Nguyen (a pseudonym) v The King
[2022] VSCA 284
•16 December 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0082 |
| GRAHAM NGUYEN (A PSEUDONYM)[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]Pseudonyms have been used in the place of the names of the applicant, other individuals and places because the applicant offered to provide assistance to authorities.
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| JUDGES: | KYROU JA, KIDD and LASRY AJJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10 November 2022 |
| DATE OF JUDGMENT: | 16 December 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 284 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1875 (Judge Cahill) |
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CRIMINAL LAW – Appeal – Sentence – Application for leave to appeal against sentence – Cultivation of commercial quantity of narcotic plant – Trafficking in drug of dependence – Offer to assist authorities – Total effective sentence of 4 years’ imprisonment, 2 years and 6 months non‑parole period – Whether judge gave insufficient discount for offer to assist authorities – Leave to appeal refused.
Sentencing Act 1991, s 5(2H)(a).
Haamid v The Queen [2018] VSCA 330, Farmer v The Queen [2020] VSCA 140, applied.
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| Counsel | |||
| Applicant: | Mr TR Marsh | ||
| Respondent: | Ms DI Piekusis KC | ||
Solicitors | |||
| Applicant: | Giorgianni & Liang Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
KYROU JA
KIDD AJA
LASRY AJA:
Introduction and summary
On 11 June 2021, following a trial before a judge sitting alone in the County Court, the applicant, now aged 47 years, was found guilty of one charge of cultivating a commercial quantity of a narcotic plant[2] and one charge of trafficking in a drug of dependence.[3]
[2]Contrary to Drugs, Poisons and Controlled Substances Act 1981, s 72A.
[3]Contrary to Drugs, Poisons and Controlled Substances Act, s 71AC(1).
Following a plea hearing which lasted over four days, the applicant was sentenced on 26 November 2021 as follows:
Charge on Indictment
Offence
Max Penalty
Sentence
Cumulation
1 Cultivating a commercial quantity of a narcotic plant (cannabis) 25 years 3 years and 9 months Base 2 Trafficking in a drug of dependence (cannabis) 15 years 10 months 3 months Total Effective Sentence: 4 years’ imprisonment Non-Parole Period: 2 years and 6 months
The applicant’s co-offender, Mr Kim,[4] pleaded guilty in the Magistrates’ Court to a single charge of trafficking in a drug of dependence, being cannabis. On 30 September 2020, he was sentenced to 8 months’ imprisonment.
[4]A pseudonym.
The applicant has applied to this Court for leave to appeal against sentence on one ground:[5]
The learned sentencing judge erred in finding that the Applicant was only entitled to a ‘modest discount on sentence’ for providing information which could have assisted authorities.
[5]In these reasons, the proposed ground of appeal is referred to as the ground of appeal.
Extension of time
The application for leave to appeal was not filed within the time provided by s 279(1) of the Criminal Procedure Act 2009, being 28 days of the date of sentence. That would have required the notice to have been filed by 24 December 2021.
It was not until 28 June 2022 that the applicant’s lawyers filed an application for an extension of time within which to file a notice of application for leave to appeal. The application for an extension of time is supported by an affidavit of the applicant’s solicitor affirmed on 28 June 2022. The application for extension of time is opposed by the respondent.
The affidavit indicates that the applicant’s expression of a desire to appeal against conviction and sentence occurred two days before the time limit which applied in this case. There were then a series of steps taken which included approval by Victoria Legal Aid of funding of the application for leave to appeal against sentence on 21 March 2022 and the filing of an application for leave to appeal against sentence and an application for an extension of time on 28 June 2022. No application for leave to appeal against conviction was made.
The initial delay in embarking on the application for leave to appeal is therefore attributable to the applicant himself. However, as this Court has said on several occasions, the discretion to grant an extension of time in which to apply for leave to appeal is a broad one and must be informed by what the interests of justice require.[6] Here the delay, whilst significant, was not substantial. Apart from the delay in the applicant taking action to initiate an application for leave to appeal by giving instructions, the further delay was also caused in part by a lack of funds and a change in both solicitors and counsel, which was likely to have been outside the applicant’s control.
[6]See, eg, Madafferi v The Queen [2017] VSCA 302, [11].
In addition, and in considering whether the extension sought should be granted, the ground of appeal was arguable, as counsel demonstrated in the hearing before us, and was on a sensibly limited issue. Therefore, having considered the evidentiary material, we have concluded that the extension of time sought by the applicant to enable the application for leave to proceed should be granted.
Circumstances of the offending
Charge 1
Between 12 March 2020 and 20 March 2020, the applicant was involved in the cultivation of cannabis at a property in Ballarat.[7] The property had been modified to allow for the cultivation of cannabis to go undetected and was being used as a substantial ‘grow house’.
[7]Location anonymised.
On 20 March 2020 when police searched the Ballarat property, it was found equipped with wall and floor coverings, lamps, bastion roof vents, grow pots and an electricity bypass. There were 281 plants being grown in various locations around the house. Police also located bags of harvested cannabis stalk, leaf waste and empty grow pots.
Charge 2
Between 19 March 2020 and 20 March 2020, the applicant was involved in trafficking in cannabis at a property in Stawell.[8] On 19 March 2020, the applicant made a return trip from the Stawell property to Ballarat with his co-offender Mr Kim. The applicant and Mr Kim stayed overnight in the Stawell property and were present at the property on 20 March 2020 when police attended. It was this conduct for which the co-offender had been sentenced in the Magistrates’ Court.
[8]Location anonymised.
Upon searching the Stawell property, police located heaters and fans operating in a room where 7.6 kilograms of cannabis were being dried on a rack. In the same room, police located three bags containing harvested cannabis leaf and branch waste product.
Arrest
The applicant was arrested and interviewed by police on 20 March 2020. He told them he had been hired to demolish cabinets and remove old furniture at the Stawell property. He said he did not know the name of the person who had hired him and that he had stayed overnight with Mr Kim at the property. The applicant said that he had nothing to do with drying the cannabis.
During his interview with police on 20 March 2020, the applicant gave no indication that he was willing to assist the police. On the contrary, the applicant used his entitlement to make a telephone call to contact a person he described as his ‘girlfriend’. However, he in fact called Hoang,[9] the alleged principal of the criminal enterprise, and informed her that he was in custody and that the Stawell property had been raided by police.
[9]A pseudonym.
The applicant was initially remanded in custody. He was admitted to bail on 16 October 2020 and remained on bail until 11 June 2021 when, following guilty verdicts in the trial before a judge alone, he was remanded in custody for plea and sentence.
The applicant conducted his trial on limited issues, admitting several facts. Only the botanists who examined the cannabis found in the Ballarat and Stawell properties were required to give evidence. The issue at the trial in respect of charge 1 was whether the prosecution could prove that the applicant was aware that there were more than 100 plants growing at the Ballarat premises, though he admitted being involved in the cultivation. In relation to charge 2, the applicant contended that he was not aware of the cannabis drying in the room and denied possessing the drying cannabis for sale or preparing it for sale.
Plea hearing
The applicant’s plea commenced on 30 August 2021. The hearing was adjourned following an application made by his counsel to obtain material relevant to the issue of his cooperation with police and the provision of information to them.
The second listing of the plea was on 22 September 2021. The matter was again adjourned following an application made by the applicant’s counsel, as there had not been sufficient time to obtain the material previously sought.
The third listing of the plea was on 29 October 2021 and was conducted in closed court. The purpose of the listing was to enable the judge to confirm that he had sufficient information to consider the issue of the applicant’s cooperation with police and the provision of information. The applicant was not present at the hearing and so the matter was adjourned for the plea to take place on 5 November 2021.
Insofar as the applicant’s plea related to submissions about his assistance to authorities, on 5 November 2021 it was conducted in closed court.
The applicant tendered a statement to police of what he could say as a prosecution witness against Hoang. This ‘can say’ statement was dated 13 September 2021 and comprised 17 short paragraphs. In broad summary, in those paragraphs, the applicant:
(a)named Hoang as the woman who engaged him to do work at the Ballarat and Stawell properties, and disclosed details of her aliases, residential address, Facebook account, ‘yellow app’ nickname, mobile telephone number and the car she drove;
(b)named Hoang’s husband and stated that he lives in Vietnam, ‘got into fights with other criminals’ and is ‘a well-known mafia gangster person’;
(c)stated that Mr Kim told him that Hoang was the real owner of the Stawell property, but she paid someone to become the registered proprietor on the title;
(d)stated that, in early 2020, Hoang paid him to help out Mr Kim with whatever he needed and that he ‘reluctantly’ agreed to do so because he ‘was desperate as [he] needed to pay for [his] migration lawyers’;
(e)when he was granted bail for the current offending, he asked Hoang to tell the police that ‘she was the person responsible’, but she refused and ‘indicated that she had a lot of contacts in Melbourne and that [the applicant] should behave [himself]’; and
(f)stated that he was ‘willing to help police prosecute [Hoang] and will give evidence in court for the police’.
On 26 October 2021, police spoke to the applicant, but they were not able to take a full statement from him with the assistance of an interpreter. However, the police recorded that the applicant told them that, when he telephoned Hoang during his police interview, she told him to say nothing ‘or else [his] family in Vietnam would be at risk’. The police also recorded that the applicant told them that he knew that Hoang’s husband ‘is a violent man’ and that the applicant was ‘fearful of what [Hoang’s husband] is capable of in Vietnam’.
The prosecution tendered an undated letter prepared by a detective senior constable who was involved in the investigation of the offending at the Ballarat and Stawell properties (‘police letter’). The police letter relevantly stated the following:
The information provided by [the applicant] only confirms what was believed by investigators and in my professional opinion holds little to no value for any future criminal proceedings against [Hoang]. [I]nvestigators have no physical and/or forensic evidence linking [Hoang] to any offences identified throughout the investigation …
…
Investigators are firmly of the belief [that the applicant’s telephone call to Hoang on 20 March 2020] was an attempt by [the applicant] to alert [Hoang] that the [Stawell] property had been raided by Police and that he was in custody. These actions [by the applicant are] somewhat different to the position held now where he has indicated he is willing to ‘assist’ investigators with evidence against [Hoang]. The motivation for such willingness to now assist investigators in my opinion must be taken into account when considered.
…
Investigators have submitted a detailed information report detailing the intelligence supplied to investigators by way of [the applicant’s] can-say document. This information report details the alleged involvement of [Hoang] in the cultivation set-ups and may be of some value in future investigations if [Hoang] can be somehow linked, either physically or forensically to such offending. In contrast, I don’t believe this intelligence to be of any significant value for any investigations undertaken over the last 18 months … and as such, I don’t believe any criminal proceedings will be initiated against [Hoang] at this point in time due to the lack of corroborating evidence to support such claims made by [the applicant].
Relevant submissions on the plea
The applicant submitted that a term of imprisonment in combination with a community correction order (‘CCO’) was appropriate.
It was contended that the judge should be satisfied that the applicant had provided assistance to police and that, as a consequence, s 5(2H)(a) of the Sentencing Act 1991 (‘the Act’) applied. That section is in the following terms:
In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a [CCO] in accordance with section 44) unless—
(a)the offender has assisted or has given an undertaking to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence; …
Because the charge of cultivating a commercial quantity of cannabis is a category 2 offence within the meaning of s 5(2H) of the Act, the judge was precluded from imposing anything but a custodial sentence, all of which was to be served, unless the applicant fell within the exception in para (a).
It was argued by the applicant on the plea that, regardless of the weight that the Court may place on his assistance to authorities, this did not impact the risk to which he had exposed himself by doing so, which ought to weigh heavily in moderating the sentence.
It was also submitted by the applicant that the judge could not draw the inference that the applicant was involved in setting up the Ballarat property for cannabis cultivation given the confinement of the dates in the indictment. There was no evidence that the applicant had been at the Ballarat property other than in the week in March on the indictment, save for a single date in November.
The applicant emphasised that he has no prior convictions and is of previous good character and that, despite having run a trial, the trial was on limited issues with significant concessions and an agreed statement of facts. Therefore, according to the applicant, although he was not entitled to the benefit that would have flowed from pleas of guilty, the narrow issues in the trial should be reflected in the sentence. He relied on the fact that he now faces deportation, which has an impact on his time in custody, and the loss of the right to settle in Australia, being something for which he had fought very hard as an asylum seeker. It was said that he came to Australia by boat and he has now put that at risk by making the decisions he did, albeit under financial pressures.
The prosecution’s submissions concerning the information provided by the applicant in his ‘can say’ statement were that the information was ‘fairly limited’ and lacking in detail. The distinction was highlighted between the course taken by the applicant in this case and a case where there was an early plea by an offender with the provision of useful assistance to police at the earliest opportunity.
Reasons for sentence
In his reasons for sentence, the judge referred to the applicant’s age, lack of prior convictions and personal circumstances, including his birth and background in Vietnam. His Honour noted that the applicant was now in Australia on a bridging visa, the importance of that being that if he was sentenced to more than 12 months’ imprisonment he would, in all likelihood, be deported back to Vietnam.
The judge referred to various health conditions from which the applicant was suffering and to a report from a psychologist, Gina Cidoni, who had diagnosed the applicant with an adjustment disorder with severe depression and anxiety.
His Honour then reviewed the applicant’s provision of information to police in relation to Hoang. The judge noted the assessment in the police letter of the value of the information in the applicant’s ‘can say’ statement.
The judge noted defence counsel’s submission that a substantial sentencing discount should be afforded to the applicant simply on the basis that he had provided assistance in the investigation or prosecution of an offence and that questions of his motivation for doing so were irrelevant. He also noted the other mitigatory factors upon which counsel relied.
The judge noted the prosecution submission that, even if the applicant’s assistance engaged s 5(2H)(a) of the Act, in the absence of the applicant’s information being of significant value, the judge should not impose a sentence other than one that was to be fully served.
The judge stated that he was satisfied that the applicant had identified Hoang as the person who had hired him and had said that she was the true owner of the Stawell property. The judge said that he was also satisfied that the applicant did not know that the police already had intelligence on Hoang when he provided the information to them. The judge accepted that the applicant’s disclosures might assist in Hoang’s prosecution and that the applicant had ‘provided assistance in the relevant sense’.[10] Accordingly, the judge concluded that the applicant had provided assistance to police such as to bring himself within s 5(2H)(a) of the Act.
[10]DPP v Nguyen (a pseudonym) [2021] VCC 1875, [93] (‘Sentencing remarks’).
However, the judge said that he was not satisfied that the applicant’s assistance was a significantly mitigating factor. He concluded that the evidence indicated that the assistance was only ‘of limited benefit to police’[11] and it was offered only after the applicant had stood trial. His Honour was not satisfied that the provision of assistance by the applicant was motivated by genuine remorse. He concluded that the applicant’s assistance was ‘not of such significance as to warrant a substantial discount on sentence’,[12] and that a modest reduction in the applicant’s sentence was all that was required. The judge said that departure from what he described as the ‘legislative norm’ established by s 5(2H) of the Act was not justified.[13]
[11]Sentencing remarks, [96].
[12]Sentencing remarks, [99].
[13]Sentencing remarks, [99].
Legal principles
The principles which apply to the way in which a sentencing judge may give weight to cooperation by an offender with law enforcement authorities in the intuitive synthesis process of sentencing are not in contention. They were set out in detail by this Court in Haamid v The Queen.[14] In the subsequent judgment of Farmer v The Queen, referring to Haamid, those principles were shortly summarised as follows:
It is well-established that providing assistance to law enforcement authorities can be a powerful mitigating factor in sentencing. The potency of its mitigation depends on various factors, including the nature and gravity of the crime, the benefit to authorities, the risk posed to the offender and the extent to which the offender will require protective measures in prison, making incarceration more onerous. Underpinning these factors is the very powerful public interest in encouraging offenders to cooperate with law enforcement authorities. In order to determine the extent to which assistance might moderate a sentence, it is necessary to have regard to the relevant factors. As a comparison of R v Johnston and Director of Public Prosecutions v Cooper shows, there can be a marked difference in the weight accorded to assistance in the bringing together of the various integers relevant to sentence.[15]
[14][2018] VSCA 330 (‘Haamid’).
[15][2020] VSCA 140, [71] (citations omitted) (‘Farmer’).
The statements of the applicable principles in Haamid and Farmer demonstrate the breadth of the discretion residing in a judge sentencing an offender who has cooperated with authorities by the provision of information about an accomplice.
Submissions on this application
The essence of the argument put before us on behalf of the applicant was that, when the judge concluded that the applicant’s disclosures to police were of ‘limited benefit’,[16] he fell into error both as to that conclusion and to the prominence or weight to be given to the value of the information.
[16]Sentencing remarks, [96].
Relying on the observations of the New South Wales Court of Criminal Appeal in R v Cartwright,[17] counsel for the applicant was critical of what he described as the judge’s ‘scant analysis’ of the authorities in relation to assistance to the authorities. It was submitted that the information provided by the applicant was significantly more valuable than the judge had concluded. The judge, it was argued, failed to consider the nature and gravity of the offences to which the information relates and also failed to consider the risk the applicant was taking in making the disclosures.
[17](1989) 17 NSWLR 243, 252–3.
Counsel for the respondent rejected the applicant’s argument, asserting that the judge had properly considered the relevant principles. Counsel examined the sentence imposed in the context of the overall facts of the case and submitted that the sentence was appropriate, both as to the individual sentences and the order for cumulation. That was said to have occurred in circumstances where the applicant had stood his trial and provided the proposed assistance to authorities only after he had been found guilty of the offences with which he was charged.
Consideration
In our opinion, it was open to the judge to consider the imposition of a ‘combination’ sentence, that is, a sentence of imprisonment combined with a CCO. That option arose because the judge was appropriately satisfied that the applicant had provided assistance to the police in the ‘relevant sense’,[18] which brought him within s 5(2H)(a) of the Act and thus removed the mandatory aspect of the sentence to be imposed for a category 2 offence.
[18]Sentencing remarks, [93].
The judge sentenced the applicant on the basis that the assistance provided by him to the police was of limited benefit. On a reading of the ‘can say’ statement, we respectfully agree with the judge’s conclusion.
In this Court, the applicant submitted that the judge’s conclusion represents an error in the relevant sense because the conclusion is wrong and also undervalues the prominence or weight to be given the information.
However, the judge reached his conclusion about the appropriate sentence to be imposed based on a number of relevant matters. In relation to the provision of assistance by the applicant, the judge was concerned with an offender who did not provide the assistance at the first opportunity when he was arrested and charged, but rather waited until after he had stood trial and been found guilty of both offences. Apart from an assessment of the value of the information, we are of the view that this was a relevant matter because it informed the important sentencing consideration of remorse. In addition, the applicant had cautioned the person he suggested was the principal of the criminal enterprise after he had been arrested by police.
This Court in Haamid emphasised the lack of a tariff or standard discount for the provision of information, which acknowledges the broad variety of circumstances which can arise. Among the list of factors relevant to the determination of a sentencing discount are the quality and reliability of the information and its value to law enforcement authorities.[19]
[19][2018] VSCA 330 [24].
As to the quality or usefulness of the applicant’s information, the judge had evidence from the police that the applicant’s disclosures, without any corroborating evidence, were not of significant value for the reasons we have already identified. The police had long considered Hoang as being involved in a Vietnamese drug syndicate which conducted cultivation ‘set-ups’. The problem, which was not solved by the applicant’s information, remained the lack of physical or forensic evidence which linked her to this offending.
For an 18 month period between his arrest in March 2020 and the provision of his ‘can say’ statement in September 2021, the applicant gave no indication of a willingness to assist police in any prosecution of Hoang. Self-evidently, information given to police by an offender about a co-offender soon after the offender’s arrest is likely to be much more valuable than information that is provided over a year later. That is particularly so where the offender assisted the co‑offender by informing him or her that the offender had been arrested and thus potentially hindered the apprehension and prosecution of the co-offender.
In our view, the judge’s conclusion about the value and circumstances of the applicant’s information was open on the evidence before him. Combined with other sentencing factors which were not the subject of debate on this application, we consider that his Honour made no error in his assessment of the usefulness of the applicant’s information or the effect of it on the sentence he imposed on the applicant. Those other sentencing factors include the gravity of the offending, the maximum penalties, the absence of remorse, specific deterrence, general deterrence, current sentencing practices and the applicant’s personal circumstances. When all these factors are considered, it is apparent that the individual sentences imposed by his Honour and the order for cumulation do not suggest that insufficient weight was given to the applicant’s assistance to the authorities.
Accordingly, the application for leave to appeal will be refused.
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