Nguyen and Pham v The Queen

[2018] VSCA 322

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0107

HUNG VAN NGUYEN	Appellant
v
THE QUEEN	Respondent

S APCR 2018 0115

GIANG DUC PHAM	Appellant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 December 2018
DATE OF JUDGMENT:	4 December 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 322
JUDGMENT APPEALED FROM:	DPP v Nguyen;  DPP v Pham (Unreported, County Court of Victoria, Judge McInerney, 2 May 2018)

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CRIMINAL LAW – Appeal – Sentence – Cultivating a narcotic plant (cannabis) in quantity not less than commercial quantity – Sentences of 6 years’ imprisonment imposed on each appellant – Manifest excess – Whether sentences manifestly excessive – Crop sitters – Early pleas of guilty – No prior convictions – Sentences manifestly excessive – Parity – Whether imposition of same sentences infringed parity principle – Parity error not made out – Appeals allowed on manifest excess grounds – Appellants resentenced.

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APPEARANCES:	Counsel	Solicitors
For the Appellant, Nguyen	Mr C K Wareham	Paul Vale Criminal Law
For the Appellant, Pham	Mr P Doyle	McNamaras Barristers & Solicitors
For the Respondent	Mr J C J McWilliams	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA

BEACH JA:

1. On 20 April 2018, the appellants (Nguyen and Pham) pleaded guilty in the County Court to one charge of cultivating a narcotic plant (cannabis) in a quantity not less than the commercial quantity applicable to that narcotic plant.  On the same day, the appellant Nguyen pleaded guilty to charges of using a false document and possessing child pornography,  and the appellant Pham pleaded guilty to a charge of cultivating a narcotic plant (cannabis).

1. On 2 May 2018, the appellants were sentenced as follows:

The appellant Nguyen
Charge on Indictment H11378817	Offence	Maximum	Sentence	Cumulation
1.	Use a false document contrary to s 83A of the Crimes Act 1958	10 years	3 months	Nil
2.	Cultivate narcotic plant of a commercial quantity contrary to s 72A Drugs, Poisons and Controlled Substances Act 1981	25 years	6 years	Base sentence
3.	Possession of Child Pornography contrary to s 70(1) of the Crimes Act 1958	10 years	3 months	3 months
Total Effective Sentence:		6 years and 3 months
Non-Parole Period:		4 years and 6 months
Pre-sentence Detention Declared:		350 days

The appellant Pham
Charge on Indictment H11379537	Offence	Maximum	Sentence	Cumulation
1.	Cultivate narcotic plant of a commercial quantity contrary to s 72A Drugs, Poisons and Controlled Substances Act 1981	25 years	6 years	Base sentence
2.	Cultivate narcotic plant contrary to s 72B Drugs, Poisons and Controlled Substances Act 1981	15 years	1 year	3 months
Total Effective Sentence:		6 years and 3 months
Non-Parole Period:		4 years and 6 months
Pre-sentence Detention Declared:		350 days

1. On 17 August 2018, the appellants were granted leave to appeal against their sentences.  Their grounds of appeal are as follows:

The appellant Nguyen:

When regard is had to the following circumstances:

·the plea of guilty and the stage at which it was entered;

·the appellant’s lack of prior convictions;

·the personal circumstances of the applicant; and

·the appellant’s role in the offending

The individual terms of imprisonment imposed, the orders for cumulation and the non-parole period fixed are manifestly excessive.

The appellant Pham:

1.That the sentencing Judge misapplied the principles of parity, by applying the same sentence to both co-offenders for the charge of cultivation of a narcotic plant of commercial quantity and did not properly consider differences in their role and personal circumstances.

2.That in all other circumstances and considering current sentencing practices the sentence is manifestly excessive.

Circumstances of the offending

1. Nguyen was born on 6 May 1980 and was 37 years of age at the time of the offending and at the time of sentencing.  At the time of the offending Nguyen was unlawfully in Australia.  Pham was born on 14 November 1987 and was 29 years of age at the time of the offending and 30 years of age at the time of sentencing.  At the time of the offending Pham was lawfully in Australia on a bridging visa.

1. In 2017, police officers from the Mill Park Divisional Response Unit commenced an operation in relation to various premises which had been leased by another co-offender, Phuong Duy Tran.  Two of these premises were 20 Scotchmer Crescent, Mernda and 4 Clematis Place, Sunshine West.  These premises had been leased by Tran and subsequently converted into crop houses for the cultivation of cannabis.

1. On 2 May 2017 at about 6:40 pm, police officers were conducting surveillance on 20 Scotchmer Crescent.  Police had accessed the side of the house and heard sounds consistent with fans and filters used in hydroponic set ups for cultivating cannabis.  At about 7:34 pm, a Nissan Maxima vehicle exited the garage of the property and drove down Scotchmer Crescent.  Police followed the vehicle and intercepted it.  Pham was driving the vehicle with Nguyen in the passenger seat.

1. Nguyen produced a falsified New South Wales drivers licence in the name of ‘Ngoc Son Lam’, with a birth date of 30 October 1979.  The licence was ‘poorly contacted’ and did not have reflective images.  Investigation revealed that the drivers licence was false.  (Nguyen: charge 1 — use a false document.)

1. On 17 May 2017, police returned to 20 Scotchmer Crescent with a search warrant pursuant to s 81 of the Drugs, Poisons and Controlled Substances Act 1981.  Police located a sophisticated hydroponic set up for the cultivation of cannabis across five rooms of the house.  The set up included light shades, lamps, ballasts and charcoal exhaust fans as well as a reticulated watering system and an electrical bypass operating on a timer.  Police located 182 cannabis plants in pots within the house.  The total weight of the plants was 81.75 kg.  A commercial quantity of cannabis is 100 plants or 25 kg.  (Nguyen: charge 2; and Pham: charge 1 — cultivating a narcotic plant in not less than the commercial quantity.)

1. On 5 May 2017, police were conducting surveillance on 4 Clematis Place and noted that the Nissan Maxima that had been intercepted on 2 May 2017 was parked in the front yard of that property, together with a silver Toyota Camry which was registered to Pham.

1. On 17 May 2017 at 7:45 am, police returned to the Clematis Place premises with a search warrant pursuant to s 81 Drugs, Poisons and Controlled Substances Act 1981.  Police entered via the front and rear of the premises.  When police knocked on the front door, Pham and Nguyen ran from the rear of the premises and jumped into a neighbouring yard.

1. Shortly thereafter, Pham and Nguyen were apprehended, arrested and taken back to the Clematis Place premises.  An electrical bypass was located at the property.  Inside the garage police located a tent with hydroponic equipment for cultivating cannabis including fertilizer, a water pump, empty plant pots, drying cannabis and a mesh bag containing loose cannabis.  Police also located a white plastic bag containing cannabis seedlings in the bathroom cupboard. The total weight of the cannabis located was 8.254 kg.  In his record of interview, Pham stated that he had rented the property two months ago and that he had cultivated 20 cannabis plants.  (Pham: charge 2 — cultivating a narcotic plant.)

1. Following his arrest, police seized Nguyen’s mobile phone.  The contents of the phone were downloaded by police.  Police located three category 1 child exploitation material images.  The images depicted a teenage girl, approximately 12 to 14 years of age, naked and in a sexually suggestive pose.  (Nguyen: charge 3 — possession of child pornography.)

1. On their pleas, and in this Court, the Crown accepted that, in relation to the drug offences, Nguyen’s and Pham’s roles were that of ‘crop sitter’.

Relevant background

1. As we have already observed, at the time of the offending Nguyen was 37 and Pham was 29.  Neither had any prior convictions.  At the time of the offending, Nguyen was unlawfully in Australia.  Pham, however, was lawfully in Australia on a bridging visa.

1. Both appellants pleaded guilty at an early stage.  Nguyen pleaded guilty at committal on 19 January 2018, prior to any evidence being called.  Pham, however, pleaded guilty a little earlier, at the committal mention stage on 30 November 2017.  Both were in custody for 350 days prior to being sentenced by the judge. 

Sentencing reasons

1. The judge commenced his reasons for sentence with a description of the appellants’ offending.[1]  The judge observed that, for each appellant, the most serious charge was the one of cultivating a narcotic plant in a quantity not less than the commercial quantity.[2]

   [1]DPP v Pham (Unreported, County Court of Victoria, Judge McInerney, 2 May 2018) (‘Reasons’).

   [2]Ibid [21].

1. In the course of describing the circumstances of the commercial quantity cultivation offences, the judge recorded the contentions by Pham’s counsel (not disputed by the prosecutor on Pham’s plea) that Nguyen paid Pham $200 a day for his involvement in the commercial cultivation offending, and that Pham’s role as a crop sitter was more minor than Nguyen’s role as a crop sitter.[3] 

   [3]Ibid [14], [33].

1. The judge accepted that both of the appellants’ roles were that of crop sitters.[4]  In that context (the appellants being crop sitters), the judge said that the objective criminality was high.[5]

   [4]Ibid [21].

   [5]Ibid.

Were the sentences manifestly excessive?

1. In our view, the question of whether the sentences imposed on the appellants were manifestly excessive is determined by reference to the sentences imposed on the commercial cultivation charges.  In its written cases, the respondent conceded that the sentences on these charges were ‘stern and very much toward the higher end of the range for such offending’.

1. The appellants submitted, by reference to their own personal circumstances and the circumstances of the offending, that the sentences on the commercial cultivating charges were manifestly excessive, particularly in the light of this Court’s decision in McClelland v The Queen.[6]

   [6][2017] VSCA 124 (Ashley and Kaye JJA) (‘McClelland’).

1. In McClelland, the offender was convicted of cultivating a commercial quantity of cannabis following an eight-day trial in the County Court.  The amount involved consisted of 73 cannabis plants, weighing 61.488 kg.  Following his conviction and plea, McClelland was sentenced to 5 years’ imprisonment with a non-parole period of 3 years and 6 months.  On appeal, the Court held that the sentence was wholly outside the range of sentencing options available to the sentencing judge.[7]  The Court resentenced McClelland to a term of imprisonment of 3 years and 9 months, with a non-parole period of 2 years and 5 months.

   [7]Ibid [52].

1. In R v Pham,[8] French CJ, Keane and Nettle JJ said:

Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.[9]

[8](2015) 256 CLR 550 (‘Pham’).

[9]Ibid 559 [28].

1. A little later in their judgment, their Honours said that sentencing decisions of intermediate appellate courts in comparable cases were to be regarded as ‘yardsticks’ that may serve to illustrate (although not define) the possible range of sentences available.[10]

   [10]Ibid 559-60 [29].

1. In the present case, the appellants received sentences longer than the sentence imposed in McClelland following a plea of not guilty.  The appellants pleaded guilty at an early stage, and counsel for the respondent was unable to point to any factor in the case of the appellants, other than quantity, that may have justified longer terms of imprisonment being imposed upon them than was imposed, following a contested trial, in McClelland.

1. As to quantity we would note, however, that while the number of plants in the present case was double that in McClelland, the weight of cannabis was of the same order of magnitude in each case (61.488 kg in McClelland, and 81.75 kg in the case of the appellants).  In our view, the difference in number of plants and weight could not explain the imposing of sentences on the appellants beyond that which were held to be manifestly excessive in McClelland.

1. Of course, McClelland does not of itself answer the question of whether the sentences imposed in the present case on the commercial cultivation offences were manifestly excessive.  That said, having considered that case and the other cases to which we were referred, we are driven to conclude that there must have been some misapplication of principle by the sentencing judge.

1. Contrary to the respondent’s submissions, the sentences imposed on the appellants were more than ‘stern and very much towards the higher end of the range’.  They were, in our view, wholly outside the permissible range of sentencing options open to the judge.  The sentences on the other charges and the orders for cumulation, however, have not been shown to have been erroneous.  In the light of these conclusions, it will be necessary for this Court to resentence the appellants. 

Pham’s parity complaint

1. Having regard to our conclusions about manifest excess, it is strictly speaking not necessary for us to deal with Pham’s parity complaint.  In support of his parity complaint, Pham relied upon the following matters:

(1)       At the time of the offending, Pham was lawfully in Australia, as opposed to Nguyen who was unlawfully in Australia.  Pham’s likely deportation was a mitigating factor (even if not a particularly large one).  Nguyen was unable to rely on this matter as a mitigating factor. 

(2)       While both appellants were crop sitters, it was not disputed on Pham’s plea that his role in the commercial cultivation offending was more minor than Nguyen’s role.

(3)       While both pleas were early pleas, Pham’s plea was slightly earlier than Nguyen’s plea.

1. In his written case, Pham also contended that the judge did not properly consider ‘generally the greater gravity attaching to a person not lawfully entitled to be in the country committing the same offence’ by sentencing the appellants to the sentences imposed.  The correctness of that proposition as a general statement is capable of debate.  It is not necessary, however, to resolve that issue in the present case. 

1. While Pham is correct to observe that there were differences (albeit not particularly great ones) between himself and Nguyen, this does not mean that it was not open to the judge to impose the same sentences that he actually imposed on the appellants.  Reasonable minds might differ as to whether different sentences should have been imposed.  That is not a basis for upholding a parity complaint.  That said, the matters relied upon by Pham are capable of being taken into account by this Court on his resentencing.

Resentencing the appellants

1. In our view, the sentences of 6 years’ imprisonment imposed on the commercial cultivation offences should be set aside.  We would resentence Nguyen on that charge (charge 2 on his indictment) to a term of imprisonment of 3 years and 9 months.  We would resentence Pham on that charge (charge 1 on his indictment) to a term of imprisonment of 3 years and 6 months, having regard to the differences between his circumstances and Nguyen’s circumstances as we have identified them.

1. We would not interfere with the sentences imposed on the other charges (Nguyen’s charges 1 and 3, and Pham’s charge 2) or the orders for cumulation.  This results in a total effective sentence of 4 years for Nguyen, and 3 years and 9 months for Pham.  We would fix a non-parole period for Nguyen of 2 years and 4 months, and for Pham of 2 years and 2 months.

Conclusion

1. The appeals will be allowed.  The sentences imposed by the judge on the commercial cultivation offences will be set aside.  Orders will be made resentencing the appellant Nguyen to a total effective sentence of 4 years, with a non-parole period of 2 years and 4 months, and the appellant Pham to a total effective sentence of 3 years and 9 months, with a non-parole period of 2 years and 2 months.

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