Lai v The King
[2023] VSCA 151
•22 June 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0089 |
| HOANG LAI | Appellant |
| v | |
| THE KING | Respondent |
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| JUDGES: | T FORREST and OSBORN JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 June 2023 |
| DATE OF JUDGMENT: | 22 June 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 151 |
| JUDGMENT APPEALED FROM: | [2022] VCC 485 (Judge McInerney) |
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CRIMINAL LAW – Appeal – Sentence – Cultivating narcotic plant in not less than a large commercial quantity – Whether total effective sentence and non-parole period manifestly excessive – Appeal dismissed.
R v Mason [2006] VSCA 55, Doan v The Queen [2010] VSCA 250, Clarkson v The Queen (2011) 32 VR 361, Nguyen v The Queen [2016] VSCA 198, Mohtadi v The Queen [2018] VSCA 238, Nguyen v The Queen [2021] VSCA 211 and Osman v The Queen [2021] VSCA 176 referred to.
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| Counsel | |||
| Appellant: | Mr CK Wareham | ||
| Respondent: | Ms E Ruddle KC | ||
Solicitors | |||
| Appellant: | Paul Vale Criminal Law | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
T FORREST JA
OSBORN JA:
On 7 April 2022, following a plea to one charge of cultivating a narcotic plant in not less than a large commercial quantity, the appellant was sentenced to 8 years’ imprisonment.[1] A non-parole period of 5 years and 6 months was fixed. The maximum penalty for this offence is life imprisonment.
[1]DPP v Lai [2022] VCC 485 (Judge McInerney) (‘Reasons’).
On the same day, a co-offender Phong Hoang Pham, was sentenced to 4 years and 6 months’ imprisonment with a non-parole period of 3 years. He had pleaded guilty to one charge of cultivating a narcotic plant in not less than a commercial quantity. This is, obviously, a lesser charge than the appellant’s large commercial quantity charge, and no contention of sentencing disparity is advanced.
The appellant’s sole ground of appeal is expressed as follows:
Ground 1: In all the circumstances, and when regard is had to:
a) The applicant’s plea of guilty,
b) the perceptible discount to be afforded to pleas of guilty during the COVID-19 pandemic,
c) the applicant’s previous good character and the absence of a criminal history,
d) the applicant’s prospects of deportation,
e) the additional burden of custody that results
is productive of a total effective sentence and non-parole period that is manifestly excessive.
The appellant was granted leave to appeal on this ground by a judge of this Court on 9 November 2022.
Circumstances of the offending
We shall set out these circumstances as accurately recorded in the leave reasons:[2]
The applicant, now aged 39 years,[3] cultivated cannabis at two addresses, one in Truganina and another in Derrimut.
On 9 August 2021, police located 640 cannabis plants, weighing 506.88 kilograms, at the Truganina address. The next day, 10 August 2021, police located a further 712 cannabis plants…weighing 653.58 kilograms, at the Derrimut premises. Hence, the total quantity of cannabis found in aggregate was 1,352 cannabis plants, weighing 960.46 kilograms.[4]
Police located the cannabis as part of ‘Operation Crawl 2020’, an investigation into cannabis cultivation in Melbourne commenced in November 2020.
During the investigation, police identified the applicant and Pham as being involved in cultivating cannabis. Police covertly attached GPS trackers to vehicles they rented. Those trackers led police to identify the properties at Truganina and Derrimut as being used for the cultivation of cannabis. The premises were leased by Aus Export Food Pty Ltd, the leases being signed by the company’s director Lieu Thi Dao.
Between 8 January and 1 July 2021, the applicant rented an Isuzu truck from Avis Truck and Car Rentals. In that period, the truck attended at the Truganina address on approximately 53 occasions, and attended the Derrimut address on a further 10 occasions. Further, between 1 July and 11 August 2021, the applicant hired another Isuzu truck from Avis Truck and Car Rentals. Between these dates, the truck was seen attending the Truganina address on approximately 25 occasions, and attending the Derrimut address on a further four occasions.
On 9 August 2021, police observed Pham leave his residence in [a Melbourne suburb] and arrive at the Truganina address at approximately 11.56 am. The applicant, driving one of the hire trucks, also arrived at the address. Police executed a warrant at 12.50 pm, and found a hydroponic set-up. Neither the applicant nor Pham were found inside the premises. Both men were, however, apprehended in the vicinity a short time later, having been seen jumping from the rooves of nearby buildings.
[2]Lai v The King (Victorian Court of Appeal, Priest JA, 9 November 2022) [5]–[10] (citations in original).
[3]His date of birth is 29 March 1983.
[4]A large commercial quantity is 250 kilograms or 1,000 plants: see Drugs, Poisons and Controlled Substances Act 1981, Schedule 11, Part 2, column 1A.
The plea hearing
The appellant was represented at the plea hearing. Written submissions were tendered on his behalf. In substance, the following matters were placed before the judge:
•The appellant was born on 29 March 1983 and was aged 38 at the time of the offending.
•The appellant was born and raised in Saigon, Vietnam in a family of limited education, limited employment and very limited means.
•The appellant’s parents remain in Vietnam. They do not work, and his father is of poor health.
•The appellant is the middle child. He has an older sister, aged 44, and a younger brother aged 35, both of whom remain in Vietnam.
•Prior to his arrest, the accused was living in a Melbourne suburb with his de facto partner. She is a permanent resident in Australia.
•The appellant and his partner have been in a relationship for approximately one year.
•There is one child from the relationship, who is almost six months of age. She was born whilst the appellant has been in custody.
•The appellant has another daughter, who is aged 9 years old, and who resides in Australia.
•The appellant’s daughter was born in Vietnam, but she and her mother followed the appellant to Australia. They now live in a Melbourne suburb with her mother and they are both now permanent residents in Australia.
•The appellant was educated to the equivalent of year 12 in Vietnam and then attended the Vietnam equivalent of a TAFE program where he obtained a qualification as an electrician.
•He never obtained employment as an electrician, and has instead been employed in unskilled factory hand roles.
•The appellant arrived in Australia in 2017, and worked for several years as a factory hand for a caravan building company. At the time of the offending, he had lost his employment due to the COVID-19 pandemic.
•The appellant’s visa status was such that he had initially travelled to Australia on a tourist visa, at the time of the plea hearing was on a bridging visa, and he expects to be deported following his sentence.
•The court was urged to accept that the appellant planned to make a life in Australia, as evidenced by his relationship with his partner, and his two children who all reside in this country. It was highlighted that, as permanent residents, his children were likely to continue to reside here and the appellant would be deprived of the opportunity to be a part of their lives upon deportation. As such it was submitted that the burden of imprisonment would be greater than upon a person without such an expectation of deportation.[5]
•The appellant’s plea of guilty was entered at the earliest opportunity, and he made extensive admissions in his record of interview.
•The appellant pleaded guilty to trafficking an amount that was well in excess of a large commercial quantity. Notwithstanding the quantity involved, the objective gravity of the offending falls to be determined by reference to all the facts of the case including the role the appellant played in the enterprise. In this case there was ‘no evidence to suggest that the accused played a role in renting the factories, setting up, nor financing the cannabis crops.’ Further, the offending alleged was confined in the indictment to a single date and it was submitted the appellant was to be sentenced for his conduct on the date of the charge only.
•The appellant had remained in custody during the pandemic since his arrest and was thus entitled to a Worboyes[6] discount.
•The appellant was trying to use his time in custody in ‘the most meaningful way possible’, was of otherwise good character and had no prior criminal history.
[5]The appellant cited Guden v The Queen (2010) 28 VR 288; [2010] VSCA 196 in support of this submission.
[6]See Worboyes v The Queen (2021) 69 MVR 344; [2021] VSCA 169 (‘Worboyes’).
Prosecution submissions on the plea
The prosecutor submitted:
(a)The cultivation charge is a single date charge, 9 August 2021, involving 1352 cannabis plants weighing 960.46 kilograms. Thus it is a serious example of the offence.
(b)The cannabis was the product of a sophisticated hydroponic system, also involving an electrical bypass.
(c)Vehicles the appellant was responsible for attended the cannabis crop houses on numerous occasions.
(d)The appellant was responsible for the hire of two trucks between the period of 8 January and 11 August 2021 at a cost of over $17,000. Both vehicles attended the crop houses.
(e)It can be inferred that the appellant’s expected reward from the crop was ‘not insignificant’.
(f)The prosecutor conceded that the appellant:
•Had no prior convictions.
•Would inevitably be deported which, given his circumstances would weigh heavily upon him.
•Pleaded guilty at an early stage.
•Was entitled to ‘Worboyes considerations’[7] and the wider effects of COVID-19 upon his conditions in custody.
•‘[W]hilst neither of the two accused were the potential sole or major financial beneficiaries of the successful cultivation and harvest of the crops, they were both expecting to receive a modest reward for their individual actions.’
•General deterrence should be regarded as the principal sentencing consideration.[8]
•‘Factors relevant to assessing the seriousness of a particular cultivation offence include the offender’s role, and the scale, sophistication and duration of the cultivation activity. Because the offences are quantity-based, the quantity cultivated will ordinarily be a factor of critical importance.’[9]
•In respect of the offence of commercial quantity cultivation, in Nguyen v The Queen[10] the Court of Appeal has stated that sentences, particularly for offending of mid-range seriousness, need to increase.
•The appellant pleaded guilty to almost four times the applicable quantity of the more serious charge of cultivating a large commercial quantity.
[7](2021) 69 MVR 344; [2021] VSCA 169.
[8]Citing Mohtadi v The Queen [2018] VSCA 238, [48] (Kyrou and Kaye JJA) (‘Mohtadi’).
[9]Citing Nguyen v The Queen [2021] VSCA 211, [30] (Maxwell P and Sifris JA) (‘Nguyen’).
[10]Citing Nguyen v The Queen [2016] VSCA 198 and noting that this was again emphasised by the Court of Appeal in Nguyen [2021] VSCA 211.
The judge’s sentence
The sentencing judge sentenced the two co-offenders together. He set out the facts unexceptionally. Insofar as the appellant’s direct activities were concerned, the judge stated:
As I have said, both counsel concede the facts set out in Exhibit A as the facts upon which I am to sentence. The background to the warrant being issued was the pre-apprehension investigation. Tracking devices were placed by investigators on both vehicles rented by each of the accused. Both properties had been leased somewhere around September/October 2020 by a party called Dao. The Court was not advised who Dao is or what connection he had or was alleged to have with either of the accused. However, the properties were leased for three years respectively at a rent of $6,875 per month and $7,666 per month and the rent was paid to 29/07/2021 in advance, as I understand the position, in the sum of $92,000 and $73,960 respectively.
During such period of the rental, Mr Lai hired from Oz Travel an Isuzu truck from 08/01/2021 to June 2021 at a sum of $366.45 per week. In the same period, he hired another white Isuzu for the period 08/01/2021 to 11/08/2021 also at $366.45 a week. Then on 23 March, Mr Pham hired a white Isuzu van, also for the sum of $366.45 per week for the period 23/03/2021 to 21/05/2021. In regard to the hired vehicles, tracking devices were placed on the vehicles hired by Mr Lai, showed that such had travelled to the Truganina address on 78 occasions during such period and to the Derrimut address 14 times. In the same period, the vehicles rented by Mr Pham had also travelled at both addresses, but the Court was not given the details thereof. On 04/08/2021, Mr Pham rented a further van for three weeks at the sum of $546.00 per week.[11]
[11]Reasons, [6]–[7].
After offering his congratulations to all police concerned, the judge stated that it was vital for courts to be fully appraised of all relevant facts so that an offender’s full role could be revealed.
…such information is vital for a Court to fully understand an accused’s involvement in a crime with which he/ or she is charged. Such goes to enlightening the Court, if possible, as to the role which an accused has played in such very serious crime. Hence, albeit I agree totally with [the appellant’s counsel] that his client is to be sentenced for the crime detailed in the indictment, in order to fully understand his client’s role in regard to such crime, such information is vital. For the obvious reason, if such information is not available, then it is foreseeable that each person who commits these crimes may be sentenced as a principal, and this is the reason why this Court seeks such information.
Hence, we know that before being apprehended near the Truganina property on 9 August, Mr Lai had attended both properties on numerous occasions from 08/02/2021 to 09/08/2021. As I said the Truganina property on 78 occasions, the Derrimut property on 14 occasions. Mr Lai had also paid the weekly rent for such vehicles during such period at a rate of $366.45 per week, totalling $17,096.56. As to Mr Pham, he also paid the rent for the two cars that I have detailed for the period 03/03/2021 to May 21. The total figure paid for that truck is a figure of $4,555.65 for the period August 2021, 14 days an additional period of $1,700.08 16 (sic) cents.
As to Mr Lai, for example, the provision of such information to the Court puts paid to his answers in his record of interview, in particular, answers 46 and 96, of having met a blonde man at a market who paid him $300 to rent a car.
I find beyond reasonable doubt as to Mr Hoang Lai that he was:
1.involved in preparations relating to such criminal activity for some time;
2.that he attended the properties on 92 occasions from 08/01/2021 to 09/08/2021;
3.at both properties there were located very sophisticated growing operations;
4.that his role assisted the cultivation, being that part of his role at least that we know as to the cultivation was to lease the vehicles to service the enterprise from 08/01/2021 to June of 2021; and
5.that all of such activities illuminate the role he played in the commission of this crime, that is, Charge 1.[12]
[12]Ibid [11]–[14].
No issue was taken with these findings on this appeal.
The judge accepted, by analogy, that this Court’s statement about increasing sentences for commercial quantity trafficking should have flow on consequences for large commercial quantity trafficking.[13]
[13]Ibid [21]. His Honour referred to Rahmani v The Queen [2021] VSCA 51, [29], [30].
The judge stated that:
Hence while I am satisfied beyond reasonable doubt that each of the accused roles is not that of a mere crop sitter, I accept, as put by counsel, that neither accused were major beneficiaries of the scheme, and were to receive a financial reward for their involvement, the amount of which remains unknown. However, this must have been agreed I imagine as part of the plea bargain, such was described by the prosecution as modest. Now, I am not too certain why that was so agreed, but that was what was stated by the prosecutor, and I accept that I am bound by that. I accept [counsel for the appellant’s] submission and, indeed, to that degree, [counsel for the co-offender’s] that there is no evidence in regard to either accused that they played a role in the renting of the premises, in the financing or setting up of the crops.
However, as to setting up the enterprise, I would dispute the submission that they had no role, because clearly each played a role in regard to the car rentals. However, but for the site attendances which have been able to be advised to the Court by way of the surveillance, there is no other evidence of the precise role that they played in these crimes apart from their obvious roles in assisting the general cultivation…[14]
[14]Ibid [28]–[29].
The judge then summarised the appellant’s background and stated:
•That the appellant, rendered unemployed by the effects of the COVID-19 pandemic, was vulnerable to be recruited by the principals.[15]
•His custodial burden will be made ‘particularly difficult’ by the anxiety created by his certain future deportation while his partner and children will remain in Australia.[16]
•That he accepted Worboyes[17] considerations were engaged.[18]
•COVID-19 restrictions during the 242 days of pre-sentence detention and into the future add to the custodial burden.[19]
•That he took into account that the appellant had no prior convictions.[20]
•The appellant’s plea is an indication of remorse.[21]
•Whilst the judge referred only fleetingly to the prospects for rehabilitation, no issue is taken with this on his appeal.[22]
The judge then proceeded to sentence the appellant.
[15]Ibid [32].
[16]Ibid [33].
[17](2021) 69 MVR 344; [2021] VSCA 169.
[18]Reasons, [34].
[19]Ibid [35].
[20]Ibid.
[21]Ibid [40].
[22]Ibid.
The present appeal
In substance, the appellant rehearsed the submissions made below. He did not point to any specific error, but contended that the combination of the following mitigatory factors compelled an inference that there was underlying error in the sentencing process resulting in manifest excess.
•His early plea of guilty.
•The engagement of Worboyes[23] principles requiring a ‘perceptible discount’ arising from pleas of guilty made during the COVID-19 pandemic.
•His lack of prior criminal history.
•The additional custodial burden arising from the near inevitable deportation of the appellant, and the destructive familial consequences that would arise from this.
[23](2021) 69 MVR 344; [2021] VSCA 169.
The respondent also rehearsed her submissions below. It was contended that each of the mitigatory factors relied upon were conscientiously considered by the judge, and no identifiable error is alleged. The quantity of cannabis was substantially in excess of the large commercial quantity threshold and the appellant was no mere crop sitter. There has been considerable judicial comment about the need for higher sentences in commercial quantity cases and those observations a fortiori have application to large commercial quantity cases. The head sentence of 8 years must be considered in the light of the maximum penalty of life imprisonment. Neither it nor the minimum parole term of 5 years and 6 months are manifestly excessive.
Consideration
This Court regularly observes that grounds that allege manifest excess or inadequacy require stringent proofs.[24] It is insufficient for an appellate court to allow such a ground on the basis that it would have imposed a different sentence.[25] The sentence being considered must be considered to be wholly outside the range of sentences available to the sentencing judge in the reasonable exercise of the sentencing discretion.[26] In the absence of specific error, the sentence being considered must on its face bespeak underlying error. This is no easy task.[27]
[24]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); (2011) 212 A Crim R 72; [2011] VSCA 157 (‘Clarkson’).
[25]Osman v The Queen [2021] VSCA 176, [97] (Priest, T Forrest and Emerton JJA).
[26]Ibid.
[27]Clarkson (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); (2011) 212 A Crim R 72; [2011] VSCA 157.
In this appeal, it is unarguable that the appellant was able to assemble a solid block of mitigating factors. The appellant’s early plea, its enhanced utilitarian value as a consequence of being made during a time of when the pandemic was affecting court delays, the additional custodial burden arising from COVID-19 prison restrictions and from the knowledge of his inevitable deportation and accompanying likely destruction of his family unit, as well as his lack of any prior criminal history, were all matters that operated in the appellant’s favour in the sentencing calculus. And they were all considered by the judge in his conscientious sentencing reasons.
Notwithstanding the force of these factors, general deterrence must have been recognised as the principal sentencing consideration. Over the last decade, this Court, on numerous occasions, has reflected on the gravity of the nature of cultivation of commercial quantities of narcotic plants and emphasised that general deterrence is an important consideration which, ordinarily, should be at the forefront of sentencing considerations.[28]
[28]See for example R v Mason [2006] VSCA 55, [16] (Buchanan JA; Maxwell P and Redlich AJA agreeing); Doan v The Queen [2010] VSCA 250, [11] (T Forrest AJA; Nettle and Harper JJA agreeing); Nguyen v The Queen [2016] VSCA 198, [139]–[141] (Redlich JA, Tate and Whelan JJA agreeing) and Mohtadi [2018] VSCA 238, [48] (Kyrou and Kaye JJA).
Recently in Nguyen[29] this Court emphasised the need for sentencing for the offence of cultivation of a commercial quantity to increase. The Court stated:
Factors relevant to assessing the seriousness of a particular cultivation offence include the offender’s role, and the scale, sophistication and duration of the cultivation activity. Because the offences are quantity-based, the quantity cultivated will ordinarily be a factor of critical importance.[30]
[29][2021] VSCA 211.
[30]Ibid [30] (Maxwell P and Sifris JA) (citations omitted).
After reviewing comparable cases and statistics, the Court in Nguyen[31] said this:
[I]t is clear that despite repeated indications from this Court that sentences for this offence needed to increase, sentencing practice has remained essentially unchanged. Concern was first expressed about the state of sentencing for [commercial quantity] cultivation as long ago as 2006, in Director of Public Prosecutions v Duong,[32] when the Director called for increased sentences given what was said to be the increased prevalence of offending of this kind. In 2010, in Nguyen v The Queen,[33] the Court (Maxwell P, with whom Buchanan JA agreed) questioned the adequacy of current sentencing for the offence, in the light of the maximum penalty of 25 years’ imprisonment, stating that this was “a matter of the first importance”.[34]
[31][2021] VSCA 211, [44] (Maxwell P and Sifris JA) (citations in original).
[32][2006] VSCA 78, [17]–[19] (Warren CJ).
[33][2010] VSCA 127.
[34]Ibid [29]–[31], [40].
In this case, the appellant has pleaded guilty to cultivating almost four times the applicable threshold quantity of the more serious charge of cultivating a large commercial quantity.
Whilst it cannot be concluded that the appellant was a principal in this criminal enterprise, nor was he a menial underling. He was responsible for hiring two vehicles at significant cost. The appellant went very frequently to the crop houses. His rented vehicles were seen at the two crop houses a total of 92 times over the course of about five months. There is no error in the judge’s characterisation of the appellant’s role. He concluded correctly, in our view, that the appellant’s role in the offending was ‘not that of a mere crop sitter’; that the appellant was to receive an unknown financial reward for his participation in the cultivation although, in conformity with an apparent plea bargain, he would proceed on the basis that the financial reward was modest; that he played a role in renting two vehicles used by the criminal enterprise in facilitating the cultivation; and that he was physically present at the Truganina factory on 9 August 2021 when the search warrant was executed at which time he was observed attempting to decamp by running on the roof of an adjacent factory, leaping onto the roof of a hire vehicle and then into the arms of police.
Whilst there may be a lack of clarity as to the appellant’s precise role in the enterprise, there is abundant clarity as to the enterprise’s scope. This was large scale highly sophisticated criminal offending. Drug cultivation is a serious offence. Commercial quantity cultivation is ‘especially serious, as is made clear by the maximum penalty of 25 years’ imprisonment’[35] and large commercial quantity cultivation, carrying a maximum of life imprisonment, is more serious again. The judge was correct to place emphasis on general deterrence[36] and correct to note that in a quantity based sentencing regime, the quantity involved is a very significant matter in sentencing for these sorts of offences.[37]
[35]Nguyen [2021] VSCA 211, [30] (Maxwell P and Sifris JA) (citations omitted).
[36]Reasons, [16] citing R v McLeish (1982) 30 SASR 487, 492.
[37]Reasons, [17] citing Nguyen v The Queen [2010] VSCA 127, [19].
We consider that the sentence imposed strikes an appropriate balance between the appellant’s suite of mitigatory factors, the size of the criminal enterprise including the amount of cannabis actually cultivated, the appellant’s apparent role within that enterprise, and the concomitant emphasis that must be accorded to the principle of general deterrence in the sentencing calculus. We consider the sentence to be well within the range of sentences available to the judge in the reasonable exercise of his sentencing discretion.
The appellant has failed to establish his sole ground of appeal. The appeal will be dismissed.
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