Nguyen v The Queen

[2010] VSCA 244

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 770 of 2009

DUC MINH NGUYEN	Appellant
	v
THE QUEEN	Respondent

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JUDGES	ASHLEY and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	16 September 2010
DATE OF JUDGMENT	16 September 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 244
JUDGMENT APPEALED FROM	R v Nguyen D (Unreported, County Court of Victoria, 13 August 2009, Judge Duckett)

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CRIMINAL LAW – Appeal against sentence – Drug offences – Crown concession of specific error – Failure to fix a non-parole period by reason of likelihood of deportation not a relevant consideration – Appeal allowed – Appellant re-sentenced.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr T. Kassamatis	Balmer & Associates Pty
For the Crown	Mr D.A. Trapnell SC	Mr C. Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

1. I will ask Weinberg JA to deliver the first judgment.

WEINBERG JA:

1. The appellant pleaded guilty in the County Court at Melbourne to one count of having, between 1 July 2008 and 29 September 2008, cultivated a narcotic plant, namely Cannabis L, in a quantity not less than the commercial quantity applicable to that plant (count 1), one count of theft of electricity (count 3), one count of having, on 21 September 2008, trafficked in a drug of dependence, namely Cannabis L (count 4), and one count of having on 29 September 2008 had in his possession a drug of dependence, namely Cannabis L (count 5).  He was sentenced to a total effective term of two years and five months’ imprisonment.  This is an appeal, pursuant to leave granted by Nettle JA, against that sentence.

1. The primary ground of appeal is that the sentencing judge erred by failing to fix a non-parole period.  His Honour declined to do so because he was told, no doubt correctly, that the appellant, who had come to this country on a tourist visa in 2003, and overstayed, would most certainly be deported to Vietnam as soon as he was released from prison.  Both the Crown and the defence submitted that it would be inappropriate to fix a non-parole period in those circumstances.  The defence submitted that his Honour should deal with the matter by imposing a lower total effective sentence than might otherwise be appropriate. 

1. The authorities make it clear that the likelihood that a person will be deported after that person has completed his or her actual custodial sentence is entirely irrelevant when considering whether a non-parole period should be fixed.  The Crown has conceded sentencing error, having regard to the state of the law on this point.  It is therefore necessary to re-sentence the appellant. 

1. There is also before the Court an application to extend time within which to file an application for leave to appeal against conviction in relation to count 5.  The basis for that application is that, notwithstanding the appellant’s plea of guilty to that count, he could not, as a matter of law, be convicted upon it.  He contends that both the conviction, and the imposition of a term of imprisonment, on count 5 constitute ‘double punishment’. 

1. It is convenient to set out briefly some of the background facts regarding this matter.  The appellant was born in October 1966.  He was therefore 41 years of age at the time of the offending, and 42 years old at the time he was sentenced. 

1. The evidence was that on 29 September 2008 the police attended at the appellant’s home at 28 Chelmsford Crescent, St Albans, to execute a search warrant.  A search of the house revealed a hydroponic growing system in the lounge room comprising 35 mature cannabis plants which were nine to 11 weeks old, each approximately one metre high and one metre wide, growing in individual pots.  The three bedrooms of the house each had a similar hydroponic set up.  In the first there were 11 mature plants, in the second 15 immature plants, and in the third, a further 58 immature plants.  In all, 119 plants were seized, weighing a total of 36.83 kilograms.  These facts gave rise to count 1, cultivating a narcotic plant in a commercial quantity. 

1. Separately located in the laundry, police found a bag of dried cannabis weighing 430 grams.  That bag was the subject of count 5, the count of possession of a drug of dependence, namely Cannabis L. 

1. In his record of interview made on the day of his arrest, the appellant admitted that, on 21 September 2008, he had sold a quantity of cannabis for $7,000.  That sale was the subject of the count of trafficking, count 4. 

1. The count of theft of electricity, count 3, speaks for itself. 

1. The appellant admitted in his record of interview that it was his role to water the plants and to supply lighting and nutrients.  On his own admission, he retained at least part of the proceeds of sales.  He claimed that he had received only $2,100 out of the $7,000 for which the cannabis, the subject of count 4, had been sold.  He told the police that he had paid rent of $900 per month to the owner of the house, that being the wife of his co-accused.  The sentencing judge observed that it was not apparent where that rent money had come from, but noted that the appellant’s counsel had submitted that an unidentified person had approached him to undertake the operation. 

1. His Honour then dealt with the appellant’s background and personal circumstances.  He had been born and brought up in North Vietnam.  His family had been impoverished, and he had worked as a labourer and rickshaw driver.  He had been educated to year 11.  He had married at the age of 20 and had two children in Vietnam aged 18 and 5.  He had not seen his family in Vietnam since 2003.  His younger sister lived in Melbourne and she had sponsored his visit to this country on a tourist visa in 2003.  As I have indicated, he overstayed that visa and was therefore, at the time of the commission of these offences, illegally in this country.  He had found it difficult to learn English, and had undertaken various forms of employment within the Vietnamese community, generally working for low wages, in cash. 

1. The sentencing judge then said:

It is agreed by counsel that as a result on your release from custody the authorities will deport you to Vietnam.  In those circumstances it is not appropriate to impose sentences that include a period available for parole or a partially suspended sentence of imprisonment.  As a result, I shall make a reduction in the period of immediate imprisonment that otherwise would have been imposed.

1. His Honour noted that the appellant had pleaded guilty to these charges at the first available opportunity, and said that he would take that fact into account in the appellant’s favour. He sentenced the appellant to two years’ imprisonment on count 1, six months’ imprisonment on count 3, 12 months’ imprisonment on count 4, and one month imprisonment on count 5. With various orders as to cumulation, the total effective sentence was, as I have said, two years and five months. His Honour indicated that, pursuant to s 6AAA of the Sentencing Act 1991, but for the plea of guilty, he would have imposed a total effective sentence of three years’ imprisonment. 

1. In R v Shrestha,[1] the High Court made it plain that, when it is otherwise appropriate to fix a non-parole period, that should be done notwithstanding the likelihood that the prisoner will, on release, face deportation.  His Honour’s attention was not drawn to Shrestha,[2] or to R v Binder,[3] an earlier Victorian decision to the same effect.  Instead, counsel who appeared for the appellant on the plea submitted that, although it would not make sense, in the particular circumstances of this case, to fix a non-parole period, it would be appropriate to suspend, in part, any term of imprisonment that might be imposed.  That would avoid, so it was said, a situation which saw the appellant released conditionally on parole, and theoretically subject to the supervision of the Parole Board in circumstances where he would be out of the jurisdiction.  The Crown did not oppose that suggested course, the prosecutor conceding that a total effective sentence not exceeding three years would be sufficient to do justice to the case. 

   [1](1991) 173 CLR 48, 71-2 (Deane, Dawson and Toohey JJ) (‘Shrestha’).

   [2](1991) 173 CLR 48.

   [3][1990] VR 563, 569-70 (Marks J, with whom Crockett and Nathan JJ agreed).

1. As I have earlier indicated, and as the passage from his Honour’s sentencing remarks makes plain, the judge instead imposed a ‘straight sentence’, possibly intended to represent the non-parole period that he would otherwise have fixed. 

1. In so doing, his Honour failed to comply with s 11 of the Sentencing Act 1991 by declining to fix a non-parole period for a reason other than ‘the nature of the offence or the past history of the offender’.  Moreover, his Honour allowed the likelihood of executive action to influence the exercise of his discretion, and in doing so, failed to comply with s 5(2AA). 

1. Counsel for the appellant submits that in re-sentencing, a total effective sentence that is equal to or less than the two years and five months imposed below would be appropriate.  That would, in turn, permit the partial suspension of that sentence, or the fixing of a non-parole period referable to the new total effective sentence. 

1. The Crown concedes, as I have said, that his Honour’s failure to fix a non-parole period vitiates the sentences imposed, and requires the appellant to be re-sentenced.  It draws attention to several cases, in addition to those upon which the appellant relies in support of that concession.[4]  The Crown concedes that the cultivation of 119 plants placed this offending in the ‘lower end of the range’ for cultivation of not less than a commercial quantity (the threshold figure being 100 plants). 

   [4]See for example R v Chi Sun Tsui (1985) 1 NSWLR 308, 310-312.

1. The Crown also supplied references to a number of cases in which offences similar to those committed by the appellant had been dealt with by the courts.  Sentences ranged from about two years and three months, to four years and three months (in the latter case a non-parole period of two years was fixed). 

1. When his Honour sentenced the appellant on 13 August 2009, he declared that the appellant had been in custody for 319 days in relation to these offences.  The appellant has since been in custody for a further 398 days.  That makes a total of 717 days.  In my opinion, he should not be required to serve any further period of imprisonment, and there would be no utility in requiring him to do so. 

1. I would therefore allow the appeal against sentence, set aside the sentences imposed below, but reimpose them in exactly the same terms.  That makes a total effective sentence of two years and five months’ imprisonment.  I would suspend seven months of that sentence which, on my calculations, would allow the appellant to be released forthwith. 

1. Whether or not the appellant is, in fact, deported, as seems almost certain, is of course a matter for the executive, and has nothing whatever to do with this Court’s disposition of this appeal. 

1. I would refuse the extension of time sought.  In my opinion, there is no double punishment involved in convicting and sentencing the appellant separately for

cultivation of the plants located within the house, and possession of the dried cannabis separately located in the laundry.  That dried cannabis may or may not be the proceeds of the hydroponically grown plants, but its possession is, in my view, sufficiently separate and distinct, as an offence, to warrant a conviction on count 5.  The elements of the two offences are quite different, and it cannot be said that either charge is wholly included within the other.  It also warrants the imposition of separate punishment for that offence, there being, relevantly, no ‘common elements’ within the two counts.[5] 

[5]Pearce v The Queen (1998) 194 CLR 610.

ASHLEY JA:

1. I agree. 

1. These are the orders we will make.

1.        The application for extension of time within which to lodge an application for leave to appeal against conviction is refused.

2.        The application to add an additional ground of appeal against sentence is refused.

3.        The appeal against sentence is allowed.

4.        The sentence below is quashed.  In lieu thereof the appellant is sentenced as follows:

Count 1 - to be imprisoned for two years;

Count 3 - to be imprisoned for six months;

Count 4 - to be imprisoned for 12 months;

Count 5 - to be imprisoned for one month.

Cumulate one month of the sentence on Count 3, three months of the sentence on Count 4 and the sentence on Count 5 on each other and on the sentence on Count 1.  The total effective sentence is two years and five months' imprisonment.  Order that seven months of the sentence be suspended for a period of seven months.

It is declared that a period of 717 days, not including this day, has already been served pursuant to the sentence, and it is ordered that the fact that that declaration was made, and its details, be noted in the records of the Court.

Declare under s 6AAA of the Sentencing Act 1991 that had the appellant not pleaded guilty, and assuming conviction, it would have sentenced him to a total effective sentence of three years' imprisonment, and that it would have suspended nine months of that sentence for a period of nine months.

1. We will note, not as part of the orders, but as part of the Court's record, that appellant's counsel gives an undertaking to cause to be explained to the appellant the matters referred to in sub-s 27(4) of the Sentencing Act 1991.