Nguyen v R

[2012] NSWCCA 42

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Van Dung Nguyen v R [2012] NSWCCA 42

Hearing dates:

20 March 2012

Decision date:

19 April 2012

Before:

McClellan CJ at CL at [1]
Davies J at [2]
Garling J at [41]

Decision:

(1) Leave to appeal granted

(2) Appeal dismissed

Catchwords:

CRIMINAL LAW - appeal against sentence - cultivate commercial quantity of cannabis - parity principle - different roles of co-offenders - where sentence of co-offenders inadequate - whether sentence manifestly excessive.

Legislation Cited:

Drug Misuse and Trafficking Act 1985

Cases Cited:

Green v The Queen [2011] HCA 49; (2011) 86 ALJR 36
Nguyen v R [2008] NSWCCA 322
Rae v R [2011] NSWCCA 211
Rees v R [2012] NSWCCA 47
Thi Lan Nguyen v R [2009] NSWCCA 181
Truong v R [2009] NSWCCA 41
Van Cuong Pham v R [2009] NSWCCA 266

Category:

Principal judgment

Parties:

Van Dung Nguyen (Applicant)
Crown

Representation:

Counsel:
G Wendler (Applicant)
T Smith (Crown)
Solicitors:
Van Houten Law (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

CCA 2010/252846

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2011-05-17 00:00:00

Before:

Sides DCJ

File Number(s):

2010/252846

Judgment

1. McCLELLAN CJ AT CL:     I agree with Davies J.

1. DAVIES J: On 16 February 2011 the Applicant pleaded guilty to a charge of cultivating by enhanced indoor means a number of prohibited plants (being cannabis) not less than the commercial quantity contrary to s 23(2)(a) Drug Misuse and Trafficking Act 1985. The maximum penalty for this offence is 15 years imprisonment and/or a fine of 3500 penalty units.

1. Judge Sides QC sentenced the Applicant to a period of imprisonment for 3 years non-parole with an additional terms of 2 years and 3 months. This sentence was imposed after his Honour allowed a 25% discount for an early plea.

1. At the same time his Honour sentenced two other offenders who had pleaded guilty to knowingly take part in the cultivation of the same cannabis plants. Each of those offenders was sentenced to a period of imprisonment of 15 months non-parole with an additional term of 15 months.

1. The Applicant seeks leave to appeal against the sentence imposed upon him principally on the grounds of parity, and also because it is alleged that the sentence is manifestly excessive.

The facts

1. The following facts were found by the Sentencing Judge.

1. At about 6.25am on Thursday 29 July 2010 police officers executed a lawfully obtained search warrant at premises at 5 Amanda Place, Ingleburn. Shortly after they knocked on the front door they were greeted by the Applicant Van and the co-offender Thu. They are boyfriend and girlfriend. During a search of the premises the police located the other co-offender Son hiding behind a desk in the garage area. He is a Canadian citizen and was visiting Australia on a tourist visa at the time. He is the half-brother of Van.

1. When they searched the premises the police located a total of 157 cannabis plants growing in four different rooms by hydroponic means with the assistance of lights as well as some filters. The electricity meter box had been bypassed. It is clear and there is no dispute that the plants were being cultivated by enhanced indoor means.

1. In one room there were 50 cannabis plants that were about 30 centimetres high. Another room contained 44 cannabis plants that were about 10 centimetres in height. 26 cannabis plants were located in a third room and these were about 50 centimetres in height. In a large sunroom at the rear of the premises police found 37 cannabis plants that were approximately 100 centimetres in height. In the bathroom the police located five seedlings that had yet to produce any roots. These are not part of the 157 cannabis plants the subject of the charge.

1. The Applicant walked through the premises with the police and during this process, he made admissions that the rooms contained cannabis plants that he tendered and nurtured. He also advised the police that the heat lights in each room were powered by electricity that was obtained free because the meter had been bypassed.

1. Police arrested all three offenders and they were taken to the police station.

1. The Applicant participated in an ERISP interview and made full admissions to having cultivated the plants by enhanced indoor means and detailed an extensive knowledge of and ability to cultivate. He told the police he started growing the plants to obtain money.

1. Son also participated in an interview with the police and said that he had come to Australia about seven months before and had lived with various members of his family including the Applicant. He claimed that he only stayed at the premises where the plantation was found the night before and had no property there because his visit was short. However, in the bedroom he was occupying the police found numerous articles of clothing suitable to be worn by a man and an empty bag with an old wallet and identification. Further items in this room included a mobile phone plugged into a charger and a laptop computer. According to the Statement of agreed Facts: "The room he was occupying was consistent with a room being lived in by a person on a long term basis and not as an overnight visitor."

1. Thu also participated in an ERISP interview. She told police that she had visited the address where the plantation was found on five occasions in the last month. During their search the police observed a large amount of women's clothing throughout the bedroom area and also located her toothbrush, makeup, laptop computer and documents in her name.

1. In a hallway outside one of the bedrooms the police found six transformers in a cupboard. They found a further 30 transformers hidden in the roof cavity of the premises. The evidence discloses that the police found the fingerprints of the Applicant Van on a power board, two transformers, a charcoal filter and a globe. They found the fingerprints of Son on a switch and a globe and the fingerprints of Thu on a transformer.

1. According to the Statement of Agreed Facts, the criminality of Son and Thu arises on the basis that they assisted the Applicant in the cultivation process by moving and arranging hydroponic equipment to various parts of the premises. They also assisted in maintaining the premises so that it appeared normal to people in the local area, thereby reducing any suspicion of illegal activity.

Subjective features

1. The Applicant was born in Vietnam and came to Australia in 1991. He became a citizen in 1994. He is 34 years of age.

1. He had been in a relationship with Thu. He had one child to that relationship, and he had a child born to a woman with whom he had an earlier relationship. Although it appeared to be the case that Thu was living at the premises, she came to be separated from the Applicant and there were no plans for them to rekindle their relationship.

1. The Applicant claimed to have developed a gambling problem whilst he was at school and had accumulated a debt of some $10,000 on a credit card prior to his arrest. There was no evidence that he had any substance abuse problem, any mental health problems or an intellectual disability. He had no prior convictions.

1. He claimed to have set the cultivation up as a result of finding the hydroponic equipment in a park in Liverpool. He said he did it to pay off his debt. The Sentencing Judge doubted his credibility concerning the finding of the equipment partly because of its value and partly because he persistently lied to the probation officer by claiming that the two co-offenders played no active role in the offence.

1. The Sentencing Judge was satisfied beyond reasonable doubt that the offence was premeditated and motivated by greed. Given that the plants were different sizes he was satisfied that the venture was an ongoing one.

1. The Sentencing Judge found that the Applicant was clearly the instigator and his Honour was satisfied that the Applicant effectively recruited the other two to assist.

1. His Honour noted that there was no evidence the Applicant had acknowledged the potential harm of the offence, and that this fact disentitled him to any leniency because of remorse.

Ground 1: Parity

Ground 2: Sentence manifestly excessive

1. For reasons that will become apparent, it is appropriate to consider both grounds together, although I will deal first with principles associated with parity and how his Honour dealt with that matter.

1. A useful summary of matters with which the parity principle is concerned is to be found in Rees v R [2012] NSWCCA 47 in the judgment of Garling J (with whom Macfarlan JA and R S Hulme J agreed) at [50], and I have regard to those matters in what follows.

1. The Applicant says that he has a justifiable sense of grievance arising out of the disparity of the sentence imposed upon him compared to the sentences imposed on the co-offenders.

1. In Rae v R [2011] NSWCCA 211 Johnson J (with whom McClellan CJ at CL and Hidden J agreed) said at [68]:

This court has observed that considerable obstacles are faced by an applicant seeking to invoke the parity principle in circumstances where the sentencing Judge was fully aware of the sentences imposed upon a co-offender and the reasons for those sentences, and indicates in the sentencing remarks why the Judge is departing from the co-offender's sentence: Gill v R [2010] NSWCCA 236 at [58].

1. The Sentencing Judge made these observations about the respective roles of the three offenders:

(1)  Having doubted the Applicant's account of having come upon the hydroponic equipment in a park, his Honour said:

Even if true he had the wherewithal to set up the equipment, obtain and grow the plants... and to bypass the electricity meter box.

(2)  He also said:

... there is no evidence that anyone apart from these three were involved in the plantation, he was clearly the instigator and the Court is satisfied that he effectively recruited the other two.

(3)  A little later:

The Court is satisfied the Offender Van instigated the offence, set up the equipment and attended to the plants. The other two helped him. There is no evidence that they did so in a spontaneous way. In the Court's view, their roles were premeditated and, on the face of it, their roles were similar to one another and substantially less than the role and criminality of the Offender Van.

(4)  Again:

In the case of the Offender Van the Court is satisfied that he was motivated by a desire to earn profits... There is no evidence about what the other two were to receive for their role in the venture but, in the absence of evidence on the topic, the Court is satisfied that the only conclusion it can come to is that they were involved for financial reasons.

(5)  Finally, his Honour considered a number of cases decided by this Court, and said:

The criminality for the Offender Van is higher than for the appellant in the cases of Nguyen v R [2009] NSWCCA 181; Truong v R [2009] NSWCCA 41; and Pham v R [2009] NSWCCA 266.... In terms of roles, his case is closer to that of the appellant in Nguyen v R [2008] NSWCCA 322, but that case involved only a little over twice the commercial quantity: The role of the other two is more akin to the roles of the appellants in the first three mentioned cases.

1. These observations demonstrate clearly that the Sentencing Judge had the parity principle in mind when he sentenced each of the offenders. It is not suggested that his Honour made factual errors in the assessment of the different roles of the offenders.

1. Further, his Honour noted some particular matters of hardship to Son and Thu by reason of their imprisonment. In Green v The Queen [2011] HCA 49; (2011) 86 ALJR 36 French CJ, Crennan & Kiefel JJ said at [31]:

The court will refuse to intervene where disparity is justified by differences between co-offenders, such as age, background, criminal history, general character and part each has played in the relevant criminal conduct or enterprise.

1. For these reasons, as a matter of principle, no error has been shown in imposing different sentences. The further question is whether the difference is significant and bespeaks error. It is necessary when comparing the sentences to consider whether the sentences imposed upon the co-offenders were inadequate, and also whether (ignoring the co-offenders' sentences) the sentence imposed upon the Applicant was manifestly excessive.

1. With regard to the adequacy of the sentences imposed on the co-offenders Garling J in Rees expressed the matter in this way at [50(5)]:

(5)In determining whether there has been a discrepancy of a kind sufficient to give rise to a justifiable sense of grievance a court:

...

(iii)ought not intervene to reduce a sentence below a level, which would mean that the sentence would be wholly inadequate having regard to the offence involved and the criminality of the offender, and consequently the result would be an affront to the proper administration of justice: R v Chen [2002] NSWCCA 174; 130 A Crim R 300 at [289] per Heydon JA, Sully and Levine JJ; DGM at [58] per Latham J (McColl JA agreeing); Kelly at [12] per Johnson J (Simpson J agreeing); Green at [33] per French CJ, Crennan and Kiefel JJ.

1. In Green v The Queen French CJ, Crennan and Kiefel JJ said at [33]:

There is a question whether a sentence which would otherwise be appropriate can be reduced on the ground of disparity to a level which, had there been no disparity, would be regarded as erroneously lenient. In Lowe that question was answered explicitly in the affirmative by Mason J [Lowe v The Queen (1984) 154 CLR 606 at 613 and less explicitly but to like effect by Dawson J, with whom Wilson J agreed [at 623]. It has also been answered in the affirmative in a number of cases in the Court of Criminal Appeal of New South Wales [authorities omitted]. On the other hand, as Simpson J correctly pointed out in R v Steele [unreported, Court of Criminal Appeal, NSW, 17 April, 1997, at 8-11], the existence of a discretion, where unjustified disparity is shown, to reduce a co-offender's sentence to one which is inadequate does not amount to an obligation to do so. Certainly, the discretion of the Court of Criminal Appeal to reduce a sentence to a less than adequate level would not require it to consider reducing the sentence to a level which would be, as Street CJ put it in R v Draper, "an affront to the proper administration of justice."[unreported, Court of Criminal Appeal, NSW, 12 December 1986, at 5] Moreover, if the relevant sentencing legislation, on its proper construction, does not permit an inadequate sentence to be imposed, there can be no discretion on appeal to impose one. Whether or not the discretion to reduce a sentence to an inadequate level is available, marked and unjustified disparity may be mitigated by reduction of the sentence appealed against to a level which, although lower, is still within the range of appropriate sentences.

1. In considering both the Applicant's sentence and the co-offenders' sentences it is useful to examine a number of other cases involving the same offence. The Sentencing Judge considered four such cases. The Applicant submitted that one of those cases, Truong v R [2009] NSWCCA 41, was not significantly different from the present case in terms of criminality.

1. A brief summary of the cases follows.

(a) Nguyen v R [2008] NSWCCA 322

In this matter the Applicant pleaded guilty to a charge of cultivating not less than the commercial quantity of cannabis by enhanced indoor means. There were 105 plants involved. He also pleaded guilty to supplying cannabis in that he had in his possession 3708.7 grams of cannabis leaf. The maximum penalty for the first offence was 15 years imprisonment. His Honour considered that the offences fell within the middle range of seriousness. He allowed a 30% discount for the plea of guilty and for his remorse and contrition. It appears that he was the principal involved in the cultivation. In relation to the first count of cultivation he was sentenced to a total sentence of 5 years imprisonment with a non-parole period of 3 years and 6 months. An appeal to this Court was dismissed.

(b) Thi Lan Nguyen v R [2009] NSWCCA 181

In this matter the Applicant pleaded guilty to cultivating not less than the commercial quantity of cannabis by enhanced indoor means. The charge involved 172 cannabis plants. The maximum penalty for the offence is 15 years imprisonment. It was found that she agreed to look after the house where the plants were cultivated in return for financial gain and accommodation. There was no evidence to suggest that she initiated the cultivation. She was given a 25% discount for an early plea and sentenced to a period of imprisonment of 4 years with a non-parole period of 2 years and 6 months. An appeal to this Court reduced the sentence to a period of 3 years with a non-parole period of 1 year and 10 months.

(c) Van Cuong Pham v R [2009] NSWCCA 266

The Applicant pleaded guilty to an offence of cultivating by enhanced indoor means a commercial quantity of cannabis. There were 112 plants involved. The maximum penalty is 15 years imprisonment. The Judge found that the Applicant's role in the commission of the offence was at a relatively low level, he having been recruited by other unidentified persons. In effect he acted as a "babysitter" for the crop in return for receiving something between $10,000 and $15,000. The Applicant was given a 25% discount for an early plea. He was sentenced to a period of imprisonment of 3 years with a non-parole period of 18 months. An appeal to this Court alleging that the sentence was manifestly excessive was dismissed.

(d)  Thi Don Truong v R [2009] NSWCCA 41

The applicant pleaded guilty to the offence of cultivating not less than the commercial quantity of cannabis. The maximum penalty was fifteen years imprisonment. There were 189 plants involved. The judge considered her criminality fell a little below the middle of the range. The applicant received a 25% discount for an early plea and was sentenced to a non-parole period of 18 months with an additional term of two years. On appeal to this court against the severity of the sentence it was held that even if she did not initiate the cultivation enterprise she took it over and maintained it for commercial gain. The appeal against severity was dismissed.

1. A consideration of these cases suggests two things. First, the sentence imposed upon the Applicant was within the range of sentences to be found in those cases. No basis is shown for suggesting that Truong should be preferred. Secondly, the sentences imposed upon the co-offenders fell below the range of sentences in those cases. The decisions in Nguyen [2009] and Pham dealt with offenders who were not principals in the enterprise. Thos decisions suggest that the sentence given to the co-offenders was particularly lenient even bearing in mind the matters of hardship that impacted upon the co-offenders and that were taken into account by the Sentencing judge.

1. In the present matter the co-offenders were found to have been involved in a premeditated way for financial gain. His Honour likened their roles to those of the appellants in Nguyen [2009], Truong and Pham all of whom received higher sentences.

1. That said, I take into account what Latham J (with whom Young JA and Hidden J agreed) said in Pham at [26]:

In my view, the three decisions of this court that deal directly with offences committed under the new penalty regime [ie Nguyen [2008], Nguyen [2009] and Truong] tend to establish that the applicant's sentence was well within range. Considerable caution ought to be exercised in reaching any conclusion that a given sentence is outside the appropriate range when so few prosecutions have been brought to the court's attention. The applicant bears the onus of satisfying the court that the sentence is not just severe, but that it is manifestly excessive. I am not so persuaded.

1. This position remains the same. In my opinion the Applicant has not established that the sentence he received was manifestly excessive. Nor, considering the differences noted by the Judge in the respective roles of the offenders, the subjective matters peculiar to the co-offenders, and the leniency of the sentences given to the co-offenders, has the Applicant demonstrated that he has a justifiable sense of grievance in relation to the disparity of the sentences imposed.

Conclusion

1. I propose the following orders:

(1)Leave to appeal granted.

(2)Appeal dismissed.

1. GARLING J:I agree with Davies J.

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Decision last updated: 19 April 2012