My v The State of Western Australia - [2018] WASCA 1

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MY -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 1

CORAM: BUSS P
MAZZA JA

HEARD: 20 DECEMBER 2017

DELIVERED : 5 JANUARY 2018

FILE NO/S: CACR 183 of 2017

BETWEEN: DUY LINH MY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :GOETZE DCJ
File No  :IND 480 of 2016

Catchwords:

Criminal law - Application for leave to appeal against sentence - Cultivation of prohibited plant with intent to sell or supply - Possession of prohibited drug with intent to sell or supply - Fraudulent appropriation of power - Possession of unlawfully obtained property - Breach of bail - Manifest excess - First limb of the totality principle

Legislation:

Bail Act 1982 (WA), s 51(1)
Criminal Code (WA), s 390, s 417(1)
Misuse of Drugs Act 1981 (WA), s 6(1), s 7(1)
Sentencing Act 1995 (WA), s 9AA

Result:

Leave refused
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Barton v The State of Western Australia [2016] WASCA 196
Beins v The State of Western Australia [No 2] [2014] WASCA 54
Dias v The State of Western Australia [2017] WASCA 49
Kirby v The State of Western Australia [2016] WASCA 199
Lester v The State of Western Australia [2011] WASCA 128
Nguyen v The Queen [2017] VSCA 127
Nguyen v The State of Western Australia [2017] WASCA 195
Pham v The Queen [2013] VSCA 169
R v Pajic [2009] VSCA 53; (2009) 23 VR 527
R v Tabone [2006] VSCA 238; (2006) 167 A Crim R 18
Rafferty v The Queen [2002] WASCA 312
Sheppard v Blakey [2001] WASCA 309
The State of Western Australia v Charles [2016] WASCA 108
The State of Western Australia v Doyle [2017] WASCA 207

JUDGMENT OF THE COURT: This is an application for leave to appeal against sentence.
On 25 August 2017, the appellant pleaded guilty to, and was duly convicted of, seven offences. He was sentenced to a total effective sentence of 5 years' immediate imprisonment with eligibility for parole backdated to commence on 9 March 2017. The commencement date of this sentence was later amended to 3 March 2017.
The appellant, who is self‑represented, appeals to this court alleging that the individual sentences were manifestly excessive and that the total effective sentence infringed the first limb of the totality principle.
For the reasons that follow, leave to appeal should be refused.

The charges and the sentences imposed

The appellant was charged on indictment with six offences. He was charged with an additional offence as a result of breaching a bail undertaking by failing to appear in the District Court on 20 May 2016. The charges and the sentences that were imposed were as follows:

Indictment 480 of 2016
Count	Date of offence	Description of offence	Section	Maximum penalty	Final outcome
1	19 Jun 15	Possession of stolen or unlawfully obtained property	Criminal Code (WA) s 417(1)	7 years' imprisonment	Imprisonment 9 months concurrent
2	19 Jun 15	Cultivate a prohibited plant with intent to sell or supply (cannabis)	Misuse of Drugs Act 1981 (WA) s 7(1)(a)	10 years' imprisonment and/or $20,000 fine	Imprisonment 2 years 2 months cumulative
3	19 Jun 15	Possession of prohibited drugs with intent to sell or supply (cannabis)	Misuse of Drugs Act 1981 (WA) s 6(1)(a)	As for count 2	Imprisonment 1 year 9 months concurrent
4	19 Jun 15	Fraudulent appropriation of power	Criminal Code (WA) s 390	3 years' imprisonment	Imprisonment 8 months cumulative
5	02 Jul 15	Cultivate a prohibited plant with intent to sell or supply (cannabis)	Misuse of Drugs Act 1981 (WA) s 7(1)(a)	As for count 2	Imprisonment 1 year 8 months cumulative
6	02 Jul 15	Fraudulent appropriation of power	Criminal Code (WA) s 390	As for count 4	Imprisonment 3 months concurrent
Prosecution notice PE 22185/2017
20 May 16	Breach of bail undertaking	Bail Act 1982 s 51(1)	3 years' imprisonment and/or $10,000 fine	Imprisonment 6 months cumulative

The facts

The indictable offences concern a cannabis‑growing and distribution enterprise conducted by the appellant, his partner, Ms Thi Nga Nguyen, and her son, Mr Hoang Son Nguyen. That enterprise involved the growing of cannabis hydroponically in two houses. Ms Nguyen and her son were charged with offences which were largely the same as the appellant's. They were convicted after trial and were sentenced by a different judge. Ms Nguyen was sentenced to a total effective term of 6 years and 6 months' imprisonment with eligibility for parole. She appealed against that sentence on totality grounds. Leave to appeal was refused by this court on 24 October 2017: see Nguyen v The State of Western Australia.[1]
[1] Nguyen v The State of Western Australia [2017] WASCA 195.
The facts of the appellant's offending as found by the sentencing judge are as follows.
At 7.35 am on 19 June 2015, detectives executed a search warrant at the appellant's residence in Burswood. There they found quantities of cash totalling $32,000.[2] The appellant's explanations as to how he came by the cash were false (count 1).
[2] ts 5 ‑ 6, 25.
Later on 19 June 2015, detectives executed a search warrant at a house in Langford. There they found what the sentencing judge described as 'a proper little [cannabis] factory' in which 116 cannabis plants were growing. The sentencing judge found that the appellant, Ms Nguyen and her son had engaged in a joint enterprise to grow cannabis for commercial sale. The appellant's role was to purchase the necessary ingredients, attend at the house to take care of the plants and to package the cannabis that was grown into one‑pound packages which were sold for $3,000 each (count 2).
During the search of the Langford premises the police found a total of 8.096 kg of cannabis, some which was packaged ready for sale. The appellant admitted to possession of the cannabis and he stated that he sold it for cash (count 3).[3]
[3] ts 6 ‑ 7, 25.
Western Power staff attended the premises and, after assessing the amount of electricity that had been used, concluded that a large amount of the power had bypassed the meter box. The appellant admitted bypassing the power supply from the meter box. Western Power assessed the value of the electricity that had been bypassed at $76,225 (count 4).[4]
[4] ts 7, 25.
On 2 July 2015, police executed a search warrant at a house in Belmont. The entire house had been converted for the purpose of growing cannabis. Police found hydroponic equipment and a total of 91 cannabis plants grown hydroponically. Of these, 55 were mature plants and 36 were seedlings (count 5).[5]
[5] ts 7, 25.
As with the Langford premises, the appellant had fraudulently diverted electricity from the meter box, resulting in $11,593 worth of electricity being bypassed (count 6).[6]
[6] ts 7, 25.
The learned sentencing judge noted that the appellant and his co‑offenders kept records as if it were a legitimate business which, he said, demonstrated the commercial nature of what they were doing. He described their business as having a 'high level of sophistication' and 'a high degree of commerciality'.[7] His Honour said that the appellant was intricately involved in the business.[8]
[7] ts 26.
[8] ts 26.
Originally, the appellant was to be sentenced by Bowden DCJ on 19 August 2016, but, in breach of a bail undertaking he had signed, the appellant failed to appear. Later, the appellant was apprehended attempting to leave Australia from Darwin airport in order to evade being sentenced for the offences he had committed. It is this conduct which constituted the breach of bail offence.[9]
[9] ts 26.

The appellant's antecedents

The appellant is 39 years of age. He came to Australia in 2010 as a student. He also worked full‑time in restaurants. Eventually, he ceased his studies. Much of the income he earned was repatriated to his parents in Vietnam, principally to pay for medical treatment for his mother.
While in Australia the appellant met Ms Nguyen who is some 13 years his senior. Ms Nguyen had previously been involved in serious drug offending. In time, the appellant and Ms Nguyen established the criminal enterprise to which we have referred.
The appellant has no previous record of offending.

The sentencing remarks

His Honour characterised the enterprise in which the appellant was involved as 'a large‑scale operation'.[10] He expressly adopted the finding of the judge who had sentenced Ms Nguyen that she was 'the senior partner' in the enterprise, to the extent of 60%, and that the appellant was 40% responsible.[11]
[10] ts 27.
[11] ts 31.
The mitigating factors identified by his Honour were:
1.The pleas of guilty. His Honour reduced the sentences by 20% pursuant to s 9AA of the Sentencing Act 1995 (WA) by reason of the pleas.
2.The appellant's acceptance of responsibility and remorse.
3.His prior good character.
His Honour did not specifically identify any aggravating factors. He observed that the offences were serious and had an adverse effect upon consumers of the drug and the wider community.[12] He had regard to the need to impose sentences that deterred others from offending. His Honour took into account both limbs of the totality principle.[13]
[12] ts 29.
[13] ts 30.

The appellant's submissions

In support of the proposed ground of appeal, the appellant emphasised his personal circumstances including his favourable antecedents, his good behaviour in gaol and his favourable prospects for rehabilitation. He also submitted that he should have been given a discount of 25% for his pleas of guilty pursuant to s 9AA of the Sentencing Act. He submitted that the individual sentences were inconsistent with sentences imposed in what were said to be comparable cases.

Disposition of the appeal

The general principles applicable to this appeal are well established. They were set out in Nguyen v The State of Western Australia and do not require repetition here.[14]
[14] [26].
It is well established that the dominant sentencing consideration for the drug offences committed by the appellant is general and specific deterrence. Whatever the appellant's motivation, it is clear that he was a willing participant in a well‑planned and sophisticated cannabis‑growing and distribution business which generated considerable sums of money. While Ms Nguyen was 'a senior partner' of the enterprise, the appellant's role was very significant. It is clear from the quantity of cannabis found at the Langford premises that considerable quantities of hydroponically‑grown cannabis were produced for dissemination into the community. It cannot be overlooked that the business was conducted at two residential premises and that, at each house, the appellant fraudulently diverted electricity from the main electrical supply by bypassing the meter.
The breach of bail offence involved a plan to thwart justice by travelling to Darwin with the intention of fleeing the jurisdiction. It was a particularly serious example of its type.
The comparable sentences cited by the appellant in support of his proposed ground of appeal were unhelpful. The cases (Nguyen v The Queen;[15] Pham v The Queen;[16] R v Tabone[17] and R v Pajic[18]) were Victorian cases decided against the backdrop of different legislative provisions and sentencing regimes and which were, in any event, factually different from the case at hand. No decisions of this court were cited by the appellant. Having regard to the decision of this court in Nguyen v The State of Western Australia and in other cases such as Lester v The State of Western Australia,[19] there is no merit in the appellant's argument that the individual sentences for the drug offences and the total effective sentence were inconsistent with the range of sentences customarily imposed for such offences.
[15] Nguyen v The Queen [2017] VSCA 127.
[16] Pham v The Queen [2013] VSCA 169.
[17] R v Tabone [2006] VSCA 238; (2006) 167 A Crim R 18.
[18] R v Pajic [2009] VSCA 53; (2009) 23 VR 527.
[19] Lester v The State of Western Australia [2011] WASCA 128.
The appellant's attack on the individual sentences imposed on counts 1, 4 and 6 in the indictment and the breach of bail offence is no more than assertion.
As to count 1 and the offending against s 417(1) of the Code, there are no directly comparable cases decided by this court or its predecessor. However, some guidance can be discerned from Dias v The State of Western Australia;[20] Barton v The State of Western Australia;[21] and The State of Western Australia v Charles.[22]
[20] Dias v The State of Western Australia [2017] WASCA 49.
[21] Barton v The State of Western Australia [2016] WASCA 196.
[22] The State of Western Australia v Charles [2016] WASCA 108.
As to counts 4 and 6, there are no comparable cases decided by this court or its predecessor in relation to the appellant's offending against s 390 of the Code.
As to the offence involving the breach of the bail undertaking, there are no directly comparable cases decided by this court or its predecessor in relation to the appellant's offending against s 51(1) of the Bail Act 1982 (WA). However, some guidance can be discerned from Rafferty v The Queen;[23] and Sheppard v Blakey.[24]
[23] Rafferty v The Queen [2002] WASCA 312.
[24] Sheppard v Blakey [2001] WASCA 309.
It is not reasonably arguable that any of the individual sentences imposed on the appellant in the present case fell outside the 'range of sentences' which could have been imposed if proper principles had been applied. That is, it is not reasonably arguable that any of the individual sentences are unreasonable or plainly unjust. This is the only conclusion reasonably open when each individual sentence is examined from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the appellant. The absence of any comparable or directly comparable cases does not preclude this court from deciding that an individual sentence is not manifestly excessive. See The State of Western Australia v Doyle.[25]
[25] The State of Western Australia v Doyle [2017] WASCA 207 [36].
There is no merit in the argument that his Honour should have imposed a 25% discount pursuant to s 9AA of the Sentencing Act for the pleas of guilty. The effect of s 9AA of the Sentencing Act has been discussed in a large number of cases decided by this court. It is unnecessary to revisit those cases in any detail here. A necessary but not necessarily sufficient precondition to the giving of a 25% discount pursuant to s 9AA of the Sentencing Act is that the pleas of guilty must be entered or indicated at the first reasonable opportunity. See Kirby v The State of Western Australia.[26] The pleas of guilty in respect of the indictable offences could not be characterised in this way given that the appellant avoided being sentenced by Bowden DCJ on 19 August 2016 by attempting to flee the jurisdiction. Further and in any event, even if the appellant entered his pleas at the first reasonable opportunity (and in relation to the breach of bail offence that may be the case), it does not follow that a 25% discount must be given. It may be that after considering all of the circumstances including, for example, the strength of the case against an offender, a discount of something less than 25% is appropriate. See Beins v The State of Western Australia [No 2].[27] In the present case, the case against the appellant in respect of each offence for which he was charged was very strong. In our opinion, the sentencing judge did not err in his assessment of the discount to be given for the pleas of guilty pursuant to s 9AA.
[26] Kirby v The State of Western Australia [2016] WASCA 199.
[27] Beins v The State of Western Australia [No 2] [2014] WASCA 54.
In our opinion, none of the individual sentences were manifestly excessive and the total effective sentence was a proper reflection of the appellant's overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant sentencing principles and factors, and all relevant facts and circumstances including those referable to the appellant personally. The ground of appeal has no reasonable prospect of succeeding. Accordingly, leave to appeal should be refused.

Orders

The orders that we would make are as follows:
1.Leave to appeal is refused.
2.The appeal is dismissed.