Nguyen v R

[2009] NSWCCA 283

New South Wales
Court of Criminal Appeal

CITATION:	Nguyen v Regina [2009] NSWCCA 283
HEARING DATE(S):	13 November 2009
JUDGMENT DATE:	27 November 2009
JUDGMENT OF:	Basten JA at 1; Howie J at 2; Hislop J at 3
DECISION:	1. Leave to appeal granted; 2. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - sentence appeal - drug cultivation - sentence not manifestly excessive
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Electricity Supply Act 1995
CATEGORY:	Principal judgment
CASES CITED:	Bui v R [2008] NSWCCA 314 Des Rosiers v Regina [2006] NSWCCA 16; 159 A Crim R 549 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 R v AD [2005] NSWCCA 208 R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 R v Bloomfield (1998) 44 NSWLR 734 R v Holder (1983) 3 NSWLR 245 R v Knight; R v Biuvanua [2007] NSWCCA 283; 176 A Crim R 338 R v Morgan [1993] 70 A Crim R 368 Thi Lan Nguyen v R [2009] NSWCCA 181 Truong v R [2009] NSWCCA 41 Wong v R [2001] HCA 64; (2001) 207 CLR 584
PARTIES:	Dinh Hao NGUYEN (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2008/6167
COUNSEL:	M Dennis (Applicant) J Girdham (Respondent)
SOLICITORS:	Ly Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/6167
LOWER COURT JUDICIAL OFFICER:	Payne DCJ
LOWER COURT DATE OF DECISION:	29 August 2008

- 1 -

CCA 2008/6167

BASTEN JA
HOWIE J
HISLOP J

27 November 2009

Dinh Hao NGUYEN v Regina

Judgment

1 BASTEN JA: I agree that in this matter leave should be granted but the appeal dismissed, for the reasons given by Hislop J.

2 HOWIE J: I agree with Hislop J.

:

Introduction

On 29 August 2008, the applicant pleaded guilty to a charge pursuant to the Drug Misuse and Trafficking Act 1985 (“the Act”), s 23(2)(a) that he:

“Between 9 October 2007 and 11 December 2007 at Belmore in the State of New South Wales, cultivated a prohibited plant, namely cannabis being not less than the large commercial quantity, namely 202 plants in circumstances where the cultivation occurred inside a building located at 9 Allegra Avenue Belmore by applying artificial light.”

4 On 29 August 2008, the applicant was sentenced for that offence in the District Court to a non-parole period of 3 years 3 months imprisonment, commencing on 11 December 2007 and expiring on 10 March 2011, with a balance of term of 2 years 4 months commencing on 11 March 2011 and expiring on 10 July 2013.

5 In sentencing the applicant, her Honour, the sentencing judge, took into account four related offences on a Form 1. Those offences were: being found without lawful excuse on drug premises, contrary to the Act, s 36X(1)(a); divert electricity, contrary to the Electricity Supply Act 1995, s 64; interfere with electricity, contrary to the Electricity Supply Act, s 65; and resist officer in execution of duty, contrary to the Crimes Act 1900, s 58.

6 The facts, as set out in the remarks on sentence, were as follows:

“Police found on 11 December [2007] a large number of mature cannabis plants [202] being cultivated under hydroponic conditions in four rooms within the premises. This was a residential house at 9 Allegra Avenue, Belmore. A further amount of cannabis cuttings were located growing in a container within the laundry of the premises. Hydroponic lighting was operational in all four rooms. A number of fertilisers and plant foods were also present within the premises. The [applicant] was the sole occupant of the premises at the time the search warrant was executed.

…

[The applicant’s] role was to remain at the premises each night and to water and fertilise the plants … He also accepted as part of his role that he would change globes as required … [the operation] was in fact set up when he got there.”

7 The applicant has sought leave to appeal against sentence on the ground that the sentence imposed was manifestly excessive.

Subjective matters

8 Her Honour found:

(a) the applicant was born in 1954;
(b) he had no prior contact with the court and no prior convictions;
(c) he had good prospects for rehabilitation;
(d) he was contrite and sorry for his offending behaviour;
(e) there were special circumstances, those being that this was the first time he had been in custody and he had good prospects for rehabilitation; and
(f) he had come to Australia on a visitor’s visa, which expired on 14 November 2006. He had remained illegally in Australia thereafter.

Objective factors

9 Her Honour found:

(a) this was a very successful and well-thought out and organised operation;
(b) the applicant’s role in the operation was maintenance and upkeep;
(c) the Crown accepted the applicant’s role was towards the lower end of the scale;
(d) the offence was only slightly into the category of a large commercial quantity; and
(e) the applicant was entitled to a 25 per cent discount in sentence by reason of his plea of guilty.

Was the sentence manifestly excessive?

10 The maximum penalty for the offence to which the applicant had pleaded guilty was 20 years imprisonment. The large commercial quantity of cannabis plant, where the plant was cultivated by enhanced indoor means, was 200 plants. A standard non-parole period of 10 years was prescribed for that offence in the table to the Crimes (Sentencing Procedure) Act 1999, Div 1A. That period had been prescribed pursuant to an amendment which commenced on 1 January 2008, but which was expressed to apply to the determination of a sentence for an offence whenever committed, unless:

“(a) the court has convicted the person being sentenced of the offence, or
(b) a court has accepted a plea of guilty and the plea has not been withdrawn,

before the commencement of the amendments.”

11 The standard non-parole period was relevant in this case. No standard non-parole period was prescribed for offences involving less than 200 plants.

12 Her Honour, after noting the Crown’s acceptance that the applicant’s role was at the lower end of the scale, continued:

“Having said that it remains the position that without persons such as the prisoner, crops of this type would not survive. Their role is integral and absolutely critical and it has been made clear repeatedly by the Court of Criminal Appeal, that without underlings, if he could even be described as such, the drug trade would collapse.

The Court of Criminal Appeal has repeatedly stated the requirement of general deterrence in respect of offences of this type, in respect of drug offences generally …

The court is not assisted by any statistics. The statistics that have been made available relate to an offence contrary to s 23 with a maximum penalty of twenty years, that is to say, when what is involved is a large commercial quantity. But clearly the legislature has taken a particular view in respect of the cultivating of large commercial quantities of cannabis. General deterrence must be a significant feature of sentences for those who wish to engage in the cultivation, manufacture or supply of prohibited drugs. In my view the court is not assisted to any degree by the existing statistics.

Certainly there is real scope in this case for moderation away from the standard non-parole period but a judge must also, at the end of the sentencing exercise, or a judge is required to reconsider the standard non-parole period at the end of the sentencing exercise in order to ensure that the proposed sentence, and in particular the non-parole period, bears some relationship to the non-parole period prescribed by the legislature as the appropriate term for an offence falling within the mid-range of objective gravity …”

The applicant’s submissions

13 The applicant submitted that manifest excess could be discerned by comparing the subject sentence to three recent decisions of this Court and by reference to Judicial Commission statistics.

14 As to the Judicial Commission’s statistics relied upon by the applicant, the applicant said in his written submissions:

“There is only one example of an offence of cultivate large commercial quantity by enhanced indoor means dealt with subject to the standard non-parole period. That matter resulted in a sentence consisting of a non-parole period of three (3) years imprisonment, and a total term of five (5) years imprisonment. It is apparent that this statistic relates to the sentence imposed at first instance in Bui v R …

In the period from July 2006 to June 2008 there were five (5) offences of this type dealt with that were not subject to the standard non-parole period. The highest total term of imprisonment was one of five (5) years imprisonment. The highest non-parole period was one of three (3) years imprisonment.

Therefore, in the period from June 2006 to July 2008, a total of six (6) such offences were dealt with; whether or not the subject of the standard non-parole period. Both the non-parole period and the total term imposed upon the applicant are in excess of any other sentence imposed during that period for this offence.”

15 The relevant principles as to the use of comparable cases and statistics may be shortly stated as follows:

(a) As there is no single correct sentence: Markarian v R [2005] HCA 25; (2005) 228 CLR 357, it is necessary for the appeal court to evaluate the permissible range of sentence in the light of all of the admissible considerations affecting the case in hand, and drawing upon its own accumulated knowledge and experience: R v Holder (1983) 3 NSWLR 245 at 254, in order to determine if the sentence imposed is so excessive as to manifest error.

(b) In evaluating the sentence, the court may have regard to statistics such as those provided by the Judicial Commission of New South Wales and to similar cases in determining sentence patterns and the appropriate sentencing range: R v Bloomfield (1998) 44 NSWLR 734 at 739. Caution must be exercised in the use of such material as the sentence depends upon the facts of each case and bare statistics tell the judge very little which is useful and see Wong v R [2001] HCA 64; (2001) 207 CLR 584.

(c) In R v Morgan [1993] 70 A Crim R 368 Hunt CJ at CL observed, at 371:

“It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range.”

16 The recent decisions relied upon by the applicant are Bui v R [2008] NSWCCA 314, Truong v R [2009] NSWCCA 41 and Thi Lan Nguyen v R [2009] NSWCCA 181.

17 In Bui, the applicant pleaded guilty to a charge of cultivating a quantity (281) of cannabis plants not less than the large commercial quantity by enhanced indoor means pursuant to the Act, s 23(2)(a). The applicant owned the premises. He was born in 1960, had no prior record of relevance and received a full discount of 25 per cent for his plea. Special circumstances were found and one offence was taken into account on a Form 1. He appealed against a sentence of a non-parole period of imprisonment of 3 years with a further parole period of 2 years on the grounds that it was manifestly excessive. The appeal was unsuccessful.

18 In Truong the applicant pleaded guilty to a charge that on 11 January 2007, she hydroponically cultivated a quantity (189) of not less than the commercial quantity of cannabis plants contrary to the Act, s 23(2)(a). The maximum penalty for the offence was 15 years imprisonment. No standard non-parole period was applicable. The applicant was born in Vietnam in 1964. She received a discount of 25 per cent for her plea. She at least took over the enterprise and maintained the activity for profit. The applicant appealed against a sentence of a non-parole period of 18 months with a further term of 2 years on the ground that the sentence was manifestly excessive. The appeal was dismissed. In refusing the appeal, this Court held, at [15]:

“With respect to the sentence imposed statistics from the Judicial Commission which were provided to this Court indicate that the non-parole period, in particular, was at the upper end of the range of sentences usually imposed. However, there is nothing to suggest that the sentence was outside the permissible range. The submission that the sentence was manifestly excessive must be rejected.”

19 In Thi Lan Nguyen the applicant pleaded guilty to cultivating a quantity (172) of cannabis plants not less than the commercial quantity contrary to the Act, s 23(2)(a). The maximum penalty was 15 years imprisonment and there was no standard non-parole period. The applicant was sentenced to a non-parole period of 2 years 6 months with a balance of term of 1 year 6 months. The applicant at least tended the plants and guarded them. She received a 25 per cent discount for the plea. This Court held that the sentence was manifestly excessive and reduced it to a non-parole period of 22 months with a balance of term of 14 months.

20 As is apparent, the cases of Truong and Thi Lan Nguyen were concerned with a lesser offence, the maximum penalty for which was 15 years imprisonment and which did not attract a standard non-parole period. There was no reference to any Form 1 matters in either case.

21 Bui’s case was concerned with the same offence as the applicant, although the number of plants involved was somewhat higher (281). It held that the sentence imposed (of 5 years with a non-parole period of 3 years) was not manifestly excessive. It provides no guidance as to where the upper limits of the sentencing range lie. The standard non-parole period was not applicable, as Bui had pleaded guilty prior to 1 January 2008. There was one matter on a Form 1.

22 In my opinion, no sentencing pattern or range relevant to the offence to which the applicant pleaded guilty is to be discerned from these cases, as the sample is too small and the cases (save to a certain extent in the case of Bui) are not comparable.

23 Similarly, the bare statistics to which the applicant makes reference, insofar as they do not draw from the three cases previously referred to, tell the Court very little and do not appear to be based on truly comparable cases.

24 Implicit in the applicant’s submissions is the concept that as the number of plants in Truong (189) and Thi Lan Nguyen (172) was not much less than in the applicant’s case (202), the applicant’s sentence should be similar to that imposed on Truong and Thi Lan Nguyen. However, this fails to have regard to the fact that the legislature, as a matter of deliberate policy, has drawn a line at the cultivation of 200 plants and provided harsher penalties in respect of the cultivation of plants not less than that number. It is for this Court to implement the directions of the legislature.

25 This Court has held that the standard non-parole period remains a reference point, benchmark or guidepost, when there has been a plea of guilty: R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 per Simpson J at [37]. In R v Knight; R v Biuvanua [2007] NSWCCA 283; 176 A Crim R 338 Howie J stated, at [47]:

“Even after a plea of guilty there must be an appropriate relationship between the standard non-parole period and the objective criminality of the offence regardless of the other matters that may be taken into account by way of mitigation.”

26 As this Court has observed on a number of occasions, the implementation of a relatively high standard non-parole period will lead inevitably to an increase in sentencing for the relevant offence: AJP, R v AD [2005] NSWCCA 208 per Howie J at [43] and Des Rosiers v Regina [2006] NSWCCA 16; 159 A Crim R 549 per Latham J at [36].

27 Sentencing involves a discretionary judgment. There is no single correct sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies: Markarian.

28 In sentencing the applicant, her Honour had regard to the nature of the offence and other objective factors, the maximum penalty, the reference point provided by the standard non-parole period and the applicant’s subjective case. She had taken into account four matters on a Form 1. Her judgment is consistent with the proper exercise of her sentencing discretion. No patent error on her part has been asserted or demonstrated.

Conclusion

29 In my opinion, error has not been established. Nor has it been established that some other sentence, less severe, is warranted in law and should have been passed. Accordingly, whilst I would grant leave to appeal, I would dismiss the appeal.

Orders

30 I propose the following orders:

(1) Leave to appeal granted;

(2) Appeal dismissed.