Nguyen v R

[2008] NSWCCA 322

New South Wales
Court of Criminal Appeal

CITATION:	Nguyen v R [2008] NSWCCA 322
HEARING DATE(S):	8 December 2008
JUDGMENT DATE:	18 December 2008
JUDGMENT OF:	Tobias JA at 11; James J at 34; Price J at 35
DECISION:	(a) Leave to appeal against sentence granted. (b) Appeal against sentence dismissed.
CATCHWORDS:	CRIMINAL LAW – Appeal against sentence – Accumulation of sentences – Discount for plea of guilty – Relevance of strength of prosecution case – Discount for remorse – Whether sentence manifestly excessive – CRIMINAL PRACTICE and PROCEDURE – Submissions after hearing – Submissions without leave – Whether exceptional circumstances
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Drug Misuse and Trafficking Act 1985 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246 Chapman v Caska [2005] NSWCA 113 Dwyer v Commonwealth Bank of Australia (1995) 31 ATR 48 In the matter of an application by the Chief Commissioner of Police (Vic) [2005] HCA 18; (2005) 79 ALJR 881 Kirwan v Cresvale Far East Ltd (In liq) [2002] NSWCA 395; (2002) 44 ACSR 21 Notaras v Waverley City Council [2007] NSWCA 333; (2007) 161 LGERA 230 R v Sutton [2004] NSWCCA 225 R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
PARTIES:	Van Cuong Nguyen Regina
FILE NUMBER(S):	CCA 15226/07
COUNSEL:	A: G Wendler R: P Miller
SOLICITORS:	A: AKN & Associates R: Solicitor for Public Prosecutions
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 2007/00015226
LOWER COURT JUDICIAL OFFICER:	Bennett DCJ
LOWER COURT DATE OF DECISION:	19 March 2008

CCA 15226/07

TOBIAS JA
JAMES J
PRICE J

Thursday 18 December 2008

VAN CUONG NGUYEN v REGINA

Judgment

1 TOBIAS JA: On 31 January 2008 the applicant, Van Cuong Nguyen, pleaded guilty in the District Court at Parramatta before his Honour Judge Williams to an indictment containing the following two counts:

Count 1 : That on 31 May 2007 at Guildford in the State of New South Wales [he] did cultivate a prohibited plant, namely, cannabis plants being not less than the commercial quantity, namely 105 plants;

Count 2 : That on 31 May 2007 at Guildford in the State of New South Wales, [he] did supply a prohibited drug, namely, cannabis leaf, in that he had in his possession 3708.7 g of cannabis leaf which amount exceeds the trafficable quantity of cannabis leaf.

2 The applicant was sentenced by his Honour Judge Bennett SC in the District Court at Parramatta on 19 March 2008. With respect to Count 2 – supply prohibited drug, his Honour imposed a total sentence of three years and four months with a non-parole period of two years and six months commencing on 31 May 2007 and expiring on 30 November 2009. With respect to Count 1 – cultivate commercial quantity of prohibited plant, his Honour imposed a total sentence of five years, with a non-parole period of three years and six months commencing on 30 November 2007 and expiring on 29 May 2011. Accordingly, the overall sentence for both offences was imprisonment for five years and six months with a non-parole period of four years.

3 The sentencing judge also had before him a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) certifying that the applicant had been charged with four related offences in respect of which his Honour imposed fixed periods of imprisonment that were totally subsumed in the sentences imposed with respect to the charges on indictment. Although the applicant originally sought leave to appeal against the sentences so imposed by his Honour with respect to the related offences, that application was ultimately abandoned.

The facts

4 The facts as found by the sentencing judge were as follows:

“The quantity of plants at 105 is 55 greater than the commercial quantity specified for cannabis plants cultivated by enhanced indoor means specified in the Schedule one to the Drug Misuse and Trafficking Act [1985 (NSW)].
The cannabis leaf at 3,708.7 grams is well in excess of the trafficable quantity of 300 grams and is more than three times greater than the indictable quantity specified in that same table.
The facts are summarised in the document tendered by the Crown. Drawing from that summary, on 31 May 2007 at 7am police attended 12 Oxford Street Guildford where the offender was living at the time. The premises were locked and secured. Police announced their office a number of times after which the offender came to the front sliding door. The front door and all of the windows of the premises were fortified with iron bars. The police attempted to communicate with the offender and asked him to open the sliding door but he quickly closed the blinds and disappeared from view. The police ultimately gained entry to the premises through a side door and upon doing so they saw the offender and a female person inside the premises. He was arrested and both he and the female were escorted into the kitchen area of the building where they were seated. He was cautioned and told that the police were there to execute a search warrant. [His wife remained at] the premises throughout the search. He told the police that he was the owner of the property and admitted to them the setting up of the equipment and the growing of the plants that were discovered inside.
The search revealed cannabis growing in two rooms. Room one at the rear of the premises had forty-nine cannabis plants of approximately 700 millimetres height, and there were six lamp shades with associated globes and an exhaust fan and filter attached. In room two, also at the rear of the premises, there were fifty-six cannabis plants of approximately the same height, 700 millimetres, twelve lampshades with associated globes, and there was about five kilograms of cannabis leaf and two exhaust fans with filters attached.
In the laundry the police found a number of chemical fertilisers, $14,750 in Australian currency, twenty-one electrical transformers and a large power board circuit breaker. In the dining and living area documents were found in the name of the offender.
A representative from Integral Energy attended the premises and told the police that the electricity had been bypassed in the roof space of the house. There were a total of 105 cannabis plants seized, 3708.7 grams of loose cannabis, eighteen lampshades, twenty-one electrical transformers, one power board, three exhaust fans and attached filters and $14,750 seized from the premises. It is said that the entire cannabis crop was valued conservatively at $250,000 at street level. This is calculated upon the basis that 105 cannabis plants, all of which were two months from harvest, were valued between $2,000 and $3,000 each.
The offender was interviewed at Parramatta Police Station; he made full and accurate admissions in relation to his possession and cultivation of the cannabis plant and the equipment. He declined to make comment in relation to the stealing of electricity, the possession of the cannabis leaf and the money that was seized.”

The grounds of appeal

5 Three grounds of appeal were pursued. They were as follows:

Ground 1 : The sentencing judge erred by accumulating six months of the cultivation sentence on the supply sentence;

Ground 2 : The sentencing judge erred by applying a 5% discount to the applicant’s plea because of the strength of the prosecution case;

Ground 3 : The sentence for the cultivation offence was manifestly excessive and the total sentence imposed was manifestly excessive.

It is convenient to deal first with Ground 2, then Ground 1 and finally Ground 3.

Ground 2: The sentencing judge erred by applying a 5% discount to the applicant’s plea because of the strength of the prosecution case

6 Under the heading “The Timing of the Pleas” and after noting that the parties had agreed that the applicant should be sentenced upon the basis that he had entered an early plea of guilty, the sentencing judge said:

“As I understand the concession made by the Crown, this will allow him the twenty five percent discount for utility, however as will be made clear when I summarise the facts of this case, the chances of the offender being acquitted at trial are so remote as to be set to one side. The case the Crown had to present was very compelling and I would expect that his conviction would have been inevitable. Accordingly, to the extent that the plea is a reflection of his remorse and contrition the discount to be applied will be only five percent. I will only allow thirty percent overall for the pleas of guilty.”

7 It was submitted that the above remarks demonstrated that when his Honour was considering the utilitarian value of the applicant’s plea, he took into account the inevitability of his being convicted of the subject offences had he defended the charges. It was submitted that it was well established that the strength of the Crown case was an irrelevant factor in determining the utilitarian value of a plea of guilty, although it was relevant to the evaluation of the offender’s remorse and contrition: R v Sutton [2004] NSWCCA 225 at [12].

8 In the present case the sentencing judge made it clear that he proposed to allow the applicant a 25% discount with respect to the utilitarian value of his plea of guilty to each of the charges. His Honour also correctly recognised, that the applicant’s plea was a demonstration of his remorse and contrition. That a plea is a manifestation of remorse or contrition is also well established: R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at 386 [3].

9 The issue before his Honour was whether there should have been a greater discount of 25% to reflect the applicant’s expression of contrition for his involvement in the offences referred to in the pre-sentence report and as reflected in his plea of guilty. It is in that context that, in my view, his Honour referred to the strength of the Crown’s case as militating against any substantial further discount over and above the 25% to reflect the applicant’s remorse and contrition. He thus allowed only a further 5%.

10 His Honour was bound by s 22(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to take into account the fact that the applicant had pleaded guilty. He was further bound by s 21A(3)(i) to take into account as a mitigating factor the remorse shown by the applicant for an offence where he has provided evidence that he has accepted responsibility for his actions. However, as I have indicated, the weight to be placed upon this factor may well be reduced, as it was in the present case, by the strength of the Crown’s case being one where, according to his Honour, the conviction of the applicant would have been inevitable.

11 In my view, it is clear that his Honour only took the strength of the Crown’s case into account as reflecting the weight that he was prepared to attach to any question of remorse and contrition on the applicant’s part. In so doing he allowed a further 5% discount over and above the 25% discount that he had allowed for the utilitarian value of his plea. In fact, his Honour ultimately allowed a discount of 33⅓% to take account of the utilitarian value of the applicant’s plea and the mitigating effect of his expression of contrition.

12 In the foregoing circumstances I cannot detect any error in his Honour’s approach. Ground 2 should therefore be rejected.

Ground 1: The sentencing judge erred by accumulating six months of the cultivation sentence on the supply sentence

13 The sentencing judge accepted the submission of the then counsel for the applicant that there should be a partial accumulation of the sentences in respect of the two offences but allowed only a period of six months. The applicant now submits that the overlap between the two offences was such that, in effect, his Honour has imposed double punishment for what in reality was a single act of cultivation.

14 The foundation for this submission was the rejection by his Honour of the following paragraph in the police Statement of Facts:

“It is the opinion of the Police that although the offender stated that he had been growing the plants for only 3 months, Police would estimate that the offender, had been growing for more than 12 months. Police made this assumption based on indications relating to the large amount of cannabis leaf seized indicating a recent harvest and further suspicion in relation to the $14,750 suggesting that the offender profited from the last Cannabis Harvest.”

15 As to this paragraph, his Honour remarked as follows:

“In the second last paragraph in the summary of facts, the opinion of the police is expressed in terms that from what was found the offender had been growing cannabis for more than twelve months. This opinion is made upon assumptions they identified but in the circumstances there is not sufficient material before me to conclude beyond reasonable doubt that the opinion offered is entirely accurate and I put that matter to one side. In any event the sophistication of the arrangement and the presence of a significant quantity of cannabis leaf, which I infer as the only rational inference to be drawn was a product of this enterprise, elevates this to an objectively grave pattern of offending.”

16 The applicant submitted that the “enterprise” to which his Honour referred in the above remarks, was that of cultivating 105 cannabis plants. The inference, it was submitted, was that the 3,708.7g of cannabis leaf seized by the police were the product of those 105 plants or some of them. This was because his Honour had specifically rejected the suggestion that the applicant had been growing cannabis for more than 12 months.

17 However, in my view that finding was not a rejection of any inference that the applicant had been growing cannabis prior to his commencement to grow the 105 plants. Further, the police Statement of Facts noted that the cannabis plants were only approximately 700mm in height and were two months from harvest. Although they were being hydroponically grown, it is apparent that the plants were relatively immature and, in any event, two months away from being ready to be harvested.

18 There was no evidence that the cannabis leaf seized by the police was the product of the 105 plants, the subject of the first charge. Nor was there any evidence before his Honour that the cannabis leaf in question was some form of detritus from those plants. The applicant had pleaded guilty to the charge of supplying a prohibited drug (being the cannabis leaf) from which it should be inferred that the cannabis leaf was in such a condition as enabled it to be supplied for an illicit purpose. He had also pleaded guilty to the related offence of dealing with property (being cash in the sum of $14,750 found at the premises where the plants were being cultivated) reasonably suspected of being the proceeds of crime.

19 Furthermore, weight must be given to his Honour’s finding that the fact that the cannabis leaf was a product of “this enterprise”, elevated the matter “to an objectively grave pattern of offending”. In these circumstances, I do not regard his Honour’s finding that the cannabis leaf was a product of “this enterprise” as intended as a finding that the cannabis leaf was harvested from the 105 plants at a time when their harvesting was still two months away. In argument his Honour, without demur from the applicant’s then counsel, had said:

“But as I see the facts it [the cannabis leaf] is product from the ongoing cultivation.”

20 In the foregoing circumstances I regard his Honour reference to “this enterprise” as relating to an ongoing enterprise of cultivating cannabis generally, albeit that he was unable to make a finding as to that the period over which that enterprise had been undertaken. The fact that the 105 plants were two months from harvest suggests that the cannabis leaf that was seized may well have come from an earlier harvest rather than from the still-growing plants.

21 The applicant’s case for asserting that the sentencing judge erred by accumulating only six months of the cultivation sentence upon the supply sentence was entirely based upon the submission that his Honour had found that the cannabis leaf was a product of the 105 growing plants. As I am of the opinion that that was not his Honour’s finding, it follows that no error with respect to the extent of accumulation adopted by his Honour has been demonstrated. I would therefore reject this ground of appeal.

Ground 3: The sentence for the cultivation offence was manifestly excessive and the total sentence imposed was manifestly excessive

22 The first count was laid under s 23(2)(a) of the Drug Misuse and Trafficking Act and attracted, relevantly, a maximum penalty of 15 years imprisonment. The second count was laid under ss 25(1) and 29 of that Act and, relevantly, attracted a maximum penalty of ten years imprisonment. As I have indicated, his Honour imposed with respect to Count 1 a sentence of five years imprisonment with a non-parole period of three years and six months and on Count 2 a sentence of three years and four months imprisonment with a non-parole period of two years and six months. As I have also observed, the overall effect of this sentence was one of five years and six months imprisonment with a non-parole period of four years.

23 With respect to the objective gravity of the offences, the sentencing judge considered that they fell somewhere within the middle range of seriousness. In this respect, it had been conceded before his Honour on behalf of the applicant that he would be hard pressed to submit that the objective gravity of the applicant’s offending was lower than middle range whereas the Crown had submitted that its objective gravity was a little above middle range. Given the submissions of both the applicant and the Crown, it was clearly open to his Honour to find that their objective gravity fell “somewhere about the middle range”. I can perceive no error in that finding in the circumstances referred to.

24 The applicant made the following further submissions. First, that the Judicial Commission statistics relating to non-parole periods imposed in commercial quantity cannabis cultivation cases suggested that a sentence of 42 months non-parole was more appropriately described as being within the upper range of sentences, whereas a middle range appeared to be a non-parole period of 18 months. However, this Court has said on numerous occasions that the upper limit of the sentencing discretion in any case is the maximum penalty (which in the present case was 15 years), not the highest penalty revealed in the statistics. The relevant statistics are also suspect in the present case. Those titled “s.23 cultivate by enhanced indoor means prohibited plant (cannabis plant – commercial qty): Term of Sentence – consecutive and non-consecutive terms” only comprise 11 cases over a period of 18 months. I do not regard them as being of any assistance in the present matter.

25 Second, it was submitted that the cultivation of 105 plants did not fall within the upper range of the number of plants sometimes encountered in indoor hydroponic cannabis crops. That may or may not be so, but what is clear is that 105 plants is just over twice the commercial quantity for plants cultivated by enhanced indoor means. Further, the cannabis leaf of 3,708.7g was well in excess of the trafficable quantity of 300g and more than three times greater than the indictable quantity specified in Schedule 1 to the Drug Misuse and Trafficking Act. This being so, it seems to me that it was clearly open to the sentencing judge to conclude that the objective seriousness of the offences was “somewhere about middle range”.

26 Third, it was submitted that the total sentence imposed was manifestly excessive because the cannabis leaf was a product of the 105 growing cannabis plants which were the subject of the cultivation charge and thus, applying totality principles, partial accumulation was not appropriate. I have already rejected this submission under Ground 1 and it need not be considered further. In my opinion the Ground 3 should also be rejected.

The applicant seeks leave to file supplementary submissions with respect to Ground 3

27 On the day following the hearing of the appeal, the Court received an unsolicited document from counsel for the applicant containing supplementary written submissions with respect to Ground 3. As leave to file those submissions had not been sought during or at the conclusion of the hearing, such leave was sought in the document.

28 It is well established, at least in civil appeals, that supplementary written submissions filed after the conclusion of oral argument on the appeal, for which leave has been neither sought nor granted, should be ignored: Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246 at 258 per Mason J; In the matter of an application by the Chief Commissioner of Police (Vic) [2005] HCA 18; (2005) 79 ALJR 881 at 890 [53]-[54] per Kirby J; Dwyer v Commonwealth Bank of Australia (1995) 31 ATR 48; Kirwan v Cresvale Far East Ltd (In liq) [2002] NSWCA 395; (2002) 44 ACSR 21 at [340] per Young CJ in Eq; Chapman v Caska [2005] NSWCA 113 at [19] per Beazley, Giles and Tobias JJA.

29 As Mason J said in Carr and Kirby J in Commissioner of Police, the notion that supplementary submissions can be filed without leave is misconceived and this is so even if the other party to the proceedings consents. As I said in Notaras v Waverley City Council [2007] NSWCA 333; (2007) 161 LGERA 230 at 267 [147], with the agreement of Mason P and Hodgson JA, such conduct should not occur.

30 The time and place to present argument and, if necessary, to seek leave to file supplementary submissions, is during the hearing of the appeal. It is inappropriate to file such submissions after the conclusion of the hearing and to seek the Court’s leave to do so at the same time. Such a practice is to be discouraged and should extend to appeals in criminal matters save in exceptional circumstances.

31 An example of such a circumstance would be where, after judgment was reserved, an authoritative decision of an appellate court directly on point is handed down. Obviously, it should be brought to the Court’s attention and leave sought, which is likely to be granted, to file a supplementary submission explaining how the new decision might affect the outcome of the appeal. In the present case, what appears to be, with respect, an afterthought of counsel does not so qualify.

32 It follows that in my opinion the application by counsel for the applicant to file the supplementary submissions contained in the document provided to the Court should be refused.

Conclusion

33 In my opinion each of the three challenges to the sentences imposed by his Honour should be rejected. I would therefore propose the following orders:

(a) Leave to appeal against sentence granted.

(b) Appeal against sentence dismissed.

34 JAMES J: I agree with Tobias JA

35 PRICE J: I agree with Tobias JA.

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