Nguyen v The Queen
[2020] VSCA 76
•1 April 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0065
| DE VAN NGUYEN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | NIALL JA and CROUCHER AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 March 2020 |
| DATE OF JUDGMENT: | 1 April 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 76 |
| JUDGMENT APPEALED FROM: | DPP v Nguyen (Unreported, County Court of Victoria, Judge Gamble, 24 October 2018) |
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CRIMINAL LAW – Appeal – Sentence – Cultivation of cannabis – Ancillary services – Whether incorrect assessment of role of accused – Whether disparity with sentence of co-offender – Whether sentence manifestly excessive – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S J Tovey | Melasecca Kelly & Zayler |
| For the Respondent | Mr J C J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
NIALL JA:
The applicant was sentenced by a judge of the County Court on a plea of guilty to 12 charges relating to the cultivation of cannabis.[1]
[1]DPP v Nguyen (Unreported, County Court of Victoria, Judge Gamble, 24 October 2018) (‘Reasons’).
Charges 1 to 9 and 12 alleged cultivation simpliciter and relate to assistance the applicant provided in relation to the cultivation of cannabis at 10 premises.[2] Charges 10 and 11 alleged the cultivation of a commercial quantity of cannabis relating to two premises.[3]
[2]Charges 1 to 9 and 12 are contraventions of s 72B of the Drugs, Poisons and Controlled Substances Act 1981 (‘the Act’).
[3]Charges 10 and 11 are contraventions of s 72A of the Act.
He was sentenced as follows:
Charge on Indictment Charge Maximum
imprisonmentSentence
(imprisonment)Cumulation 1 Cultivate Cannabis 15 years 3 years (aggregate)
12 months 2 Cultivate Cannabis 3 Cultivate Cannabis 4 Cultivate Cannabis 5 Cultivate Cannabis 6 Cultivate Cannabis 7 Cultivate Cannabis 8 Cultivate Cannabis 9 Cultivate Cannabis
10
Cultivate Cannabis (Commercial quantity) 25 years 3 years 12 months 11 Cultivate Cannabis (Commercial quantity) 25 years 4 years Base 12 Cultivate Cannabis 15 years 3 years[4] 12 months, part of aggregate sentence with charges 1–9 Total Effective Sentence 6 years’ imprisonment Non-parole period 3 years and 6 months 6AAA Total effective sentence: 8 years’ imprisonment
Non-parole period: 5-and-a-half-years[4]The applicant was sentenced to an aggregate sentence of three years’ imprisonment with respect to charges 1 to 9 and 12.
In order to address the proposed grounds of appeal, it is necessary to say something about the offending.
Charges 1 to 9 and 12
The conduct caught by charges 1 to 9 and 12 related to 10 different buildings at which cannabis was grown hydroponically. The applicant’s role in the cultivation might reasonably be described as the provision of ancillary gardening services.
Essentially, he used his van to collect cannabis waste and associated items from properties for disposal at a municipal tip and, on occasions, delivered hydroponic supplies. As revealed by police surveillance, including telephone intercepts, tracking devices and observation, over an extended period of time, his consistent method of operation was as follows:
(a) The applicant would receive a phone call or text message on his mobile phone from a crop sitter/organiser to arrange a date and time to meet.
(b) On occasions, he would attend a hydroponic supplier to pick up hydroponic supplies in his van.
(c) He would meet the crop sitter/organiser at the pre-arranged date, time and location, often a public car park.
(d) The crop sitter/organiser would take his van to their cannabis crop house, unload the hydroponic supplies and reload the van with cannabis waste.
(e) The applicant remained at the rendezvous point and did not venture to the cannabis crop house.
(f) The crop sitter/organiser would return the van to the applicant who would transport the waste to the tip.
(g) He charged $500 for clients in the western suburbs and $600 for other clients.
(h) The applicant had regular contact with a sole proprietor and director of a hydroponic supplies warehouse in Springvale South.
(i) He would field calls from clients who arranged to drop off cannabis waste at his house.
(j) In his communication with his clients he used code and would correct people who did not do so in an attempt to disguise the subject matter of the transactions and avoid detection.
On the plea, the prosecution did not allege that the applicant entered the properties that were the subject of these charges or that he would have been aware of the quantity of cannabis at the relevant properties.
Charge 10
Charge 10 concerned a property in Archies Creek. On 7 April 2017, police executed a search warrant at the premises at which the applicant and his co-offender Van Hoa Vu (‘Vu’) were located. At the time of the execution of the warrant, the applicant and Vu were unloading bags of Coco Peat (an organic soil commonly used in the cultivation of cannabis crops) and bottles of fertiliser. During a search of the premises, police located a functioning cannabis hydroponic setup within an internal structure. It contained a watering system, bypassed power, high-powered lighting suspended from the ceiling, soil, chemicals and cultivation tools. Internal walls had been erected to create additional rooms for cannabis cultivation. There were 372 cannabis plants with a combined weight of 163.92 kg at the premises. It will be necessary to return to the fate of Vu later in these reasons.
Charge 11
On 23 August 2016, police observed the applicant attending a hydroponic supplies warehouse in Springvale South. He drove to a location in Newborough where he supplied his vehicle to another male person. The vehicle was then tracked to an address in Barton Street, Newborough.
On 11 January 2017, he was again observed attending the hydroponic supplies warehouse and his vehicle was tracked to the Barton Street address. On 6 April 2017, the applicant was observed attending the Barton Street address where he remained for approximately 25 minutes. Four days later, police executed a search warrant at the Barton Street address and located 509 cannabis plants grown hydroponically with a combined weight of 205.11 kg.
Charges 10 and 11 were different from the other charges in a number of material respects. First, they concerned the cultivation of a commercial quantity of cannabis. Second, it was alleged that the applicant had attended both properties and, based on those entries, he knew there was a real and significant chance that each of those properties contained not less than a commercial quantity of cannabis. The prosecution was able to place the applicant in the buildings with the opportunity to observe the scale of those operations.
Reasons for sentence
Having set out the circumstances of the offending and noting that the applicant had agreed to plead guilty at a very early stage, for which he was entitled to a ‘significant discount’ on his sentence on a utilitarian basis,[5] the judge turned to the applicant’s personal circumstances.[6]
[5]Reasons [91].
[6]See Reasons [92]–[101].
The judge noted that the applicant was born in Vietnam in 1960, in impoverished, rural circumstances that had been blighted by the Vietnam War. He arrived in Australia in 1995, via the Philippines. He has supported six children from two marriages, not all of them his biological children. He was the sole carer of four children after the dissolution of his first marriage. All of his children are either tertiary educated or are studying at university.
Although the applicant has a good work history, he found his meagre income inadequate and turned to these ventures to supplement it and support his family. He charged more for disposing illicit waste. A psychologist, Luke Armstrong, noted that the applicant presented with features of a mild intellectual impairment, lacking cognitive flexibility and comprehension. The judge accepted that the applicant had shown remorse but had done so belatedly.[7]
[7]Ibid [107]–[108].
Notwithstanding that the judge had earlier indicated that the offending was at a lower level than other more serious examples of this type of offending, he did record that the offending was ‘very serious.’[8] The reason for that was because the applicant had engaged in systematic criminal conduct for profit, knowing that what he was doing was providing an important service to those who were more heavily involved in the criminal enterprises.[9] Given the amount of money he was able to derive, the judge considered that the applicant must have been aware that the criminals he was assisting were running a lucrative criminal operation and that he was receiving compensation for taking on the risks inherent in the exercise.[10] Further, the judge noted that the offending occurred over a considerable period of time, involved multiple clients and he must have been aware at least that they were business ventures being run for profit.[11]
[8]Ibid [109] and [118].
[9]Ibid [119].
[10]Ibid.
[11]Ibid [120]–[121].
In respect of charges 10 and 11, the judge noted that the offending was clearly more serious and the applicant’s moral culpability higher given his greater knowledge about the size of the crops, which easily surpassed the threshold for a commercial quantity.[12] His use of code when communicating with clients suggests that he understood the conduct was illegal and he wanted to minimise the chance of being caught.[13] He also varied his rates depending on the distance he was required to travel, which suggested a level of care in the conduct of his business; a business which was making money.[14]
[12]Ibid [122].
[13]Ibid [123].
[14]Ibid.
In describing the role played by the applicant, the judge accepted that the applicant was clearly not an architect or organiser of the various criminal enterprises and did not stand to gain any of the profits from the ultimate sale of the cannabis.[15]
[15]Ibid [124].
Nevertheless, the judge did not accept that the applicant’s role could be characterised as being ‘at the lowest end.’[16] The judge found that the applicant played an ‘important role in the overall scheme of things’, including by reducing the risk of other participants being detected by obtaining the supplies from the hydroponic stores and transporting them as well as collecting, transporting, storing and ultimately disposing of the cannabis waste and other associated materials using his own van.[17]
[16]Ibid.
[17]Ibid.
Finally, the judge noted that (as agreed by the parties at the plea) by reason of the immediate sentence of imprisonment imposed in relation to charge 10, the applicant became a serious offender for the purposes of charge 11 and s 6D(a) of the Sentencing Act1991 applied. That obliges the judge to regard the protection of the community as the principal purpose for which the sentence is imposed. However, the judge declined to impose a disproportionate sentence.[18]
[18]Ibid [131].
There are three proposed grounds of appeal.
Ground 1: misunderstanding of role played by applicant
The first proposed ground contends that the judge mischaracterised the role played by the applicant. I have set out the judge’s description of the applicant’s culpability above. As noted, the applicant submitted that his role in the offending should be characterised as being ’at the lowest end’, but the judge determined that the applicant ’played an important role in the overall scheme of things’.[19]
[19]Ibid [124].
The applicant submits that he completed menial tasks, had no connection to the principals, had no proprietary role in the crops, had no financial interest in the outcome of the crops and took extreme risk for limited reward. It is submitted that his role on each relevant occasion necessarily had to be considered as being lower than that of a ‘crop-sitter’. He says that his overall role could not be described as being of great significance or of great value.
In cases such as this, the role played by the offender, by reference to his or her conduct, will be an important factor in sentencing. The nature of the offender’s role depends on the degree of involvement, the opportunity for profit, the awareness of scale and sophistication, and these factors bear on the offender’s culpability. However, an offender’s conduct and role in the overall criminal enterprise should not be reduced to a label for which a particular sentence can be assigned.
Here, the judge correctly focused on the applicant’s conduct and what could properly be discerned about his knowledge of the enterprises. I cannot accept that the judge mischaracterised the applicant’s role or misunderstood the extent of his conduct.
Although the charges relate to 12 separate hydroponic sites, with the exception of the premises caught by charges 10 and 11, the prosecution did not place the applicant inside the premises. This served to reduce his knowledge of the scale of each operation and the duration of his contact with the enterprises. However, his role was an important one which should not be underestimated. Removal of crop waste facilitated the operations and reduced the risk of them being detected. It prevented the unnecessary build-up of waste, enabled the ongoing use of the sites and meant that those persons who operated each site did not need to remove waste from the premises or obtain chemicals and the like from suppliers, which would have heightened the risk of detection.
I would reject ground 1.
Ground 2: parity when compared to Vu
The second proposed ground asserts that principles of parity demanded a greater differential in the sentences imposed on the applicant and Vu in relation to charge 10. The applicant submits that while the sentences imposed on the two offenders were different (four years’ imprisonment for Vu, three years for the applicant) it was not reasonably open to the judge to fail to differentiate further between the applicant and his co-offender in light of their vastly different roles in the offending and vastly different levels of criminality. It is submitted that this failure leaves the applicant with a justifiable sense of grievance.
As noted, Vu was arrested at the Archies Creek address. He pleaded guilty and was sentenced by a Judge of the County Court, Judge Quin, on one charge of cultivating cannabis in not less than a commercial quantity and two charges of negligently dealing with the proceeds of crime. Vu was sentenced to a term of imprisonment of four years in relation to the commercial cultivation charge.[20]
[20]DPP v Vu [2018] VCC 193.
On the plea of the applicant, the judge had a copy of the record of order made by Judge Quin and the prosecution summary of opening contained brief references to Vu. It recorded that Vu had been arrested and during his record of interview had stated:
a. that he is employed as a gardener and rubbish removalist by ‘Dien’, the owner of 93 Archies Creek Road, Archies Creek. VU stated he had been to Archies Creek ‘many times’ but he only goes around ‘cutting grass outside’.
b. that he earns $350 a month for ‘cutting grass’ and extra for collecting the rubbish depending on the amount, but had yet to be paid.
c. he used a key, ‘and I opened it (gate) for him driving the car in’. When asked about whether DE VAN had left the key for VU to open the gate, VU stated, ‘No. To be frank, I don’t want to answer because it might affect another.’
Vu denied organising the applicant to attend the Archies Creek property but admitted helping him to unload the supplies, stating: ‘there was a lot of stuff. He said that he was tired’.
We were informed that the judge did not have before him at the plea hearing a copy of the reasons for sentence of Judge Quin.
On the plea, the prosecutor provided a copy of the record of orders made in respect of Vu by Judge Quin and other co-offenders, Tung Thanh Nguyen and Van Lam Vu, who were sentenced by other judges. The judge enquired whether either the prosecution or the applicant was suggesting that considerations of parity arise in the proceeding. The prosecutor said, ‘no … there would be no reasonable application of that principle.’ His Honour asked directly whether the applicant’s counsel agreed with that and he received an affirmative response.
As noted, the applicant disavowed any suggestion that the sentence imposed on Vu was relevant. That was done with a clear forensic goal in sight. The applicant submitted that his offending warranted a Community Correction Order (‘CCO’) or a combined CCO and term of imprisonment. This latter option would only have been available if the sentence was less than 12 months, not including the 40 days of pre-sentence detention served.[21] That submission would not have been advanced by drawing any comparison to the case of Vu who received a four-year term of imprisonment for the offence.
[21]Sentencing Act 1991 s 44(1).
Given the course of the plea, it would be open to this Court not to entertain this ground of appeal. However, I propose to do so. It must be rejected on its merits.
In her reasons for sentence, Judge Quin identified the conduct of Vu. The applicant summarises that role as follows: he cultivated the crop for a period of seven months, acted as the manager, knew or believed in the existence of a commercial quantity (as opposed to being reckless) and had arranged the attendance of the applicant to deliver hydroponic supplies. Vu received a sentence of four years’ imprisonment for the charge of commercial cultivation.
It may be accepted that Vu’s conduct and knowledge were greater than that of the applicant. However, there was a difference in the sentence imposed. Further, the applicant’s role was by no means negligible, as correctly explained by the judge. He had a prior cultivation charge in 2005 for which he received a Community Based Order without conviction. He was sentenced for cultivation in relation to 12 properties.
The applicant and Vu were in different positions. In relation to charge 10, they performed different roles which rebounded to the advantage of the applicant. The difference in sentence is unremarkable. It does not reveal any error and does not offend the principle of parity. No exact comparison can be undertaken nor unique correlation arrive at.
The applicant has failed to demonstrate, as he must if he is to succeed on a parity ground, that the circumstances compelled a greater degree of differentiation in sentence between the two offenders.
Ground 2 must be rejected.
Ground 3: manifest excess
The third proposed ground contends that the individual sentences, the total effective sentence and the non-parole period were manifestly excessive. The principles that apply to this ground are clear. They focus on the sentence and the applicant has the burden to persuade this Court that the sentence was wholly outside the permissible range having regard to all relevant matters.[22]
[22]See, eg, Maddocks v The Queen [2020] VSCA 47, [47] (Beach and Weinberg JJA); Hogan v The Queen [2017] VSCA 230, [30] (Kyrou and Hansen JJA).
The applicant points to the following matters:
(k) The early plea of guilty, made in light of an arguable defence to some charges;
(l) The low level role played by the applicant in the offences he committed;
(m) The fact that the applicant had no proprietary interest in the cannabis crops and did not reap great financial reward;
(n) The sentence imposed on the co-offender with respect to charge 10;
(o) The existence of a mild intellectual impairment;
(p) The applicant’s reasonable prospects of rehabilitation;
(q) The fact that the applicant’s time in custody would be more difficult due to his lack of English;
(r) The principle of totality; and
(s) The applicant's lack of significant prior criminal history.
It is not suggested that the judge failed to have regard to any of these matters and I have rejected the specific errors embodied in grounds 1 and 2.
The judge imposed an aggregate sentence on charges 1 to 9 and 12. That course was open to him.[23]
[23]Sentencing Act 1991 s 9.
Looked at in isolation, a crop sitter in each building would have had knowledge of the scale and sophistication of the undertaking in that building, and the applicant did not, nevertheless, the applicant serviced a large number of properties, in an orderly and systematic way. His use of code and method of operation highlights his awareness of the nature of the trade and demonstrates a level of forethought.
By taking responsibility for the provision of some hydroponic supplies and taking waste into the open, the applicant assumed risks of detection but also reduced exposure for those inside the premises. That elevates the importance of his offending to the enterprise as a whole.
I have already set out the various aspects of the offending. The scale of the undertaking was a product of the number of premises serviced by the applicant. That is very different to a crop sitter operating on a single site. As the judge observed, it was not necessary for the applicant to have any appreciation of the scale of each site to realise that they were commercial undertakings being run for profit and could afford to pay for his ancillary services.
The aggregate sentence of three years’ imprisonment was well within range.
As the judge correctly observed, charges 10 and 11 were more serious. They involved the cultivation of not less than a commercial quantity of cannabis. Although the evidence did not permit fixing the applicant with knowledge of the precise number and weight of the plants, by his plea, he accepted that he was engaged in cultivation of a commercial quantity. The maximum penalty was 25 years’ imprisonment.
The individual sentences imposed on charges 10 and 11 were open.
The applicant engaged in systematic criminal conduct for profit, knowing that what he was doing was providing an important service to those who were more heavily involved in these criminal enterprises. It covered a considerable period of time and involved assisting multiple clients and criminal operations.
As the judge recognised, the applicant must have been aware at least that the undertakings he supported were business ventures being run for profit, enabling him to charge higher than usual rates for his services.
In respect of the two charges of commercial cultivation, his offending was clearly more serious, and his moral culpability higher given his greater knowledge about the size of the crops. Those crops were very large and the threshold for a commercial quantity was, in each case, easily surpassed.
In a real sense, there was a degree of connection between all of the charges in that the applicant provided similar services to each site. It was important for the judge, when turning to questions of cumulation and concurrency, to sit back and ensure that the total effective sentence was not out of proportion with the overall level of criminality, especially having regard to the obvious common threads. However, that exercise did not permit the judge to lose sight of the fact that the applicant had committed separate offences, which in the case of charges 10 and 11, involved a higher level of involvement and knowledge on his part.
General deterrence and denunciation were very important factors, and there was a risk of them being diluted if the total effective sentence did not mark the degree of premeditation, the number of sites, and in relation to charges 10 and 11, the higher level of involvement. As the respondent correctly submits, the applicant’s work supported the criminal enterprises of a number of different offenders, making his offending more significant and the need for general deterrence greater.
The judge considered that ‘a relatively low non-parole period’ was appropriate.[24] There is no ‘usual’ non-parole period.[25] The non-parole period the judge fixed represents approximately 60% of the total effective sentence and is unremarkable.
[24]Reasons [154].
[25]R v Merritt [2008] VSCA 238, [19] (Vincent, Nettle and Kellam JJA).
In the circumstances, I am unable to conclude that the individual sentences, the total effective sentence and the non-parole period were wholly outside the range. Therefore, I must also reject ground 3.
Conclusion
I would refuse leave to appeal.
Postscript
After the parties were advised that judgment was to be delivered, the applicant applied for leave to file a further submission addressing, in the event that this Court allows the appeal and re-sentences, the impact of COVID–19 on his present conditions of incarceration. In Brown v The Queen, this Court said:
With regard to the COVID-19 pandemic, and the submission put forward on behalf of the applicant in that regard, we readily acknowledge that this is a matter that is certain to come before this Court again in the immediate future. In the absence of any adequate material concerning the impact of the virus upon the Corrections system, as matters stand, and given that the situation is one that is rapidly evolving, we are hesitant to express a general statement of principle regarding how this Court (and others) should deal with this crisis as regards its effect upon relevant sentencing principles. We do accept, however, that the situation is causing additional stress and concern for prisoners and their families, as it is for every member of the community. The extent to which that may be taken into account, if at all, will be a matter to be resolved on the particular facts of any individual case.[26]
[26]Brown v The Queen [2020] VSCA 60, [48] (Priest and Weinberg JJA).
Given that in my view, the application for leave to appeal must be refused, there is no occasion to re-sentence the applicant and no need for this Court to consider fresh evidence. Undoubtedly, the impact of COVID–19 on prisons, like the community in general, is profound.
CROUCHER AJA:
I have had the considerable advantage of reading in draft the reasons for judgment of Niall JA. I agree, essentially for the reasons his Honour gives, that each ground of appeal must be rejected and that leave to appeal should be refused. I wish to add only a few remarks.
First, while I consider the individual sentences, the total effective sentence and the non-parole period to be relatively heavy for a man of 60 whose role might be described as that of a ‘cleaner’, who has only a modest criminal history and who has pleaded guilty at such an early stage, I am not satisfied that any aspect of the sentence is manifestly excessive or in breach of totality.
Secondly, however, to describe the applicant as merely a cleaner is to understate his role and the gravity of his offending in the particular circumstances of this case. As Niall JA points out, the applicant engaged in ‘systematic criminal conduct for profit, knowing that what he was doing was providing an important service to those who were more heavily involved in these criminal enterprises … [over] a considerable period of time [which] involved assisting multiple clients and criminal operations’. Far from misunderstanding the applicant’s role, it is apparent that the sentencing judge was astute to avoid understating his role by virtue of what, at first blush, might seem to be a person with a relatively lowly rank in the pecking order of a commercial cultivation operation. Put another way, it is clear that the judge, correctly, sentenced the applicant on the basis that his role was a good deal more culpable and important than that of a mere cleaner.
Finally, on the question of alleged insufficient disparity, the judge might have imposed a lesser sentence on the offence of commercial cultivation in Charge 10 (three years’ imprisonment) in view of the sentence imposed on Mr Vu for a like offence concerning the same premises (four years’ imprisonment). I think Mr Vu did have a substantially more culpable role than the applicant, and over a considerably longer period of time. But the applicant also had a prior appearance for cultivation of cannabis, for which he received a CCO without conviction. Further, as already discussed, the applicant’s role was not as minor as it might seem at first. In the end, like Niall JA, I am not satisfied that the judge was compelled, on a parity basis, to impose a lesser sentence on this particular offence or, for that matter, to impose a lower level of cumulation of this sentence upon the base sentence.
Postscript
I also agree with Niall JA’s remarks with respect to the applicant’s additional submission concerning COVID-19.
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