Nguyen v The Queen

[2010] VSCA 127

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0979

HUNG TRUONG NGUYEN
	Appellant
v
THE QUEEN	Respondent

---

JUDGES:	MAXWELL P and BUCHANAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 April 2010
DATE OF JUDGMENT:	13 April 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 127
JUDGMENT APPEALED FROM:	R v Nguyen (Unreported,  County Court of Victoria, Judge Coish, 11 December 2008)

---

CRIMINAL LAW – Appeal – Sentence – Cultivation of cannabis – Quantity exceeded commercial quantity threefold – Three years’ imprisonment, non-parole period of two years – Whether manifestly excessive – Whether consistent with current sentencing practices – Whether current sentencing practices consistent with maximum penalty of 25 years – Psychological condition largely consequent upon charging and prospect of imprisonment – Appeal dismissed.

CRIMINAL LAW – Sentencing – Cultivation of a drug of dependence – Quantity-based sentencing regime – Need for certainty and consistency in identifying relevant quantity of cannabis – Drugs, Poisons and Controlled Substances Act 1981 (Vic), Schedule 11 Part 2.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D C Hallowes	Haines & Polites
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

1. This is an appeal against sentence imposed in the County Court on 11 December 2008.  The appellant pleaded guilty to one count of cultivating a commercial quantity of cannabis and was sentenced to three years’ imprisonment with a non-parole period of two years.  For reasons which follow, I would dismiss the appeal.

Determining the relevant weight of cannabis

1. Sentencing for offences of drug trafficking and cultivation is quantity-based.[1]  There was some discussion in the course of argument as to which was the relevant weight of cannabis for the purposes of the Drug, Poisons and Controlled Substances Act 1981 (Vic). The commercial quantity of cannabis is specified in Part 2 of Schedule 11 to the Act as being either 100 plants or 25 kilograms.

   [1]As the Court explained in R v Pidoto & O’Dea (2006) 14 VR 269 (‘Pidoto’).

1. On the plea, the prosecution informed the judge that 48 cannabis plants had been found at the first of the three properties searched.  The weight of the cannabis was presented in two different ways.  First, it was said that the plants had ‘a total weight of 60.5 kilograms’.  (It was explained on the appeal that this was the weight of the whole plant excluding the roots.)  Secondly, the judge was told that the ‘yield weight’ of the cannabis – said to comprise ‘the leaves and flowering heads’ – was 47.3 kilograms.  On the appeal, counsel for the Crown submitted that the former of these two was the relevant weight. 

1. On the plea, defence counsel argued that the ‘commercial quantity of cannabis varies hugely in what can be alleged as facts’.  Counsel relied on the dried weight (11.8 kilograms) in submitting that the offence was ‘at the lower end of the scale in terms of quantity’. 

1. It seems to me most important that there be real clarity and certainty about the criterion of measurement, to remove the apparent confusion alluded to on the plea and referred to again this morning.  Otherwise it becomes very difficult to derive guidance from sentencing as between one case and another.

1. It is unnecessary for the purpose of disposing of this appeal to decide this question.  I am content to proceed on the basis of the yield weight, that having been the matter I raised with counsel for the appellant.  The conclusion I have come to is not affected by the difference between the total weight of 60.5 kilograms and the yield weight of 47.3 kilograms.  Further consideration of the correct approach to quantity must await a case in which that question falls for decision.

[NOTE:         Following the hearing, counsel for the Crown provided, in response to the Court’s request, a memorandum setting out the basis upon which the ‘total weight’ (excluding the roots) was said to be the applicable weight for the purposes of a cultivation count such as the present.  According to the submission:

The rationale for using the plant and material for cultivation cases is that –

(a)       cultivation is principally concerned with growing plants;

(b)       it is plants that are seized by police in such cases;  and

(c)cannabis is defined[2] as ‘any fresh or dried parts of a plant …’ [emphasis in original].

[2]In s 70(1).

Counsel said that he was not aware of any authority which had reviewed this approach.]

The cultivation

1. Three properties were searched.  The first did not appear to be occupied.  It had been set up for the purpose of cultivating cannabis hydroponically.  As counsel for the Crown pointed out, both this and the second property were separate from the residential premises of the appellant and his wife, the co-accused.  These were premises evidently rented and occupied for the sole purpose of the hydroponic cultivation of cannabis.  The appellant was renting the first house, and the electricity account was in his name.  There was an electrical bypass in place enabling the operation of the lights and equipment to grow the cannabis without charge.  The appellant was not charged with an offence relating to the theft of electricity.  He was nevertheless the operator of a cultivation system which involved the bypass of the electrical system.  The appellant was seen attending the premises during the three and a half months prior to the raid, staying at the house for an estimated two hours on each occasion.  No other person was seen to be associated with or living at this house.

1. At the second property, police found 104 cannabis plants, also growing hydroponically, in three rooms.  Like the other property, this was evidently a purpose-built set-up.  There was no other apparent purpose for the occupation of the house.  These plants were too immature to permit calculation of the ultimate yield but, as counsel for the appellant properly conceded, the fact that there were in excess of 100 plants means that this represented a further commercial quantity of cannabis under cultivation.  In addition, there were 45 cannabis plant stems, which were evidence of a previous crop.  (The appellant admitted in his record of interview that there had been such a previous crop.)  There was also here an electrical bypass system but on this occasion the electrical account was in the name of the appellant’s wife.  Both he and she regularly attended this address over the months leading up to the raid.  No one else was seen to be associated with or living at this address.

1. That same evening police attended the home of the appellant and his wife, where documentation was located relating to the two other premises.  The co-accused was interviewed but made no admissions.  The appellant made a number of admissions, including that he had rented the first property.  He asserted that he had been growing the cannabis for someone else and that he used the cannabis on a weekly basis when his back was aching.

1. The appellant told police that another person had been involved in the cultivation. When that person was questioned by police, however, he denied any involvement in the cultivation of cannabis.  On the plea, the sentencing judge properly raised with defence counsel the need for evidence to prove the assertion that someone else was involved.  Defence counsel declined to call his client to give evidence.

1. Three grounds are identified in the notice of appeal but Mr Hallowes essentially dealt with them as aspects of one submission – that is, that the sentence imposed was manifestly excessive.  He did submit specifically that there was an unjustifiable disparity between the sentence imposed on the appellant and the wholly suspended sentence imposed on his co-accused, his wife.  In my opinion, the judge was entitled to accept, as the prosecutor had conceded, that the co-accused had played ‘a far lesser role’ than the appellant and that there was ‘a significant difference between them, both in respect of role and antecedents.’  No issue was taken with that assessment on the plea.  In the circumstances, in my opinion, it was reasonably open to the sentencing judge to differentiate between the offenders in sentencing as he did.

Not manifestly excessive

1. Manifest excess is a ground commonly advanced on sentence appeals but, for the reasons I gave in R v Abbott,[3] it is a difficult ground to make out:

The ground of manifest excess will only succeed where it can be shown that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge.

The ‘range’ for this purpose is the range within which it would have been reasonable for a sentencing judge to sentence this appellant for this offence in these circumstances.  It follows that the ground of manifest excess will only succeed if it can be shown that no reasonable sentencing judge could have imposed this sentence on this offender for this offence in these circumstances.  That is a stringent requirement, difficult to satisfy.  It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance.  Sentencing is not the task of appellate courts, except where clear error is shown.  Where the ground of appeal is manifest excess, error will only be shown where it can be demonstrated that the sentence is obviously wrong in the sense I have described, that is, it is a sentence which no reasonable judge could have imposed in the circumstances.[4]

[3](2007) 170 A Crim R 306.

[4]Ibid 309.

1. Counsel for the appellant submitted that both the head sentence and the non-parole period imposed on the appellant were manifestly excessive.  He relied specifically on the evidence before the Court as to psychiatric difficulties and physical ill-health;  the consequent increased burden of imprisonment;  the consequences for the appellant of his having given police the name of an alleged co-offender;  and the unhappy personal history of the appellant. 

1. In my opinion, the ground of manifest excess is not made out.  For reasons which follow, I consider that the sentence was within the range reasonably open to the judge sentencing this offender for this offence in these circumstances.

1. The starting-point is that this was a very serious instance of the offence, as his Honour found.  Counsel for the appellant conceded that it was serious.  He pointed out, rightly, that the appellant had not been shown to be, and therefore was not sentenced as, the architect of this elaborate scheme.  But he also conceded that the appellant was the principal cultivator, and that no one else (apart from his wife) had been shown to have been a participant in the cultivation.

1. At the first property, there was at least twice the commercial quantity of cannabis.  At the second property, there was a further commercial quantity of cannabis.  Thus, as counsel conceded, this was a plea to cultivation of approximately three times the commercial quantity of a narcotic plant.  The appellant was actively involved in cultivation over three and a half months.  As counsel for the Crown pointed out, this clearly demonstrated a sustained effort on his part in relation to cultivation.  His Honour was right, in my respectful opinion, to accept the prosecutor’s submission that this was ‘a substantial operation’ and ‘a deliberate undertaking with extensive equipment.’[5]

   [5]R v Nguyen (Unreported,  County Court of Victoria, Judge Coish, 11 December 2008), [22].

1. I accept the submission from counsel for the Crown that this must be regarded as distinctly more elaborate than, for example, an arrangement in the back room of a house where the offender lives.  The offending in this case involved two separate houses, away from where the offenders lived, and dedicated to the purpose of cultivating cannabis. 

Seriousness of the offence

1. As has been regularly pointed out in sentencing decisions, this is an offence for which Parliament has set the highest fixed maximum in the criminal calendar:  25 years’ imprisonment.  As Buchanan JA noted in DPP v Duong,[6] the maximum of 25 years shows unambiguously how seriously the community, through the Parliament, views this conduct. 

   [6][2006] VSCA 78 (‘Duong’).

1. And it is of course irrelevant which drug is being cultivated.  So much was made clear by the decision of this Court in Pidoto.[7]  Since that 2006 decision the sentencing regime has remained unchanged.  There has been no move to establish a scheme under which the sentencing court is expected to decide whether one drug is more harmful than another.  As the Court said in Pidoto,[8] this is a quantity-based sentencing regime.  Although quantity will not bear an arithmetical relationship to sentence, the quantity involved is a very significant matter in sentencing for these offences.

   [7](2006) 14 VR 269.

   [8]Ibid.

1. This Court has referred regularly in the last 12 months to the obligation of sentencing judges to have regard to the maximum sentence fixed by Parliament.  As the Court said in DPP v CPD:[9]

The discretion which a sentencing judge has in dealing with a particular offender is a vital part of the administration of criminal justice.  But sentencing judges may not disregard the will of Parliament as expressed in the fixing of the maximum penalty.[10]

I will return to this topic when I deal with some of the decisions relied on by the appellant.

[9][2009] VSCA 114.

[10]Ibid [81].

1. In Duong,[11] Buchanan JA said:

Generally this offence requires substantial punishment.  The increasing number of hydroponic crops of cannabis detected in the last few years is material …[12]

That was said in 2006.  In The Queen v Mason,[13] his Honour said:

General deterrence is an important consideration in sentencing for the offence of cultivation of a commercial quantity of cannabis.[14]

[11][2006] VSCA 78.

[12]Ibid [13].

[13][2006] VSCA 55 (‘Mason’).

[14]Ibid [16].

The link between increasing prevalence and general deterrence is self-evident.

Psychological factors

1. The submission for the appellant laid particular emphasis on what was said to be the judge’s failure to give sufficient weight to the mitigating factors, specifically the psychological and physical infirmities of the appellant.  The sentencing judge made the following remarks in his reasons for sentence.

[15] I heard evidence from your treating psychiatrist Dr Rikas on 28 August 2008.  Dr Rikas expressed the opinion that you were suffering from major depression of moderate severity.  Your depression was mainly in response to this court case.  Dr Rikas had been encouraging you to actually face your criminal trial and face the consequences of your actions.  Dr Rikas was of the opinion that your depression might worsen if you have to go to prison and engage with a new doctor.  I accept these opinions of Dr Rikas.

[16] You were assessed for medico legal purposes by Dr Adam Deacon, psychiatrist, on 5 December 2008.  Dr Deacon gave evidence on your behalf.  He was of the opinion that you were suffering from post-traumatic stress disorder and you were moderately severely depressed.  Dr Deacon stated that there was no relationship whatsoever between your offending and your psychiatric condition.  Thus, your psychiatric condition has no bearing upon your moral culpability.  Dr Deacon was of the opinion that you remain a chronic suicide risk.

[17] I accept Dr Deacon’s opinion that as a result of you psychiatric condition you are more vulnerable that the average prisoner. I am satisfied you have a significant psychiatric condition and I have applied the well-known principles set out in R v Verdins.[15] I accept there is a serious risk imprisonment will have a significant adverse effect upon your mental state. I accept that for you imprisonment will be a greater burden that for a person in normal health. This is not only because of your psychiatric condition, but also because of the provision of information by you to police concerning others allegedly involved in the cultivation.

[18] I assess your prospects of rehabilitation as being good.

…

[25] As well as the matters to which I have referred I must also take into account the need for general deterrence. I have significantly moderated the weight given to both specific deterrence and general deterrence in respect of you Hung Nguyen having regard to your personal circumstances, background and psychiatric condition. I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment. Superior courts have consistently emphasised the serious nature of this type of offending. Drugs of dependence have a deleterious effect upon individuals  and society.[16]

[15](2007) 16 VR 269 (‘Verdins’).

[16]R v Nguyen (Reasons for Sentence) (Unreported, County Court of Victoria, Judge Coish, 11 December 2008), [15]–[18]; [25].

1. These passages show, as counsel properly conceded, that his Honour understood those factors and expressly took them into account.  The argument for the appellant is not that there was any specific error, but that the sentence imposed revealed unmistakably that no sufficient weight was given to those powerful matters in mitigation.  The judge expressly stated that he had moderated both specific deterrence and general deterrence because of the personal circumstances relied upon.

1. It is important to note what this Court said recently in R v RLP,[17] about the limited mitigating significance of a psychiatric condition which comes on in response to the offender being charged and facing the prospect of imprisonment.  In the present case, a substantial part of the appellant’s psychiatric difficulties were said, by both experts who gave evidence, to have been of that type, that is, reactive to his having been charged and reflective of his great fear of being imprisoned. 

   [17][2009] VSCA 271 (‘RLP’).

1. In RLP,[18] the Court pointed out that those aspects of the Verdins[19] principles concerned with the moderation of general deterrence will ordinarily not apply with the same force where the psychiatric condition develops in reaction to the criminal justice processes.  The Court said:

[29] Where, as here, the offending conduct is the cause of the mental condition, the considerations separately described by Lush J and Allen J do, to some extent, fall away. In the words of Allen J, human sympathy would not necessarily say ‘well, you would not expect him to get the same sentence as someone else’. That is because the offender is the author of his own predicament and may be viewed as an appropriate medium for making an example to others. The community would not expect the offender to be treated more leniently because he has had an adverse reaction to the discovery of his crimes and his fear of imprisonment. In such cases, the circumstances of the offender may be seen as similar to an offender who suffers from a pathological gambling addiction, or an addiction to drugs or alcohol, and who in the eyes of the law has contributed to some extent to their condition, so that on that account deterrence should not be reduced.

[30] Propositions 3 and 4 in Verdins must therefore be understood as subject to further qualification. In addition to the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, the aetiology of the mental condition may also be relevant in determining whether deterrence should be moderated. Where the mental condition arises as a reaction to the discovery of the offender’s crimes or to the prospect of incarceration, little or no moderation of general deterrence should be allowed in the instinctive synthesis. This is such a case. The age of the offender and the nature and severity of the mental condition will determine whether there should be any moderation in specific deterrence.

[31] As to proposition 5, where it is concluded that the mental condition will make the serving of a term of imprisonment more onerous for that offender, it should generally receive its full measure as a mitigating factor in the instinctive synthesis, even though the condition arises as a consequence of the offending conduct. While each case is different, we do not consider that it will be appropriate in most cases to reduce the weight to be given to that mitigating circumstance because the appellant’s offending conduct brought about his mental state.[20]

[18]Ibid.

[19](2007) 16 VR 269.

[20]RLP [2009] VSCA 271, [29]–[31].

1. As this passage makes clear, the offender will nevertheless be entitled to the full discount under proposition 5 in Verdins;[21]  that is, where the psychiatric condition will make the experience of gaol more burdensome.

   [21](2007) 16 VR 269.

Current sentencing practices

1. In my opinion the sentence which the judge imposed here shows that a substantial reduction was made in respect of the mitigating factors.  I see no warrant for appellate intervention.  It is true, as counsel for the appellant points out, that there are recent sentencing decisions which may be thought to make this sentence seem at the high end of the range.  These decision are set out in the table attached to these reasons.

1. Counsel for the Crown candidly acknowledged that a sentence of three years’ imprisonment with a minimum of two was common for this offence.  He also acknowledged, on behalf of the Crown, that this sentencing practice was not consistent with what Parliament intended by setting such a high maximum. 

1. In my view, the elaborateness of this set-up, and the occupation of two separate properties for the purpose of cultivation, can properly be regarded as taking this out of the ordinary run of cases.  According to the Sentencing Advisory Council’s Sentencing Snapshot No 48[22] for this offence, over the five years 2002–03 to 2006–07 102 people were imprisoned for this offence.  The prison terms ranged from one year to six years.[23]  The most common term imposed was two years, and the median was two years and six months.  In only one of the 102 cases did the sentence exceed five years.  (Five years is, of course, only 20 per cent of the maximum). 

   [22]Sentencing Advisory Council, Sentencing trends for cultivating a commercial quantity of narcotic plants in the higher courts of Victoria, 2002-03 to 2006-07, Sentencing Snapshot No 48, March 2008.

   [23]Ibid 5.

1. It may be that the figures up to 30 June 2007 reflect a pre-Pidoto[24] view that cannabis was, relatively speaking, a harmless drug, or at least less harmful than other drugs of dependence.  That view might partly explain what seems on the face of it to be a very low sentencing practice.  But as Buchanan JA said in Duong:[25]

The grave harm which cannabis grown by modern methods can inflict has been noted by many judges.  Generally the offence requires substantial punishment.[26]

[24](2006) 14 VR 269.

[25][2006] VSCA 78.

[26]Ibid [13]. See also Pidoto (2006) 14 VR 269, [52].

1. What the Sentencing Advisory Council has published reflects a statistical range in which sentencing for the offence over that five-year period was capped at six years.  An upper limit of six years seems impossible to reconcile with the statutory maximum of 25 years, since the figures for the five year period presumably include some cases of the more serious kind.  It seems to me that the Victorian community would be entitled to ask why sentences for this offence have been consistently under – or well under – one-fifth of the maximum.

1. There are, however, other decisions included in the table at the conclusion of these reasons which show that this sentence was within range.  I will refer to only two.  Each involved a substantial hydroponic set up for the cultivation of cannabis.  The first is Duong,[27] on which the applicant relies.  Once again, there were two premises, one with 152 cannabis plants and another with 197 plants.  On the count of cultivation of a commercial quantity at the first premises, the sentence was two years’ imprisonment.  On the count relating to the second premises, the sentence was two years and six months’ imprisonment.  The total effective sentence was three years and six months, which included three months for the electrical bypass offence. 

   [27][2006] VSCA 78.

1. There, as here, the offender had a tragic history.  She was a Vietnamese refugee.  Buchanan JA said the following about the mitigating circumstances applicable to her. 

[11] There remains the ground of complaint of manifest inadequacy of the sentence and minimum term. This ground requires an examination of the background and characteristics of the respondent. The respondent is no 34 years old. She was born in North Vietnam. She lived in a city which was heavily bombed during the Vietnamese war. She led an unstable, itinerant existence before fleeing Vietnam in 1989 in a small fishing boat carrying a large number of people. After a voyage in the course of which passengers died of starvation, the boat reached Hong Kong. The respondent was interned in a refugee camp, where she was raped and otherwise abused. The conditions under which the respondent lived caused her to be infected with hepatitis B and suffer cardiac failure requiring open-heart surgery. The respondent married in Hong Kong and in 1996 was allowed to migrate to Australia. The respondent is the mother of girls aged ten and five years, who are now cared for by their father. A psychologist reported to the sentencing judge that the respondent suffered from depression and that her concerns for the wellbeing of her children ‘affected her severely’.

…

[14] The respondent, however, could rely upon a number of mitigating factors. She pleaded guilty to the charges, albeit the plea to the first presentment was not an early plea. The sentencing judge found that the respondent was remorseful. The respondent had no prior convictions. Her Honour also thought that there was a prospect of the respondent’s rehabilitation and that her separation from her children enhanced that prospect. The respondent’s upbringing was marked by privations and suffering. Her health is poor: she suffers life-threatening illness and depression.[28]

[28]Ibid [11], [14].

1. His Honour concluded:

[15] There can be no doubting the gravity of her conduct.  The sentence may be viewed as lenient in the light of the offending conduct. When the respondent’s personal circumstances are taken into account, however, I consider that the individual sentences, the total effective sentence and the minimum term were all within the range available to the sentencing judge. I would dismiss the appeal.[29]

In that case (unlike the present, I should point out), the second offence had been committed while the offender was on bail.

[29]Ibid [15].

1. The second case is Mason.[30]  Again, there were two separate premises.  At the first, there were 302 plants and 12 kg of cannabis.  At the second, there were 83 cannabis plants.  That adds up to almost four times the commercial quantity in total.  On the single count of cultivating a commercial quantity, Mason was resentenced in this Court to five years’ imprisonment with a minimum of three years.  He had a prior conviction for cultivation some 10 years earlier, which the Court regarded as relevant.[31]  There was a plea of guilty, as there was here. 

   [30][2006] VSCA 55.

   [31]Ibid [3].

1. Again, as Buchanan JA’s reasons show, there was strong mitigation on the basis of ill health and depression. 

[13] The applicant’s health is poor. He has had strokes and suffers from high blood pressure. Arteriosclerosis has been diagnosed. A doctor who examined the applicant on 25 February 2006 has said that a number of turns suffered by the applicant may have been due to a diminution of the flow of blood to the applicant’s brain due to arteriosclerosis of the carotid artery. If the diagnosis of arteriosclerosis was confirmed, surgery would be considered. The applicant’s memory and reasoning might suffer, which would make it more difficult for the applicant to cope with prison. A psychologist reported to the Court that the applicant suffered significant depression, anxiety and low self-esteem.

[14] As a result of his conviction the applicant has lost the Warrandyte property. The applicant could also rely upon his plea of guilty as a mitigating factor, albeit it was made at a late stage in the proceedings.

[15] Schneider pleaded guilty to a charge of cultivating cannabis at Donvale and theft of electricity and was sentenced to three and a half years’ imprisonment with a non-parole period of two years. In my view his sentence is of marginal relevance to the task of resentencing the applicant, for Schneider undertook to give evidence against the applicant and played a subordinate role. I note, however, that his prior convictions were more substantial than the prior conviction of the applicant.[32]

[32]Ibid [13]–[15].

1. Those two cases, each involving cultivation at multiple premises, seem to me to demonstrate that – even within current sentencing practice – this sentence was within range, full weight being given to what on any view was very strong material in mitigation.  At the same time, the decisions set out in the table raise real questions about sentencing consistency for this offence and also about whether current sentencing practice can be viewed as adequate in the light of the statutory maximum.

Adequacy of current sentencing practices

1. In 2006 in Duong,[33] the Director submitted that sentences for this offence should be increased because of ‘the increased prevalence of cannabis grown by hydroponics’.  The Chief Justice (with whom Ashley JA agreed) said that it was not appropriate for the Director to advance such a contention for the first time on appeal.  It should be done on proper material before the sentencing judge, their Honours said, so that the matter can be properly investigated and the requirements of natural justice to the offender can be observed. 

   [33][2006] VSCA 78.

1. The Chief Justice said:

[17] There was a submission made on behalf of the Director that this was an appropriate case to increase the sentence by taking account of the increased prevalence of cannabis grown by hydroponics, and also the impact of the availability of such cannabis on society. Attention was drawn to statistical data submitted by the prosecutor on the plea to demonstrate the increase in that prevalence. The data seemed to be, by way of calendar years: 2001-17 cases; 2002-30 cases; 2003-56 cases;  and for the year 2004 up until July, that is, half of the calendar year - 78 cases. It seems that there was no other information before the sentencing judge.

[18] In the course of the submissions to this Court it was urged that the Court take account of the increased prevalence and, on the basis of that factor together with the other submissions, provide the basis for the increase in sentence to be imposed on the respondent. This was a matter that in my view was not properly put to the sentencing judge, and indeed the data that was put before her Honour was very limited.  It is not apparent, for example, as to whether the increase in cases can to some extent be explained by way of increased police surveillance or other matters in the course of police investigation.

[19] Of course, it might be that an increase in prevalence of a particular crime does provide a foundation or basis upon which to urge a court to increase the penalties that have been previously imposed. Indeed, such has occurred with respect to the offence of culpable driving. However, the offences in this case are distinguishable from the culpable driving offence because culpable driving of itself is a specific event that does not come to light in the community and to the attention of the police merely by way of increased police attention. It seems to me that it would be desirable in a case such as this, if the Director wishes to urge an increase in penalties, for a prosecutor at first instance to put material before the court, properly set out, explaining the foundation for the submission that there has been an increase, and as to why the court should adopt a different approach and increase the penalty above and beyond that previously imposed.

[20] Save for these remarks, as I indicated, I agree with the reasons and the disposition proposed by Buchanan JA.[34]

When I enquired this morning, counsel for the Crown said that he was not aware of any instance in which the Director has taken that course in the four years since those views were expressed. 

[34]Ibid [17]–[20].

1. As this Court has now said in relation to a range of offences – sexual penetration of a child under 10;[35]  persistent sexual abuse of a child under 16;[36]  and aggravated burglary[37] – these questions about the adequacy of current sentencing practices are matters of the first importance.  The responsibility for pursuing issues about the adequacy of sentencing practices rests squarely with the Director, who has a statutory right of appeal against sentence.  According to counsel for the Crown, prosecutors are now being instructed to raise issues of this kind where appropriate.  The Director is very much to be commended for that.

   [35]See DPP v CPD [2009] VSCA 114.

   [36]See DPP v DDJ [2009] VSCA 115.

   [37]See DPP v El Hajje [2009] VSCA 160.

1. I would dismiss the appeal.

BUCHANAN JA:

1. I agree.

MAXWELL P:

1. The order of the Court is: appeal dismissed.

---

Appeal decisions on sentencing for cultivating a commercial quantity of a narcotic plant

Name	Plea	Prior  drug convictions	Weight	Sentence imposed on single count(s)	TES	NPP	Comments
R v Pajic[2009] VSCA 53	G	N	33 kg dry (15 more mature and 15 less mature plants)	2y  3m	2y 6m	1y 3m	Resentenced on appeal
DPP v Hossack [2009] VSCA 14	G	Y	446 g[38] (54 plants)	10m	1y 2m (susp for 3y)	−	Director’s appeal dismissed
DPP v Willis [2009] VSCA 14	G	Y	69.58kg (75 plants)	1y 6m	1y 6m (susp for 3y)	−	Director’s appeal dismissed
R v Dauti[2008] VSCA 196	G	N	40.3 kg (20 plants)	15m	15m (5m susp for 12m)	−	Resentenced on appeal
R v Filipovic [2008] VSCA 14	NG	N	40 kg (17 plants)	2y 1m	2y 4m	1y 1m	Resentenced on appeal
R v Gelevski [2008] VSCA 14	NG	Y	40 kg (17 plants)	2y 4m	2y 7m	1y 3m	Resentenced on appeal
R v Ngo [2007] VSCA 240	NG	N	50.5 kg	3y	3y 3m	2y	Resentenced on appeal
R v Pham [2007] VSCA 234	G	N	93 kg (150 plants)	2y 9m	3y	2y	Appeal dismissed
R v Garcia [2007] VSCA 194	G	Y	42.8kg (27 plants)[39]	2y 3m	3y 3m	2y 3m	Appeal dismissed
R v Duong [2006] VSCA 78	G	N	152 plants and 197 plants (separate presentment for each crop)	2y;  2y 6m	3y 6m	2y	Appeal dismissed
R v Mason [2006] VSCA 55	G	Y	302 plants[40] and 87 plants at two properties	5y	5y 4m	3y	Resentenced on appeal
R v Clohesy [2000] VSCA 206	G	N	estimated potential yield 2.6 kg (86 cannabis plants and 144 plants)	3y 6m	3y 6m	2y	Appeal dismissed

[38] 5.06 kg of partly dried plant material was also recovered.

[39] 12 plants stumps and 2 bags of plant material were also discovered.

[40] 12 kg of cannabis and  more than 420g of cannabis seed were also recovered.