Nguyen v The Queen

[2019] NSWCCA 131

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Nguyen v R [2019] NSWCCA 131
Hearing dates:	3 June 2019
Decision date:	21 June 2019
Before:	Basten JA at [1]; Hamill J at [2]; Lonergan J at [32]
Decision:	(1)   Application for leave to appeal granted. (2)   Appeal allowed. (3)   The sentence imposed in the District Court is quashed and in lieu thereof the applicant is sentenced to an aggregate sentence of 5 years with a non-parole period of 3 years and 2 months commencing on 8 September 2016 and expiring on 7 November 2019. The total sentence (and balance of term) will expire on 7 September 2021. (4)   The applicant will be eligible for release to parole at the expiration of the non-parole period.
Catchwords:	CRIMINAL LAW – sentencing – drug offences – aggregate sentencing – where Judge told of wrong maximum penalty – where Judge told of standard non-parole period that did not exist – error not picked up by applicant – error raised by counsel for respondent – error conceded and established – necessary to re-sentence – lesser aggregate sentence warranted   CRIMINAL LAW – other grounds of appeal – grounds rejected – whether Judge erred in not providing 25% discount for plea – whether Judge erred in assessment of objective criminality – where no evidence available to establish precise role of offender
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 53, 53A, 54B and 54D Drug Misuse and Trafficking Act 1985 (NSW), s 33(2)(b)
Cases Cited:	Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 294 R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 PG v R [2017] NSWCCA 179 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 294 R v Cardoso [2003] NSWCCA 15
Category:	Principal judgment
Parties:	Ngoc Canh Nguyen (Applicant) Regina (Respondent)
Representation:	Counsel: R Steward (Applicant) J Roy (Respondent)   Solicitors: LN Legal (Applicant) Director of Public Prosecutions (Respondent)
File Number(s):	2016/00270498
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 29 June 2018 Before: Noman DCJ File Number(s): 2016/00270498

Judgment

1. BASTEN JA: I agree with Hamill J.

2. HAMILL J: Ngoc Canh Nguyen seeks leave to appeal against the sentence imposed by her Honour Judge Noman SC in the District Court on 29 June 2018. The applicant was sentenced in relation to two drug offences and one offence of recklessly dealing with the proceeds of crime. The drug offences were knowingly taking part in the cultivation of a large commercial quantity of cannabis plants and supplying a commercial quantity of cannabis leaf. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing Judge imposed an aggregate sentence of 5 years and 9 months imprisonment with a non-parole period of 3 years and 9 months. The sentence was ordered to commence on 8 September 2016 and the applicant will be eligible for release to parole on 5 June 2020.

3. The applicant filed a notice of appeal in which four grounds were identified. Those grounds were: –

1. The sentencing Judge erred in reducing the discount for the offender's plea to 20%.

2. The sentencing Judge providing inadequate and insufficient reasons for the sentences imposed for sequences 5 and 7.

3. The evidence provided an insufficient basis for the findings of objective seriousness for sequences 5 and 7.

4. The sentence was manifestly excessive.

4. For reasons I will presently articulate, each of those grounds of appeal should be rejected.

Amended Notice of Appeal and Additional Ground

5. In responding to the applicant’s written submissions, counsel for the respondent identified a significant error in the sentencing proceedings. That error concerned the maximum penalty and standard non-parole period applicable to the third offence which was described as "sequence 7" and involved the allegation of supplying a commercial quantity of cannabis leaf. The prosecution’s sentence summary, part of Exhibit A in the District Court, indicated that this offence carried a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years. The judgment on sentence proceeded on the assumption that those penalties, each of which is a significant statutory guidepost to the proper exercise of the sentencing discretion, were correct. The applicant’s written submissions to this Court were also predicated on the correctness of those penalties.

6. However, as counsel for the respondent pointed out, s 33(2)(b) of the Drug Misuse and Trafficking Act 1985 (NSW) provides that where the drug involved is cannabis the maximum penalty is 15 years (not 20 years). Item 16 in the table of standard non-parole periods following s 54D of the Crimes (Sentencing Procedure) Act 1999 excludes offences relating to cannabis leaf. There is no applicable standard non-parole period for an offence of supplying a commercial quantity of cannabis.

7. The respondent did not object to leave being granted so that the applicant could file an additional ground of appeal encompassing this error. Further, the respondent conceded that the appeal must be upheld on the basis of the additional ground and that the Court was required to exercise the sentencing discretion afresh in accordance with the High Court’s decision in Kentwell v The Queen. [1] The amended notice of appeal added the following ground:

(5)   The sentencing Judge erred in applying the wrong maximum penalty for sequence 7.

1. Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

8. The respondent’s concession is correct and the ground of appeal must be upheld. Even though the application for leave to appeal against sentence relates to an aggregate sentence and there is no appeal against the individual putative sentences indicated by the sentencing Judge pursuant to s 53A(2)(b), the reference to a maximum penalty which is substantially higher than that permitted under the law and the application of a standard non-parole period to an offence to which no standard non-parole period applies, constitutes an error in the sentencing proceedings which necessarily requires intervention by this Court. This error having been established, it is necessary for the Court to exercise the sentencing discretion afresh. Further, in light of that error, it is appropriate to deal with grounds 1-3 relatively briefly and unnecessary to consider ground 4. Before turning to those grounds I will set out the facts and circumstances of the offences and other matters relevant to sentence.

The facts relevant to sentence

9. The offences for which the applicant was sentenced were as follows: –

1. Knowingly take part in the cultivation of 506 prohibited plants by enhanced indoor means, a quantity which was not less than the large commercial quantity applicable to that prohibited plant.

2. Deal with the proceeds of crime, namely $44,000, reckless as to whether it was the proceeds of crime.

3. Supply a prohibited drug, namely 54.45 kilograms of cannabis leaf, being an amount which was not less than the commercial quantity applicable to that prohibited drug.

10. The sentencing Judge described the facts of the offences as follows:

The offender came to the attention of police on 25 August 2016 after he attended premises under surveillance based on the belief it was being used as a hydroponic house. Police then conducted surveillance of the offender. He was observed to attend his home and three other premises between 25 August and 5 September 2016. These premises were later discovered to be premises used to cultivate cannabis. Each of the three premises when searched had a hydroponic cultivation in progress, cultivation equipment, and cannabis leaf. The offender was arrested on 8 September close to one of the drug premises. The offender's home was searched and $44,000 was found. This supports the proceeds of crime offence.

The South Street premises were searched. There were four rooms being used for cultivation, a room containing leaf and equipment, and a hallway with equipment. There were 164 plants and 4.845 kilograms of cannabis leaf.

The Torrington Road premises had plants and equipment in four rooms, leaf in two rooms, and equipment in three other rooms. The electricity meter was bypassed. There were 174 plants and 49.233 kilograms of cannabis leaf.

The Beronga Street premises had plants and equipment in seven rooms and a zip lock bag of leaf in one room. The electricity meter was bypassed. There were 168 plants and 371.1 grams of cannabis leaf.

In total across the three premises there were 506 plants being cultivated and 54.45 kilograms of cannabis leaf.

The offender was linked with the premises through surveillance. His DNA was located at South Street and his fingerprints at the other premises. He had keys to all three. The offender was engaged in the cultivation offence between 25 August and 5 September. He is charged with knowingly take part based on his known involvement. Consistent with the facts, I will take into account the definition in s 6 of the Drug (Misuse and Trafficking) Act as to what constitutes taking part.

I take into account his role of regularly attending each residence to undertake unspecified tasks relating to maintaining the cultivation. The plants were cultivated in three separate premises in a sophisticated setup with multiple rooms and equipment. The amount cultivated, at 506 plants, is well over the 200 plants required for the offence. The amount of cannabis leaf is 54.45 kilograms. This falls within the range of 25 kilograms to 100 kilograms as it applies to the commercial offence. The leaf was located within premises used for cultivation. The evidence does not support that the leaf was harvested from the plants then under cultivation. The cannabis leaf that was located was clearly not disseminated into the community.

There was no evidence that anyone else was involved with the premises, only that the offender was observed to attend the premises. The offender said that he had the keys. I am uncertain as to whether others were involved. There is no evidence supportive of anyone else being involved or performing any tasks during the period of surveillance. I accept generally that others may have been involved but I cannot refer to any specifics of what anyone else did in either the cultivation or supply. I accept that the offender was involved in each of the drug offences undoubtedly for benefit.

11. The agreed facts tendered on sentence were somewhat more expansive but the summary provided by the sentencing Judge was not challenged and accurately sets out the circumstances of the applicant’s offending.

12. The applicant was born in November 1992 and was 23 years of age at the time of the offences. A psychologist’s report was tendered on his behalf and it set out his family history. He was born in "North Vietnam", lived a simple life and described a good family life and upbringing. However, his father died when he was just eight years of age and he had "no one to support [him] or help [him] grow up". His mother was busy with other siblings and had little time for him. His family remained in Vietnam but Mr Nguyen came to Australia on a student visa when he was 21 years of age. He lived in Melbourne for a couple of years and then spent about six months working in a strawberry farm in Queensland. He came to Sydney in November 2015. At the time of the offending the applicant lived with his partner who remains supportive of him. However she is soon to return to Vietnam because her visa is to expire.

13. The applicant told the psychologist that he had no family or friends when he came to live in Melbourne and began attending the casino and gambling on a daily basis. He said that he borrowed money from gangsters and it was in this context that he came to be involved with criminals engaged in the drug business. The sentencing Judge was appropriately circumspect in relation to the self-serving aspects of the account provided to the psychologist. Noman DCJ said that she would take its contents into account in terms of the general background material but that she had considerable reservation in accepting his explanation for the offence in the absence of sworn evidence. Her Honour took a similar view of a letter written by the applicant to the Court. In that letter the applicant indicated that he was sorry for his offending and that his time in gaol has been "the biggest lesson of my life”. The sentencing Judge indicated that the applicant's prospects of rehabilitation and likelihood that he would reoffend were difficult to gauge because little was known beyond the contents of the report and his letter to the Court.

Ground 1: it is submitted that the judge erred in reducing the discount for the offender's plea to 20%

14. The applicant pleaded guilty when his case was still before the Local Court. However, there were many months between the date the applicant was charged and the date he entered his plea. The sentencing Judge received no explanation for the period of delay between charge and the entering of the plea of guilty prior to commencing to deliver her judgment on sentence. Part way through the delivery of that judgment, her Honour indicated an intention to provide the applicant with a discount of 20% for the plea of guilty. A little later, while her Honour was still delivering her reasons, the applicant's lawyer attempted to explain the reasons for the delay in the entering of the plea. On that explanation, it seems that the delay was not the fault of the applicant and that, due to the pressure of work, the prosecuting authority had delayed in settling or drafting an agreed set of facts. Having heard what the applicant's lawyer had to say, the sentencing Judge maintained the view that the applicant’s discount for the utilitarian value of the plea should be one of 20%.

15. The ground of appeal, as framed in the notice of appeal cannot be accepted. The first problem with the ground is that it assumes that there is some particular or automatic entitlement to a discount of 25%. At the time of these sentencing proceedings, that was not the case. [2] None of the cases that applied to the sentencing proceedings indicated that an applicant who pleads guilty in the Local Court is automatically entitled to a discount of 25%. Accordingly, it is not correct to describe the Judge’s approach as “reducing” the discount for the applicant's plea of guilty.

    2. Cf, for example, R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 294; R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1.

16. It was open to the sentencing Judge, in assessing the utilitarian value of the plea, to arrive at a discount of 20%.

17. However, because the applicant must be resentenced it is for this Court to determine the appropriate discounts to be applied to the individual sentences or, if the Court imposes an aggregate sentence, the indicative sentences for each count. [3]

Ground 2: the sentencing judge providing inadequate and insufficient reasons for the sentences imposed for sequences 5 and 7

Ground 3: the evidence provided an insufficient basis for the findings of objective seriousness for sequences 5 and 7

3. PG v R [2017] NSWCCA 179.

18. These grounds are conveniently dealt with together. The thrust of the grounds is that the sentencing Judge erred in coming to her conclusion as to the objective gravity of the offences because very little was known of the precise acts undertaken by the applicant. It is true that the statement of facts did not identify with any particularity precisely what the applicant's role was in the large commercial cultivation or the commercial supply. No doubt that is because neither the investigating police nor the prosecuting authority had any particular information or insight into how the criminal enterprise was being carried out and precisely what role the applicant played.

19. All that the police and prosecuting authorities knew was that the applicant was observed at the premises on a number of occasions, that a number of items found at the premises were identified with the applicant by forensic evidence and that the applicant had a key to the premises where the plants were being grown and the leaf was located. The applicant did not provide any explanation as to his role. He generally denied any criminality when interviewed shortly after his arrest on 8 September 2016. Both DNA and fingerprints matching the applicant were located at the various premises. There was no explanation as to how this forensic evidence came to be located where it was. The applicant did not give evidence in the sentencing proceedings and his letter to the Court did not identify precisely what he did in connection with the cultivation and supply.

20. As the High Court said in the case of Olbrich[4] :

13. We do not accept that the identification of the precise nature of the accused's involvement in an act of importation of prohibited imports is an essential aspect of the sentencing process.

14. It is understandable that, in order to promote consistency in sentencing, appellate courts, when expressing views about sentences for drug offences, have sometimes categorised the role of an offender, where that is known, in a scheme of importation or distribution. Similarly, sentencing judges who are dealing with several co-offenders may consider such categorisation relevant in differentiating between individuals. However, the utility of such an exercise is necessarily limited by the extent to which the material facts are known. What may be a convenient shorthand method of describing the facts of particular cases should not be elevated to an essential task to be undertaken in every case, regardless of whether that is possible or appropriate.

15. In the present case, the precise nature of the involvement of the respondent in the act of importation was known: at least in the sense that it was known that he had brought the drugs into Australia. He was the importer. But if, as the Court of Criminal Appeal said, the course of events prior to or subsequent to the actual act of importation is relevant and necessary information, it may be accepted that little was known to the primary judge of those matters apart from what the respondent said in evidence. Was the primary judge obliged to inquire about them? If there was no evidence about those events, was the primary judge bound to make some assumptions about them that were favourable to the accused?

16. There is a very practical reason for concluding that a sentencing judge is not obliged to inquire about the course of events before or after an importation of drugs. Very often prosecuting authorities (and a sentencing judge) will have only the most limited and imperfect information about how it was that the accused person came to commit an offence for which he or she stands for sentence. Especially is that so where the accused has pleaded guilty and where the offence which the offender admits is one which had its genesis outside this country. Very often then it will not be possible to say, with any certainty, what exactly was done or intended by a person apprehended in the act of importing narcotics into Australia.

4. The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (per Gleeson CJ, Gaudron, Hayne and Callinan JJ).

21. Contrary to the applicant’s submissions, there is no relevant distinction between the circumstances confronting the sentencing Judge in the present case and those which arose in Olbrich.  One distinction was that Mr Olbrich gave evidence.  However, the sentencing Judge rejected that evidence.  Accordingly, the case proceeded on the basis of an agreed statement of facts which was relatively devoid of detail as to the precise acts and involvement of the offender other than the fact that he was caught importing the drug.  The same applied to the cultivate and supply offences to which the applicant pleaded guilty.    

21. There was no evidence upon which the sentencing Judge could make particular findings as to the applicant's role or involvement. Contrary to the submissions made on the applicant’s behalf, this did not mean that the applicant was to be sentenced on the basis that his objective criminality was at the bottom end of the putative “range”. The quantity of cannabis involved, a matter which must have been known to the applicant given his attendance at the premises, the frequency of his visits to those premises and his possession of more than $40,000 in cash which was clearly not the proceeds of his strawberry picking activities as he alleged to the police, was sufficient to enable her Honour to conclude, as she did, that the applicant's involvement in those offences was in the middle of the range of objective seriousness.

22. I would reject both grounds 2 and 3.

Ground 5: maximum penalty and standard non-parole period

24. As I have indicated, the preliminary matter raised fairly and properly by counsel for the respondent in her helpful written submissions gives rise to a ground of appeal which must succeed. The sentencing Judge was led into error by the parties erroneously indicating that the maximum penalty was 20 years for sequence 7 whereas it was in fact 15 years. As importantly, her Honour operated on the assumption that there was a standard non-parole period of 10 years for that offence based on what she was told by the parties, whereas there was no standard non-parole period applicable to sequence 7 at all.

25. The ground of appeal based on the respondent’s concession must be upheld. Accordingly it is necessary to resentence.

Resentencing

26. Like the sentencing Judge, I take the view that it is appropriate to impose an aggregate sentence pursuant to a 53A of the Crimes (Sentencing Procedure) Act. I have considered the maximum penalty and standard non-parole period applicable to the offence of cultivation. Like the sentencing Judge, it is difficult to come to any conclusion other than that the offence falls somewhere around the mid-range of objective seriousness. I have also taken into account the maximum penalty of 10 years applicable to the proceeds offence and 15 years applicable to the commercial supply. Obviously the offences are serious and, as the sentencing Judge observed, general deterrence is an important consideration when sentencing in cases involving commercial supply and cultivation of illegal drugs.

27. There is very little to explain the applicant's involvement in the offence and it is difficult to give his self-serving statement to the psychologist very much weight. However, he is still a young man (now aged 25) and he has no prior offences recorded in Australia. I accept the sentencing Judge's unchallenged finding that his limited understanding of English and lack of family support in this country makes his time in custody quite difficult. Those factors also militate in favour of some extension to the period of parole to assist him in re-entering the community. This was the applicant’s first gaol sentence. I would adopt the approach taken by the sentencing Judge and make a finding of special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act. I will make a substantial adjustment to the indicative non-parole period for sequence 5 and the aggregate non-parole period will be around 63% of the aggregate sentence.

28. In view of the fact that the plea of guilty was entered in the Local Court and in the absence of evidence that any delay in that Court was caused the applicant himself, I would apply a discount of 25% to reflect the applicant’s plea of guilty. I accept that the evidence on this issue ought to have been clearer and certainly should not have been raised in the course of her Honour delivering judgment. Even so, on the limited information available, there is no reason that the applicant should not have the benefit of a reduction in sentence at the top of the range contemplated in the guideline judgment in Thomson. [5] This is not to suggest that there is some entitlement at a common law to such a discount. [6]

    5. R v Thomson at [152]-[155] and cf R v Cardoso [2003] NSWCCA 15 at [21].

    6. Under subsequent amendments to the Crimes (Sentencing Procedure) Act, a discount of 25% applies whenever the plea is entered in the Local Court in a matter dealt with on indictment: s 25D(2)(a).

29. For the purpose of s 53A(2)(b) I indicate the following individual sentences that would have been imposed but for the imposition of an aggregate sentence.

1. Sequence 5, knowingly taking part in the cultivation of not less than the large commercial quantity of cannabis plants, I would commence with a sentence of 6 years and discount that sentence by 25%. This results in a sentence of 4½ years. For the purpose of indicating a non-parole period pursuant to 54B(4) I indicate a non-parole period of around 2 years and 8 months. [7]

2. Sequence 6, recklessly dealing with the proceeds of crime I would commence with a sentence of 10 months, reduced by 25%, resulting in a sentence of 7½ months.

3. Sequence 7, supplying not less than a commercial quantity of cannabis leaf, I would commence with a sentence of 4½ years, reduced by 25%, resulting in a sentence of 3 years and 4½ months.

   7. When imposing an aggregate sentence, section 54B(4) requires the Court to indicate a non-parole period for any individual offence that is subject to a standard non-parole period.

30. Because an aggregate sentence is being imposed, it is not necessary to descend into detail in relation to the extent of any accumulation or concurrency that would apply if an aggregate sentence is not imposed. However, in determining the aggregate sentence, I have taken into account the fact that the three offences were committed as part of the same criminal enterprise. I would impose an aggregate sentence of 5 years with an aggregate non-parole period of 3 years and 2 months. The sentence is to commence on 8 September 2016 and the non-parole period will expire on 7 November 2019.

31. Accordingly the orders I favour are as follows:

1. Application for leave to appeal granted.

2. Appeal allowed.

3. The sentence imposed in the District Court is quashed and in lieu thereof the applicant is sentenced to an aggregate sentence of 5 years with a non-parole period of 3 years and 2 months commencing on 8 September 2016 and expiring on 7 November 2019. The total sentence (and balance of term) will expire on 7 September 2021.

4. The applicant will be eligible for release to parole at the expiration of the non-parole period.

32. LONERGAN J: I agree with Hamill J.

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Endnotes

Amendments

21 June 2019 - Expiration date of non-parole period amended.

Decision last updated: 21 June 2019