Nguyen v the Queen
[2016] VSCA 332
•19 December 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0176
| QUY NGUYEN |
| V |
| THE QUEEN |
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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| JUDGES: | SANTAMARIA JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 19 December 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 332 |
| JUDGMENT APPEALED FROM: | DPP v Nguyen [2016] VCC 1148 (Judge Mullaly) |
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CRIMINAL LAW – Application for leave to appeal – Sentence appeal – Cultivating a narcotic plant (commercial quantity) contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981 – Theft contrary to s 74 of the Crimes Act 1958 – Whether sentence manifestly excessive – Leave to appeal granted.
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| APPEARANCES: | Counsel | Solicitors |
| No appearances. |
SANTAMARIA JA:
Introduction
On 3 August 2016, the applicant, now aged 22, pleaded guilty in the County Court to charges arising from the cultivation of cannabis in a house in Yarram.
The applicant was sentenced on 8 August 2016 as follows:
Charge on the indictment Offence Maximum Sentence 1 Cultivating a narcotic plant (commercial quantity) contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981 25 years Aggregate sentence of 3 years and 3 months’ imprisonment 2 Theft contrary to s 74 of the Crimes Act 1958 10 years Sentence: 3 years and 3 months’ imprisonment Non-parole period: 2 years’ imprisonment Pre-sentence detention declaration: 260 days Section 6AAA statement: 4 years and 3 months’ imprisonment with a non-parole period of 3 years Other relevant orders: Forfeiture order (all drugs and instruments) and compensation order in the sum of $28,534.47 payable to Red Energy Pty Ltd.[1] [1]The amount of the forfeiture order represents the costs of the stolen electricity together with the costs incurred in calculating the loss.
The applicant now seeks leave to appeal his sentence.
Circumstances of the offending
On 23 November 2015, police executed a search warrant at a property in Yarram and discovered a cannabis grow house. There were 307 plants at various stages of development located on the premises, with a total weight of the plants being 77.87 kilograms. This is just over three times the commercial quantity (charge 1).
The property contained both a house and a large rear shed. The shed had been converted to grow cannabis, it had internal rooms constructed for cannabis production. There were 11 rooms in the house, that is, the whole house, that were dedicated to cannabis production.
The cultivation methods were sophisticated. There was lighting installed to allow the plants to be grown indoors and kept out of sight of the public. The house had been closed up so people could not see in. Power had been bypassed to allow for higher volumes of electricity to be consumed without detection or cost. The amount of electricity stolen was estimated to be $27,079.76 (charge 2). There were transformers, a timer, reflectors and a pulley system. These items indicated that there were significant resources being expended and a determination to grow large quantities of cannabis for profit.
During the search of the premises, the applicant was found lying under covers on a mattress in the kitchen area. He was arrested and cautioned. He was conveyed to the Sale Police Station and interviewed in the presence of a Vietnamese interpreter and provided a no comment interview. He was charged and remanded in custody.
The applicant was the ‘crop-sitter’ of the cannabis found on the property. He undertook this role for approximately two and a half months. He would stay at the property from time to time during that period and would water and tend to the cannabis plants. The applicant came to do this work after meeting a man at the Footscray market who offered him work for $300 per week. For his role as crop-sitter, the applicant received four payments of $300, which were put in a letterbox at the Yarram property. There was no evidence that he had any commercial interest in the sale of the cannabis that was being grown, other than the weekly payment of $300.
Personal circumstances of the applicant
Mr Nguyen was 21 at the time of the offending. He was born in Vietnam and came to Australia in 2012 on a student visa. He came to Australia after completing high school and intended to do a business administration course. After arriving in Australia, he undertook some English language, business and hospitality courses. While in Australia, the applicant was employed doing odd jobs, mainly at farms. It was a condition of his visa that he enrol in a course of study, however on 10 November 2015, his student visa was cancelled as a result of lack of course participation and because he had been charged with criminal offences.
The applicant had no prior convictions, however he was arrested in August 2014 for possession of 27 g of cannabis and possession of hydroponic equipment stored in a shed. At the time of sentence, that matter had not yet been finalised in the Magistrates’ Court. Until his arrival in Australia and becoming involved in these matters, the applicant was a person of good character.
The applicant’s parents and two siblings are in Vietnam. The sentencing judge accepted that the applicant’s English is limited and that this will make prison more difficult for him. He also accepted that imprisonment will be harder for the applicant due to the lack of family support in Australia.
The sentencing judge took into account that while the applicant was on remand, he participated in some courses run by the Box Hill Institute, an English as a second language course, a mathematics course and an IT course.
The applicant pleaded guilty and the sentencing judge accepted this was a sign of remorse. The applicant will be deported to Vietnam once he completes his sentence.
Submissions of the applicant
The applicant seeks leave to appeal his sentence, on a single ground, namely:
The aggregate sentence imposed was manifestly excessive in view of the objective seriousness of the offending. In particular, that the applicant’s role was confined to minding the crops.
The applicant submitted that the sentence imposed was more in line with current sentencing practices for offending where the involvement in the cultivation operation was in the mid-range level, that is it involved some degree of organisation on the part of the offender.
The applicant referred to the case of Nam Son Nguyen v The Queen,[2] in which the Court of Appeal considered the current sentencing practices for offending involving the cultivation of a commercial quantity (cannabis), and decided that the range of sentences for mid-category offending should be uplifted and substantially expanded.[3] However, the applicant submitted that although Nam Son Nguyen decided that there was a need for higher sentences for mid-range offending, the decision also states that the ‘uplifted range should not include sentences that have previously been reserved for less culpable offenders such as crop sitters falling towards the upper end of the lowest category’.[4]
[2][2016] VSCA 198 (‘Nam Son Nguyen’).
[3]Ibid [152] (Redlich JA), [157] (Tate JA), [23] (Whelan JA).
[4]Ibid [152] (Redlich JA).
The applicant referred to the Sentencing Advisory Council’s (‘the SAC’) report titled ‘Major Drug Offences — Current Sentencing Practices’ (‘the SAC Report’),[5] in which the SAC identified two clusters for relevant offending. The profile of the offenders in the first cluster included that they were house-sitters or had ancillary roles and were younger offenders, the offending was for a relatively short period of time (less than 3 months) and the offenders had less of a likelihood of prior convictions.[6] The median total effective term of imprisonment for this cluster was two years. The profile of the offenders in the second cluster included that they had a principal/proprietor role, the offending was over a longer period of time (3 months or over) and involved older offenders who were more likely to have a history of prior offending. The median total effective term of imprisonment for the second cluster was 3 years.
[5]Emma O’Neil and Dennis Byles, ‘Major Drug Offences — Current Sentencing Practices’ (Report, Sentencing Advisory Council, March 2015).
[6]Ibid 24 [4.34].
The applicant referred and summarised a number of cases relevant to the same offence and the applicant’s offending, including Doan v The Queen,[7] Hung Truong Nguyen v The Queen,[8] Duc Minh Nguyen v The Queen,[9] Pham v The Queen,[10] Khoa v The Queen[11] and Nam Son Nguyen v The Queen,[12] and submitted that measured against these cases, the applicant was sentenced more in line with a person who was a principal or proprietor at mid-level, given the analysis for this type of offending in Nam Son Nguyen. The applicant submitted that when the applicant’s sentence is compared to those cases, it is wholly outside the range of sentences available, in particular regarding the applicants youth, his lack of prior convictions, his early guilty plea, his prospects of rehabilitation and the burden of imprisonment given his limited English and lack of social supports.
Respondent’s submissions
[7][2010] VSCA 250.
[8](2010) 208 A Crim R 464.
[9][2010] VSCA 244.
[10][2013] VSCA 169.
[11][2015] VSCA 80.
[12][2016] VSCA 198 (‘Nam Son Nguyen’).
The respondent submitted that the ground of manifest excess could only succeed where the sentence imposed was wholly outside the range of sentencing options available. The respondent said that the total effective sentence and non-parole period were within an appropriate range and it could not be said that ‘something has gone obviously, plainly or badly wrong in the exercise of the sentencing discretion’.[13]
[13]Ayol v The Queen [2014] VSCA 151 [30] (Maxwell P).
The respondent accepts that the applicant was a crop-sitter, not a proprietor, and therefore fell to be sentenced as a low range offender, however the respondent submitted that the size of the crop put his offending at the upper end of the range. The respondent further submitted that the theft of electricity (valued at $27,079.76) was a significant sum and by the plea of guilty was an acceptance of responsibility for an important function of the set-up. The respondent referred to the sentencing judge’s remarks that ‘this was a significant operation worth a large amount of money, and the crop-sitter plays an important role’.[14]
[14]Sentencing Remarks [8].
The respondent referred to Nam Son Nguyen where this Court considered that the role in the cultivation of the person being sentenced will inform into which category of seriousness they fall into.[15] The respondent submitted that the sentence imposed reflected the fact that he was a crop-sitter, who had cultivated a sizeable crop for a period of approximately two and a half months and had been paid for his efforts.
[15]Nam Son Nguyen [2016] VSCA 198 [49].
The respondent accepted the findings of the SAC Report and submitted that while the sentence imposed on the applicant exceeded the median for cluster 1 offences, the longest term of imprisonment on a cluster 1 offender was 4 years and 3 months, which was significantly longer than what was imposed on the applicant. The respondent said that the sentences for cluster 2 extend up to 6 years and 9 months and it was the more serious offenders for which the Court of Appeal was seeking to increase current sentences.[16] The respondent submitted that the present sentence was not inconsistent with that imposed on other crop-sitters tending to cannabis crops of a similar size and gave the single example of Pham v The Queen,[17] where the applicant was re-sentenced to 2 years and 9 months.
[16]The respondent referred to Nam Son Nguyen [2016] VSCA 198 [125].
[17][2013] VSCA 80.
The respondent submitted that the sentencing judge took into account the importance of general deterrence, as well as the youth of the applicant, his rehabilitation, his lack of priors, his early plea of guilty and that he would find prison to be more onerous than an English speaker with social supports. The respondent submitted that the total effective sentence and non-parole period demonstrate sound discretionary judgment which took into consideration all of the relevant factors put before the sentencing judge.
Further submissions of the parties
On 16 November 2016, the Court of Appeal published Kieawkaew v The Queen,[18] in which the applicant was initially sentenced to 3 years’ imprisonment for cultivating cannabis and the Court reduced her sentence on the basis of manifest excess to 2 years and 6 months. The applicant in Kieawkaew was described as more than a ‘crop sitter’[19] and was re-sentenced on the basis that the sentences for mid‑range offending showed a clear practice of sentences of less than 3 years’ imprisonment being imposed. The Court stated that the case of Nam Son Nguyen did not apply to the applicant in Kieawkaew as she was sentenced one month before Nam Son Nguyen was published.
[18][2016] VSCA 269 (‘Kieawkaew’).
[19]Ibid [64].
Following the publication of Kieawkaew the Court requested further submissions from the parties in light of this decision, focusing in particular on:
(a) The sentences for cultivating cannabis outlined in [60]–[62] of Kieawkaew; and
(b) The applicability of Nam Son Nguyen to the applicant, given that he was sentenced on 8 August 2016 and Nam Son Nguyen was published three days later.
Applicant’s further submissions
The applicant made the following further submissions:
(c) The analysis in Kieawkaew at [66]–[67] focused on the comparative size of the cannabis crop being cultivated, rather than including a determination of role in informing the seriousness of the conduct. The cases cited at [60]–[61] did not relate to offenders who could properly be described as ‘crop sitters’. Therefore, the sentences referred to in Kieawkaew at [61]–[61] are of no real assistance to the Court in determining whether the sentence in the present case is manifestly excessive;
(d) The decision of Nam Son Nguyen excluded an uplift in the range of sentences for ‘less culpable offenders such as crop sitters falling toward the end of the lowest category’. The case was relied upon by the applicant for its determination that it was the role that would ‘inform the category of seriousness of the appellant’s conduct and in turn will identify the relevant CSP that must be considered’. The decision in Nam Son Nguyen would not apply to the applicant’s circumstances in the present case.
Respondent’s further submissions
The respondent did not file any further submissions.
Analysis
It was common ground that the applicant’s role in the cultivation of the cannabis was limited to being a crop-sitter. Therefore, the objective seriousness of his offending was at the lower end of the scale.
Most of the sentences summarised by this Court in Kieawkaew at [60]–[61] relate to offenders whose roles were more than mere crop-sitters. Although these roles were of a higher objective seriousness than that of the applicant in this case, the majority of those sentences are for periods of time that are less than the sentence that the applicant received. For this reason, it is reasonably arguable that the sentence of 3 years and 3 months imposed on the applicant is manifestly excessive and leave to appeal will be granted.
Aggregate sentence
In the present case, the task of evaluating the sentence has been made more difficult by reason of the sentencing judge having imposed an aggregate sentence without giving any indication as to the relative weightings in respect of the two convictions.[20] Notwithstanding what this Court has said in DPP v Felton[21] and The Queen v Wong,[22] no complaint has been made about this aspect of the applicant’s sentence.[23]
Conclusion
[20]Reasons [18].
[21](2007) 16 VR 214.
[22][2007] VSCA 278.
[23]Beevers v The Queen [2016] VSCA 271 [41] (Priest and Santamaria JJA).
For the above reasons, the application for leave to appeal is granted.
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