPP v S (No 2) [2009] VSCA 127: 6.05 times LCQ by weight, sentence of 8 years; DPP v Nguyen [2013] VSC 477: 5.12 times LCQ by weight, sentence of 8 years and 6 months.
[57]R v Doran [2005] VSCA 271.
[58]Lee [2020] VCC 1055, [27]–[36] (Judge Cahill). Lee was decided prior to this Court’s decision in Worboyes.
[59]Vu [2018] VCC 260, [18] (Judge Smallwood).
[60]Vu [2018] VCC 260, [20] (Judge Smallwood).
[61]Vu [2018] VCC 260, [5], [21]–[22] (Judge Smallwood).
[62]Vu [2018] VCC 260, [2] (Judge Smallwood).
[63]Nisi [2020] VCC 1337, [20] (Judge Gucciardo).
[64]Nisi [2020] VCC 1337, [25], [36]–[49], [51] (Judge Gucciardo).
[65]Nisi [2020] VCC 1337, [33] (Judge Gucciardo). Nisi was decided before this Court’s decision in Worboyes.

The exception to which I referred above was Director of Public Prosecutions v Tangey, which involved cultivation of 1.16 times a large commercial quantity of cannabis by weight, where a sentence of 3 years’ imprisonment was imposed.[66] That case concerned cultivation at a single residential premises. The offender had significant mitigatory factors, including that he had made admissions to police, he had been the victim of childhood sexual assault, he used drugs, he had good family support and character references and had ‘excellent’ prospects of rehabilitation.[67] He entered a plea of guilty, prior to the pandemic.[68] In my opinion, the sentence imposed in Tangey was remarkably lenient, even taking into account the mitigatory factors. It was imposed before this Court’s comments in Lai, and cannot be relied upon as indicative of the bottom of the available range of sentences so as to require the conclusion that the sentence imposed in this case was within the range reasonably open to the judge.
[66]DPP v Tangey [2019] VCC 2131 (‘Tangey’).
[67]Tangey [2019] VCC 2131, [34]–[49] (Judge Stuart).
[68]Tangey [2019] VCC 2131, [47] (Judge Stuart).
The real question, it seems to me, is whether, notwithstanding the seriousness of the offending, and the need for general deterrence to play a significant role in sentencing, the mitigating factors upon which the respondent relied justified a sentence that falls considerably below the bottom of the range of sentences imposed in the comparable cases for cultivation of a large commercial quantity of cannabis, bearing in mind the objective seriousness of the offending. In my view, the answer to that question is that they do not.
In the present case, the quantity of cannabis involved — 3.2 times a large commercial quantity by weight — was significant. It was considerably greater than the cases at the lower end of the identified range. Furthermore, the respondent’s role was an important one, albeit he was not a principal. Those two matters — quantity and role — would ordinarily have warranted a sentence towards the upper end of the range. However, the constellation of mitigating factors, coupled with some limited operation of the principle of parity,[69] require that the respondent not be sentenced at the upper end of the range; they permitted a sentence at the lower end of the range. Nonetheless, the role for general deterrence is such that a sentence of 4 years and 4 months’ imprisonment was well below the lower end of the range, and was not open. That sentence was, in my opinion, manifestly inadequate for offending of this degree of seriousness.
[69]The role of parity is limited because the co-offenders pleaded guilty to a lesser offence, cultivation of a commercial quantity, attracting a lesser maximum penalty, and the charges against them involved a single premises (Kilsyth) on a single day.

The residual discretion

Although I have concluded that the judge erred, I would exercise the Court’s residual discretion not to disturb the sentence imposed by the sentencing judge.
The principles governing the exercise of the residual discretion are reasonably well-established, and were summarised by this Court in Director of Public Prosecutions v Browne.[70] In that case, like the present, the respondent had pleaded guilty following a sentence indication, and the Director had appealed. The Court there observed that the residual discretion to refuse to intervene, even if sentencing error has been demonstrated, is exercisable at the second stage of its inquiry on a Crown appeal — that is, in determining whether a different sentence should be imposed.[71] In addition, if the Court allows a Crown appeal, the Court also has a residual discretion when it comes to fix a different sentence.[72] The residual discretion to dismiss a Crown appeal has survived the abolition of double jeopardy as a sentencing consideration, but the discretion can only be exercised on the basis of considerations other than double jeopardy.[73] The burden lies upon the Crown ‘to negate the existence of any reason why the Court of Criminal Appeal should decline to interfere notwithstanding that their Honours were satisfied that the sentence was erroneously lenient’.[74]
[70][2023] VSCA 13 (‘Browne’).
[71]Browne [2023] VSCA 13, [66] (Kyrou, T Forrest and Kennedy JJA). See Criminal Procedure Act 2009, s 289(1)(b).
[72]Browne [2023] VSCA 13, [66] (Kyrou, T Forrest and Kennedy JJA), referring to Karazisis (2010) 31 VR 634, 652 [73] (Ashley, Redlich and Weinberg JJA); [2010] VSCA 350.
[73]Browne [2023] VSCA 13, [66] (Kyrou, T Forrest and Kennedy JJA), referring to Karazisis (2010) 31 VR 634, 648–9 [52]–[53], 657–8 [100], 658 [103], 661 [119] (Ashley, Redlich and Weinberg JJA); [2010] VSCA 350.
[74]Cumberland v The Queen (2020) 379 ALR 503, 511 [33] (Bell, Gageler and Nettle JJ); [2020] HCA 21.
The authorities reveal that the factors that may be relevant to the exercise of the discretion include, relevantly, the following:[75]
(a)the creation of unjustifiable disparity between a proposed new sentence to be imposed on the offender and the unchallenged sentence previously imposed on a co-offender;
(b)the imminent release of the offender on parole;
(c)fault on the part of the Crown, including the adoption of a position by the prosecutor at the plea that may have led the sentencing judge into error.
These factors may combine to produce injustice if a Crown appeal is allowed.[76]
[75]See Green v The Queen (2011) 244 CLR 462, 466 [2], 477 [37], 479 [43], 480 [44] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49 (‘Green’); Browne [2023] VSCA 13, 14–15 [69]–[73] (Kyrou, T Forrest and Kennedy JJA); Karazisis (2010) 31 VR 634, 658 [104] (Ashley, Redlich and Weinberg JJA); [2010] VSCA 350.
[76]Green (2011) 244 CLR 462, 466 [2] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49.
In the present case, the Director sought to negative the first of these by pointing to the significant differences between the offending and moral culpability of the co-offenders and the respondent. In particular, she pointed to the fact that the co-offenders pleaded guilty to a lesser offence and that the charges against them involved a single premises (Kilsyth) on a single day. I accept that submission. The residual discretion is not required to be exercised simply by reason of disparity — it is only unjustifiable disparity that is relevant. The differences between the respondent and his sentenced co-offenders mean, in my view, that the disparity generated by an appropriate sentence imposed on the respondent would not be unjustifiable.
As for the second matter, the respondent informed the Court that he is presently eligible for parole, and the appellant did not dispute that proposition. The respondent submitted that this is an important factor when considering the residual discretion. The appellant did not dispute that proposition. Indeed, the appellant did not make any submissions as to the significance of the respondent’s eligibility for parole for the exercise of the residual discretion. Thus there was no dispute that is an important factor that supports the exercise of the residual discretion.
In relation to the third matter, the respondent pointed out that the comparable cases upon which the appellant relied on the appeal, in particular Lai, which reiterated the need for an increase in sentences for offending of this kind, were not drawn to the sentencing judge’s attention. The appellant accepted that this was so, but submitted that several key comparable cases had been drawn to the sentencing judge’s attention. These included authorities from this Court — Spiteri in 2011, and Nguyen in 2021 — in which the Court had held that sentences for offending of this kind had been inadequate. The appellant submitted that the prosecutor’s failure to provide all the comparable authorities now relied upon, including Lai, was thus not sufficiently significant to warrant the exercise of the residual discretion.
I accept that some of the comparable cases relied upon in this Court had been drawn to the judge’s attention. Some — including Spiteri — were quoted in the Summary of Prosecution Submissions on the Plea. Others — including Nguyen in 2021 — were simply listed in the written submissions, with no pinpoint references given. Furthermore, in oral argument on the sentence indication it appears that the cases referred to in the written submissions were relied upon not as comparable cases, but as indications of the principles to be applied concerning the matters relevant to sentencing for the offence in question. None was specifically mentioned in the appellant’s address to the sentencing judge at the sentence indication hearing or the plea hearing. In oral argument before this Court, the appellant accepted that Lai ‘fell through the cracks’.
The appellant also submitted that there is a need to ensure that the sentence imposed in this case does not, by operation of the parity principle, generate inadequate sentences for the co-accused who are yet to be convicted. That may be accepted. But the question of parity will be a matter to be put to, and addressed by, the sentencing judge in any future sentencing exercise in relation to such persons (who may or may not be convicted of the offending).
The failure of the Crown to draw the comparable cases, and the recent statements concerning the inadequacy of sentencing for this kind of offending, to the judge’s attention would not have been sufficient, alone, to persuade me to exercise the residual discretion in the respondent’s favour. However, it is of some concern that the manner in which the case proceeded on the appeal was significantly different from the manner in which it proceeded before the sentencing judge. When that matter is added to the fact that the respondent is already eligible for parole, those two matters are, in combination, such as to cause me to exercise the residual discretion in favour of the respondent.[77]
[77]In the course of argument there was some discussion of the relevance to the residual discretion of the fact that the respondent had pleaded guilty after a sentence indication had been given, and the remarks of this Court in Browne [2023] VSCA 13, [76]–[81]. Given the view I have reached in relation to the residual discretion, it is not necessary for me to express a view on that issue.

Conclusion

For these reasons, I would dismiss the appeal.

[2024] VSCA 16

29 February 2024