Nguyen v The State of Western Australia
[2009] WASCA 8
•13 JANUARY 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NGUYEN -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 8
CORAM: STEYTLER P
McLURE JA
MILLER JA
HEARD: 4 DECEMBER 2008
DELIVERED : 13 JANUARY 2009
FILE NO/S: CACR 119 of 2008
BETWEEN: HAO QUANG NGUYEN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :EATON DCJ
File No :IND 91 of 2008
Catchwords:
Criminal law - Sentence - Possession of heroin, methylamphetamine and 4Bromo2,5dimethoxyphenethylamine with intent to sell or supply - Cultivation of cannabis (two locations) - Possession of cannabis with intent to sell or supply (2.38 kg and 7.8 kg respectively - Aggregate sentence of 10 years' imprisonment - Whether manifestly excessive - Parity of sentencing - Disparity between sentences - Appellant's mother sentenced to aggregate sentence of 4 years' imprisonment for two counts of cultivation and two counts of simple possession - Appellant's girlfriend sentenced to aggregate sentence of 3 years 8 months' imprisonment for offences of possession with intent to sell or supply of heroin, methylamphetamine and 4Bromo2,5dimethoxyphenethylamine and two counts of cultivation of cannabis - Whether appellant has any justifiable sense of grievance - Application of totality principle - Whether sentencing judge erred in conclusions in relation to money found on appellant
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)(a)
Sentencing Legislation Amendment and Repeal Act 2003 (WA), sch 1 cl 2Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr T F Percy QC & Mr S D Freitag
Respondent: Mr R E Cock QC & Mr B B Sertorio
Solicitors:
Appellant: AKN & Associates
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186
Billing v The State of Western Australia [No 2] [2008] WASCA 11
Day v The Queen [2001] WASCA 284; (2001) 127 A Crim R 403
Duthie v Smith (1992) 107 FLR 458
Hassan v The State of Western Australia [2006] WASCA 139
Hutchins v The State of Western Australia [2006] WASCA 258
I v The State of Western Australia [2006] WASCA 9
Jarvis v The Queen (1993) 20 WAR 201
Johnson v The Queen [2004] HCA 15; [2004] 78 ALJR 616
Lowe v The Queen (1984) 154 CLR 606
M v Waldron (1988) 90 FLR 355
Noble v The Queen [2003] WASCA 83
Parfitt v The State of Western Australia [2007] WASCA 11
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Postiglione v The Queen [1997] HCA 26; (1996) 189 CLR 295
R v Faithfull (2004) 142 A Crim R 554
R v Holder (1983) 3 NSWLR 245
R v Lyon [2001] WASCA 120; (2001) 121 A Crim R 440
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v Higgins [2008] WASCA 157
Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107
Walgar v The State of Western Australia [2007] WASCA 241
1STEYTLER P: I have had the advantage of reading the judgment of Miller JA. Because he has comprehensively set out the facts concerning this appeal against sentence, it is unnecessary for me to do so. I am grateful to be able to incorporate what he has said in those respects into these reasons.
Ground 1 - parity
2Ground 1 raises a parity issue. It is important to consider that issue in the light of the relevant findings of fact. These relate to three different offenders, none of whom committed identical offences or played identical roles. Their antecedents are also different in material respects.
3The appellant was found to have been the principal offender. He was convicted of eight offences. These were two offences (counts 1 and 2) of possession of heroin with intent to sell or supply (respectively 113 gm with a purity of 14% and 23 gm with a purity of 26%), one offence (count 3) of possession of methylamphetamine with intent to sell or supply (207.4 gm with a purity between 21% and 33%), one offence (count 4) of possession of 253 gm of BDMPEA (a substance similar to ecstasy) having a purity of 4%, with intent to sell or supply, two offences (counts 5 and 7) of cultivation of cannabis with intent to sell or supply (a total of 272 plants with a crop value of $648,000) and two offences (counts 6 and 8) of possession of cannabis with intent to sell or supply (a total of 10.18 kg). He was sentenced to a total term of 10 years' imprisonment. This was made up of 6 years' imprisonment for the cannabis offences (3 years, cumulative, for each of the cultivation offences and 2 years concurrent for each of the possession offences) and 4 years' imprisonment, to be served cumulatively, for the other offences (4 years' imprisonment for the more serious heroin offence and for the methylamphetamine offence, 2 years and 6 months' imprisonment for the lesser heroin offence and 3 years' imprisonment for the BDMPEA offence, all to be served concurrently).
4The appellant's girlfriend, Ngoc Xuan Dong (Dong), was convicted of counts 1, 2, 3, 4, 5 and 7. She was sentenced to a total term of 3 years and 8 months' imprisonment. This was made up of terms of 1 year and 10 months' imprisonment (count 1), 1 year and 4 months' imprisonment (count 2), 2 years and 8 months' imprisonment (count 3) and 2 years' imprisonment (count 4), all of which were to be served concurrently, and two terms of 1 year's imprisonment (counts 5 and 7) to be served concurrently with each other but cumulatively upon the terms imposed on counts 1 to 4.
5The appellant's mother, Mui Ngan (Mui) was convicted on counts 5 and 7 and (somewhat counter‑intuitively) of simple possession of the drugs the subject of counts 6 and 8. She was sentenced to a total of 4 years' imprisonment. This comprised two terms of 2 years' imprisonment on each of the cultivation counts, to be served cumulatively, and 8 months imprisonment on each of the possession counts, to be served concurrently with each and with the other terms imposed.
6I propose first to comment on the parity argument as it relates to Mui. The comparison is between 6 years' imprisonment required to be served by the appellant and 4 years' imprisonment required to be served by Mui. However, Mui was convicted of lesser offences (possession only) so far as counts 6 and 8 were concerned and, as Miller JA has pointed out, that is conceded to be rightly reflected by the differential of 16 months' imprisonment imposed in respect of each of those counts. The alleged disparity consequently relates only to the cultivation charges.
7There is not much difference between Mui and the appellant so far as their antecedents are concerned. As appears more fully from Miller JA's reasons, both have a record of previous drug offences, although the appellant's is worse than Mui's, notwithstanding that she was 52 years old and he was 27 years old. Both pleaded guilty to all of the offences of which they were convicted. While Mui's plea in respect of the possession charges came late, this seems to have been because she had been charged with possession with intent to sell or supply and some time elapsed before the State accepted the pleas in respect of the lesser offences of simple possession.
8
It seems plain that the sentencing judge accepted that Mui played a lesser role in the cultivation than did her son. That she did play a lesser role might be supported by the fact that she was convicted only of simple possession of the cannabis that had already been harvested. The sentencing judge said that Mui had 'less to gain' from the enterprise than others. I assume that, by this, he was referring to financial gain. In these circumstances, I would not be prepared to accept that there is a disparity between the terms imposed on the appellant and Mui respectively on counts 5 and 7 that is sufficient to engender a justifiable sense of grievance on the appellant's part: Lowe v The Queen (1984) 154 CLR 606, 609 ‑ 610 (Gibbs CJ), 613 ‑ 614 (Mason J), 623 (Dawson J).
The difference of 1 year's imprisonment on each cultivation charge is adequately explained by the finding to which I have referred. Still less could the disparity between the total sentences respectively imposed on Mui and the appellant give rise to any justifiable sense of grievance on the appellant's part given that two of the offences of which he was convicted (possession with intent) were more serious than two of the offences of which Mui was convicted (simple possession).
9That brings me to the disparity between the sentences imposed on Dong and the appellant. There is a significant difference between the total of 3 years and 8 months' imprisonment imposed upon Dong in respect of counts 1 to 5 and 7, on the one hand, and the total of 10 years' imprisonment imposed on the appellant in respect of counts 1 to 8, on the other, taking into account that the only additional offences committed by the appellant were the two offences of possession of cannabis with intent to sell or supply. Also, the appellant pleaded guilty to all counts whereas Dong pleaded guilty only to the two cultivation counts (and she did so at a later stage than the appellant) and to the less serious heroin count (in respect of which her plea was made only at the commencement of the trial). Dong was convicted after a trial on the remaining counts. However, there were substantial differences between the two offenders as regards their respective degrees of criminality. Also, their antecedents were different.
10I will deal first with the issue of antecedents. The appellant has a substantial criminal record involving drug offending. The details appear in the judgment of Miller JA. On the other hand, the 26‑year‑old Dong had no criminal record. There is otherwise little of significance to distinguish between them.
11As to the level of offending, Dong (who, as I have said, was the appellant's girlfriend) was found to have played a significantly lesser role than the appellant. The sentencing judge in her case, French DCJ, accepted that she had not been involved in the 'business in relation to the drugs' the subject of counts 1 to 4, but that she 'knew what was going on' and was 'at least content or prepared to be supported in some way or another financially as a result of the proceeds from these drugs'. Her only active involvement in respect of the drugs the subject of counts 1 to 4 was found to have been her purchase of a street map in order to 'assist in [the] enterprise' and the fact that she agreed to pack her belongings in a case containing the drugs. Her level of assistance as regards the two cultivation offences (cannabis had been cultivated in two separate houses) was found to be low. The prosecutor conceded that she had been a 'low level aider' of the appellant in this respect. She assisted in maintaining the appearance that one of the houses in which cannabis was cultivated was lived in and she had arranged for electricity to be supplied to the second house. She also handled two items used in the installation of the cannabis‑growing equipment, seemingly in the course of unpacking them. However, she played no part in the installation of that equipment and she had been given no access to the rooms in which the cannabis was grown in each of the two houses. French DCJ found that, for cultural and other reasons, Dong was, to some extent at least, 'more compliant' with what her boyfriend was doing and also more likely 'to take no steps to distance [herself] from what [the appellant] was doing'.
12So far as the four drug offences the subject of counts 1 to 4 are concerned, it seems to me that, even given her much lesser role than that played by the appellant, Dong was very fortunate to receive the sentences imposed upon her. They were lenient, given the nature and quantity of the drugs involved. That is especially so when regard is had to the fact that she pleaded guilty, at a very late stage, only to the least serious of those offences. The total sentence of 2 years and 8 months' imprisonment imposed upon her can only be described as remarkably lenient, given the totality of her offending behaviour, even taking into account her limited role. Whatever else may have been the position, she must have known of the nature and extent of the appellant's offending and was nevertheless prepared actively to assist him in concealing the drugs and delivering them to their intended recipients. However, the total sentence of 4 years' imprisonment imposed upon the appellant was similarly lenient. Given the lesser role played by Dong, and the appellant's influence over her, I am not persuaded that the discrepancies between the sentences imposed in respect of counts 1 to 4 were so great, either individually or totally, as to give to the appellant any justifiable sense of grievance.
13A comparison between the sentences imposed on the two cultivation offences gives rise to greater difficulty. As I have said, the appellant was sentenced to terms of 3 years' imprisonment whereas Dong was sentenced only to terms of 1 year's imprisonment. The discrepancy is substantial. Both pleaded guilty to the two cultivation offences. The distinguishing features are the lesser role played by Dong and the fact that, unlike the appellant, she had no criminal record. As to the former, I have said that the appellant was a prime mover in the enterprise. He played a significant role in obtaining and setting up the growing equipment, he played a major role in the cultivation itself and he was to be one of the principal beneficiaries from the proceeds of sale. Dong, on the other hand, had only the limited role to which I have referred and was actively excluded from the growing area.
14Even allowing for the substantial difference in the roles played by the two offenders, and their different antecedents, the disparity in the sentences imposed is difficult to justify, in my respectful opinion. Dong must have known of the nature and extent of the cultivation of the cannabis. She was nevertheless prepared to lend her aid to the enterprise. Her aid may have been limited, but it was active. As I have said, she helped create an appearance (on a number of occasions) that one of the two houses was occupied and arranged for the supply of electricity to the other. She was also party to the unpacking of at least some of the necessary equipment, having handled at least two of the items. Moreover, as the appellant's girlfriend, Dong must have expected to benefit indirectly from the proceeds of the enterprise.
15The disparity between the total sentences imposed on Dong and the appellant, respectively 10 years (15 years pre‑transitional) and 3 years and 8 months (5 years and 6 months pre‑transitional) is even more difficult to justify. The disparity (9 years and 6 months pre‑transitional) seems to me to be excessive even allowing for the difference in the roles played by each, their different antecedents and the fact that the appellant was convicted of two additional offences. The difference is exacerbated when regard is had to the fact that Dong was convicted of three of the offences only after trial (and made a late plea on a fourth) whereas the appellant pleaded guilty to all counts.
16Of course, as Miller JA has pointed out, a finding of disparity is not necessarily determinative. It is open to an appellate court to conclude that, when the more severe sentence is already as lenient as it could sensibly be, having regard for the need to protect the public and the dictates of the public conscience, that there should be no justifiable sense of grievance in declining to interfere with that sentence on parity grounds merely because another sentence is even more lenient: I v The State of Western Australia [2006] WASCA 9 [66]; Hassan v The State of Western Australia [2006] WASCA 139 [19]; Parfitt v The State of Western Australia [2007] WASCA 11 [19] ‑ [20], [49] and Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] ‑ [12].
17In the present case it seems to me that, although the terms of 3 years' imprisonment imposed on the appellant in respect of the two cultivation offences, and the total term of 10 years' imprisonment imposed upon him in respect of the whole of his offending, are within an acceptable range of discretion for offences of that kind (see Day v The Queen [2001] WASCA 284; (2001) 127 A Crim R 403 and Noble v The Queen [2003] WASCA 83, each of which is discussed in Miller JA's reasons), it cannot be said that those sentences are already as lenient as could sensibly be imposed. In all of the circumstances, the disparity in sentencing as between the appellant and Dong seems to me to be sufficient to give rise to a justifiable sense of grievance. It consequently seems to me that the applicable principles (more fully referred to in the judgment of Miller JA) require that there be some reduction in the sentences imposed on the appellant. In my opinion, an appropriate reduction would be one of 9 months' imprisonment in respect of each of the sentences imposed in regard to the cultivation offences. I would consequently substitute for the sentences of 3 years imposed upon the appellant on each of counts 5 and 7, sentences of 2 years and 3 months' imprisonment. I would otherwise leave the orders made by the sentencing judge undisturbed.
Grounds 2 and 3
18As to ground 2, I agree with Miller JA, for the reasons that he has given, that the sentencing judge made no error of principle in ordering that the sentences imposed on counts 5 and 7 be served fully cumulatively upon each other.
19As to ground 3, because I have already come to the conclusion that the total sentence imposed on grounds 5 and 7 should be reduced by 18 months, it seems to me that the totality argument must fail. It cannot sensibly be contended that a total term of 4 years and 6 months' imprisonment offends either limb of the totality principle (as to which see Postiglione v The Queen [1997] HCA 26; (1996) 189 CLR 295, 307 ‑ 308 (McHugh J); Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [26] (McLure JA)). As I have said, the cultivation, in each case, was very significant, with the total value of the crops grown being somewhere in the order of $648,000.
Ground 4
20That leaves only ground 4. Counsel for the appellant knew, at the time of sentencing, that the factual basis advanced by him in respect of the appellant's possession of the drugs the subject of counts 1 to 4 was not accepted by the prosecutor. The prosecutor made his position clear in this respect, as appears from the passage from the transcript quoted by Miller JA. Counsel for the appellant also knew, or at least should have known, that the factual basis advanced by him in this respect would not necessarily be accepted by the trial judge. The trial judge's position seems to me to have been sufficiently clearly expressed (to the extent that he needed to express it at all) by his comment, having heard from the prosecutor, that he would 'weigh these matters in due course'. Faced with
those indications, it seems to me, counsel for the appellant was sufficiently put on notice that his assertions from the bar table were not accepted by the prosecutor and might not be accepted by the sentencing judge. The appellant's counsel, an experienced Queen's Counsel, should consequently have been aware that, if he wished to establish what were plainly matters in mitigation, he was obliged to call evidence in support of them: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, 281; Hutchins v The State of Western Australia [2006] WASCA 258 [25]. He made no effort to do so, perhaps for sound tactical reasons.
21In the circumstances, I do not consider that this ground has been made out.
Conclusion
22I would allow the appeal only as regards the parity ground, to the extent that it concerns the sentences respectively imposed upon the appellant and Dong. I would reduce the sentences imposed upon the appellant on each of counts 5 and 7 by a period of 9 months, resulting, in each case, in a sentence of 2 years and 3 months' imprisonment. I would otherwise leave the sentences imposed upon the appellant, and the orders for cumulation and concurrency, undisturbed. That would result in a total sentence of 8 years and 6 months' imprisonment (or a little under 13 years' imprisonment, before taking into account the transitional provisions). That term would take effect from 30 May 2007. The appellant would remain eligible for parole.
23McLURE JA: I have had the advantage of reading the reasons for judgment of the President and Miller JA.
24I agree, for the reasons they give, that there is no disparity between (1) the individual sentences and the total sentence imposed on the appellant and Mui Ngan and (2) the individual sentences imposed on the appellant and Ngoc Xuan Dong (Dong) in respect of offences numbered 1 to 4 in the comparative table attached to these reasons (the table).
25As to the cultivation offences (numbered 5 and 7 in the table), Dong received a sentence of 12 months' imprisonment on each count and the appellant a sentence of 3 years' imprisonment on each count. The question in issue is whether the difference in the individual sentences is a reasonable consequence of differences in the degree of culpability, personal circumstances or other relevant sentencing considerations of each offender. If the difference in sentence is a reasonable consequence of different relevant factors, there can be no justifiable sense of grievance.
26Dong received one‑third of the sentence imposed on the appellant for the cultivation offences which in my view is a reasonable consequence of different sentencing considerations. Both the appellant and Dong pleaded guilty to the cultivation offences. In sentencing Dong, French DCJ accepted the State submission that Dong was a low level aider in the cultivation of the cannabis in an enterprise in which the appellant was a principal. There was a similar difference in their relative positions in respect of offences numbered 1 to 4. Further, the appellant had a very significant prior record of drug offending, including convictions for trafficking. Dong had no prior convictions. In sentencing drug offenders, significant weight is given to the need for general deterrence with the consequence that the absence of prior convictions and other indicators of good character are given less weight than would ordinarily be the case. However, that is not so where the offender has a prior record of drug convictions. The prior record indicates a need to give considerable weight to personal deterrence and the protection of the public from the offender. As a consequence, all other things being equal, a person with a prior record of drug convictions will receive a higher sentence than a co‑offender. These differences justify the disparity in sentences for the cultivation offences.
27The next parity issue is whether the appellant has a justifiable sense of grievance when the total effective sentences are compared. It is not suggested that the parity principle has no application to the total sentence. The submissions put on behalf of the appellant focus on the orders for cumulation and concurrence in relation to the cultivation offences. When considering parity it is, in my respectful view, erroneous to focus on individual orders for cumulation and concurrence as they relate to any particular offence. It is the case that there are general rules that affect whether, on a prima facie basis, sentences for multiple offences should be served cumulatively or partly concurrently (see Pearce v The Queen (1998) 194 CLR 610; R v Faithfull (2004) 142 A Crim R 554 [21] ‑ [28]). However, these general rules are always subject to the totality principle. When sentencing for multiple offences, the sentencing court must apply the totality principle which requires, among other things, the total effective sentence to be a just and appropriate measure of the total criminality involved in the conduct as a whole: Postiglione v The Queen (1997) 189 CLR 295. The practical effect of the totality principle is ordinarily to arrive at a total sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder (1983) 3 NSWLR 245, 260. Once the sentencing judge has determined on what is to be the appropriate total sentence for
multiple offences, the orders for cumulation, concurrence or partial concurrence are affected by the practical need to achieve the mathematical outcome. The judge sentencing the appellant might just as well have ordered that the sentences for the offences numbered 1, 3 and 6 in the table be served cumulatively and the balance concurrently. The consequence of the application of the totality principle is that the only relevant comparison for parity purposes is the total effective sentence for all of the offences, not the total sentence for a subset of the offences. The same reasoning justifies the dismissal of grounds of appeal 2 and 3.
28It is relevant to note that in relation to the offences to which Dong pleaded not guilty (offences numbered 1, 3 and 4 in the table) she received a sentence that was two‑thirds the sentence imposed on the appellant. However, the total sentence of 3 years and 8 months imposed on Dong is just over one‑third of the total sentence of 10 years imposed on the appellant. The explanation for this is that, in addition to the different factors justifying the lesser individual sentences, there is a further factor affecting totality. The appellant was convicted of two additional offences being possession with intent to sell or supply cannabis totalling 10.18 kg for which he was sentenced to 2 years on each count. In my view, the difference in the total sentences is a reasonable consequence of different sentencing factors and cannot give rise to a justifiable sense of grievance.
29For these reasons, I would dismiss grounds 1, 2 and 3. Ground 4 should be dismissed for the reasons given by the President. Accordingly, I would dismiss the appeal.
30MILLER JA: The appellant was indicted on eight drug offences. Counts 1 to 4 on the indictment alleged possession with intent to sell or supply various narcotic drugs, in possession of which the appellant was found on 30 May 2007. The drugs were respectively heroin (a large quantity), heroin (a small quantity), methylamphetamine and 4‑Bromo‑2, 5‑ dimethoxyphenethylamine, commonly known as BDMPEA.
31Counts 5 and 6 on the indictment alleged that, between 19 April 2007 and 30 May 2007, at Kelmscott, the appellant cultivated cannabis with intent to sell or supply it to another and had in his possession cannabis with intent to sell or supply it to another. Counts 7 and 8 on the indictment alleged that, between 11 May 2007 and 30 May 2007, at Westfield, the appellant cultivated cannabis with intent to sell or supply it to another and had in his possession cannabis with intent to sell or supply it to another.
32The appellant pleaded guilty to all offences on the 'fast‑track'. He was committed to the District Court for sentence and extensive submissions were put before the court on 20 June 2008. He was sentenced on 31 July 2008, along with his mother, Mui A Ngan. The sentences imposed upon the appellant total 10 years in the aggregate, made up as follows:
Count 14 years' imprisonment
Count 22 years 6 months' imprisonment
Count 34 years' imprisonment
Count 43 years' imprisonment
Count 53 years' imprisonment
Count 62 years' imprisonment
Count 73 years' imprisonment
Count 82 years' imprisonment
The sentences imposed on each of counts 1 to 4 were ordered to be served concurrently with the sentence imposed on count 1. The sentences imposed on counts 5 and 7 were ordered to be served cumulatively, but the sentences imposed on counts 6 and 8 were ordered to be served concurrently with the sentence imposed on count 5.
33The sentencing judge ordered that the sentences imposed in relation to counts 1 to 4 should be served cumulatively on the sentences imposed on counts 5 to 8, with the result that the aggregate sentence was 10 years' imprisonment. An order was made for eligibility for parole.
The facts
Counts 1 ‑ 4
34On 30 May 2007, the appellant was found with his girlfriend, Nook Swan Dong, in a stationary motor vehicle at Morley Galleria shopping centre. Police approached the vehicle (in which the appellant was seated in the driver's seat) and identified themselves. The appellant got out of his vehicle, gave his name, and said that he was in Perth from Melbourne. He said he had been here for two months and had been living in his vehicle. When challenged by police about where he was actually living, the appellant ran off. He was chased for between 100 to 150 metres before being caught and returned to his vehicle.
35A police search of the vehicle revealed that in the boot, there was a black travel bag containing male and female clothing. Underneath that clothing, police found 113 g of rock heroin of 14% purity, 207.4 g of methylamphetamine of 21% to 33% purity and 1,004 tablets of 4‑Bromo‑2,5‑ dimethoxyphenethylamine (BDMPEA) weighing 253 g. The BDMPEA content of these tablets amounted to 4%. BDMPEA is a close relative of MDMA (ecstasy). Possession of 0.05 g or more of BDMPEA gives rise to a presumption of intent to sell or supply.
36A police search of the handbag of the appellant's girlfriend revealed a plastic clipseal bag containing 23 g of heroin of 26% purity.
37In the travel bag found in the boot of the appellant's vehicle, police found $16,850 in cash. In the appellant's wallet, they found $450 in cash. This wallet was in the handbag of the appellant's girlfriend.
38The appellant was interviewed by police at the location where he was apprehended. He declined to answer any questions about the drugs found in his possession, other than to say that he was a user of drugs.
39The value of the drugs was as follows: the heroin was valued at $60,000 if sold as it was seized, but, of course, it was capable of being cut down which would increase its street value. The methylamphetamine was valued at $48,000. The BDMPEA was valued at $18,000 if sold at $18 per tablet - although it was said that it could be sold for as much as $40 per tablet, depending upon demand.
Counts 5 ‑ 8
40In the course of their inquiries, police conducted an operation into the activities of a group of Vietnamese people believed to be involved in the cultivation of commercial hydroponic cannabis crops in various houses around the metropolitan area. Two houses were identified. They were at 27 Lindy Way, Westfield, and 65 Westfield Road, Kelmscott.
41Surveillance of the properties by police identified a number of people, including the appellant, his mother, Mui Ngan, one of his brothers, Ngan Nguyen, and his girlfriend, Ngoc Xuan Dong. All of these persons were later charged with offences relating to the cultivation of cannabis and either possession of, or possession with intent to sell or supply cannabis.
42The Kelmscott property was owned by one of the appellant's brothers. The appellant and his family resided in Victoria, but had come to Perth allegedly for the purpose of establishing commercial hydroponic cannabis growing operations. Mui Ngan lived at the Westfield house and maintained and tended the cannabis plants in the house. She also visited the Kelmscott house and maintained and tended plants there.
43The appellant was observed by police to regularly attend both houses. A covert surveillance camera filmed him inside the Kelmscott house. This house was unoccupied and kept solely for the purpose of cultivating cannabis within it. It had an outward appearance of being lived in, designed to deter potential thieves or squatters from entering it. There were fans and large lamps which operated through the day. They accelerated the growth of plants. They were powered by power‑boards connected to cabling which ran through holes cut into the ceiling. They were, in turn, connected to large banks of transformers in the laundry. The same setup was found at the Westfield house.
44There was large black plastic sheeting affixed to the windows of each house to prevent anybody from seeing in. There was black plastic sheeting in the doorway to each room in which cannabis was being grown, the purpose being to create a humid atmosphere and encourage growth of the cannabis. Sophisticated fertiliser apparatus was located at both properties and, at the Westfield house, the bathtub was full of a reddish‑brown liquid, which appeared to be fertiliser. The plants in each house were watered by a system which came from the laundry.
45At the Kelmscott house, police found 124 healthy, large plants under cultivation and a total of 2.38 kg of loose‑leaf cannabis and stem material. At the Westfield house, police found 148 plants and 7.8 kg of dried loose‑leaf stem and plant material.
46Police estimates were that, at the Kelmscott house, the 124 plants would yield approximately 37 kg of cannabis, with an approximate crop value of $296,000. The same estimates were made in relation to the Westfield house, where it was considered that the plants found would yield 44 kg of cannabis material worth approximately $352,000.
47The prosecutor contended at the sentencing hearing that police were of the opinion that three crops could be obtained each year from the plants which were found at each location, with the result that if at each house there were such a number of crops each year, upwards of $1,000,000 would be generated in returns.
History of proceedings
48The appellant pleaded guilty to all counts on the indictment he faced on the morning of 20 June 2008. At that time, it was anticipated that there would be two trials. The first would be of Ms Dong, who was to be tried on 1 July and the second was to be a joint trial of Ngan Nguyen and Dong to commence on 28 July 2008.
49On the afternoon of 20 June 2008, Mui Ngan pleaded guilty on indictment 1753 of 2007. This indictment alleged four offences against Mui Ngan. Count 1 alleged that, between 11 April 2007 and 30 May 2007, at Westfield, she cultivated cannabis with intent to sell or supply. Count 2 alleged that, on 30 May 2007, she had in her possession cannabis with intent to sell or supply. Count 3 alleged that, between 19 April 2007 and 30 May 2007, she and others cultivated cannabis with intent to sell or supply at Kelmscott. Count 4 alleged that, on 30 May 2007, at Kelmscott, she had cannabis in her possession with intent to sell or supply. On 20 June 2008, the prosecution accepted, in full satisfaction of counts 2 and 4, pleas of guilty to simple possession of cannabis. Submissions were then made to the sentencing judge and so it was that, on 13 August 2008, the sentencing judge dealt with both the appellant and Mui Ngan.
50Ngoc Xuan Dong (Dong) was charged on two separate indictments. The first indictment alleged cultivation of cannabis, with count 1 alleging cultivation of cannabis at Westfield between January and May of 2007 and count 2 alleging cultivation of cannabis at Kelmscott during the same period. To both of these counts, Dong pleaded guilty in the District Court at Perth on 28 July 2008.
51There was a second indictment (separated from the first because Dong pleaded not guilty) in which Dong was charged with the same offences as counts 1 to 4 on the indictment faced by the appellant. They were: (1) possession of intent to sell or supply of 113 g of rock heroin of 14% purity; (2) possession with intent to sell or supply of 23 g of heroin of 26% purity; (3) possession with intent to sell or supply of 207.4 g of methylamphetamine of 21% to 33% purity; (4) possession with intent to sell or supply of 1,004 tablets of BDMPEA.
52Dong went to trial on these four counts, but, at the commencement of the trial, she entered a plea of guilty to count 2. This was the count which alleged possession of the small quantity of heroin which had been found in her handbag.
53Dong was convicted after trial in relation to the other counts on the indictment. She was sentenced by French DCJ on 13 August 2008 to an aggregate term of imprisonment of 44 months, backdated to 30 May 2007, with eligibility for parole. On count 1, she was sentenced to 22 months' imprisonment; on count 2, 16 months' imprisonment; on count 3, 32 months' imprisonment; and count 4, 2 years' imprisonment. All sentences were to be served concurrently.
Sentencing of appellant
54The sentencing judge first recited the facts of the case. He also documented the history of the proceedings, detailing which indictments had been preferred against the various persons accused of offences arising out of the discovery of the hydroponic cannabis cultivations and also the apprehension of the appellant and Dong at Morley Galleria. It is only necessary, for the purposes of this appeal, to consider the outcome of those proceedings against this appellant, Mui Ngan and Dong. As the sentencing judge dealt with both the appellant Mui Ngan on the same day, I will detail later in these reasons how Mui Ngan was treated. I will also make reference to the sentencing of Dong by French DCJ on 13 August 2008.
55The sentencing judge made detailed reference to the personal circumstances of the appellant. Those circumstances were primarily contained in a pre‑sentence report dated 11 February 2008 and a psychological report of Leonie W Coxon, dated 26 April 2008.
The pre‑sentence report
56The pre‑sentence report first dealt with the appellant's 'court history'. It was noted that he had no previous convictions in Western Australia, but had a number of convictions in Victoria.
57The appellant's criminal record, which is attached to the pre‑sentence report, reveals a number of traffic‑related convictions, convictions for unlawful assault and intentionally causing injury, and a conviction for failure to comply with an ICO (intensive corrections order). In addition, there are multiple drug convictions. They commence with convictions in the Williamstown Magistrates Court on 27 June 1997, when the appellant was convicted of trafficking in heroin, possessing heroin and using heroin. He was sentenced to 4 months' imprisonment to be served by way of an ICO on the charge of trafficking heroin; to 3 months' imprisonment on each of two counts of possessing heroin (suspended for 24 months); and 1 month's imprisonment for using heroin (again suspended for 24 months). Each of the sentences of imprisonment was ordered to be served concurrently.
58The appellant was called before the Sunshine Magistrates Court on 14 August 1997 on further charges of trafficking in heroin and possessing heroin. There was also a charge of resisting police, or a person assisting police. He failed to appear and a warrant was issued for his arrest.
59The appellant then appeared in the Melbourne Magistrates Court on 25 June 1998, apparently in response to a bench warrant which was issued on 14 August 1997. He was sentenced to 2 months' detention in a youth training centre for failing to answer bail. His ICO of 27 June 1997 was ordered to be continued in relation to a breach of that order, and he was sentenced to 2 months' detention in the youth training centre on each of trafficking in heroin and resisting police, or a person assisting police.
60On 18 August 2000, the appellant appeared in the Melbourne Magistrates Court on charges of possessing heroin, possessing property being the proceeds of crime and trafficking in heroin. The last of these charges was withdrawn, but, on the first two charges, the appellant was sentenced to 3 months' imprisonment, to be served concurrently. Other consequential orders were made in relation to forfeiture of drugs and money.
61On 26 March 2002, the appellant appeared in the Sunshine Magistrates Court on a number of drug‑related and other charges. He was charged with trafficking in heroin (two counts), possessing heroin (two counts), possessing cannabis, refusing or failing to state his name and address, possessing money being the proceeds of crime and a number of traffic matters. On each of the drug offences, and on the offences of refusing or failing to state his name and address and possessing money being the proceeds of crime, he was sentenced to 3 months' imprisonment, to be served concurrently. It appears from the record that he was also given a community‑based order (CBO) for 3 months on each of the drug offences and the charges of refusing or failing to state his name and address/possession of money being the proceeds of crime, with the CBO to commence on 28 June 2002. It was accompanied by conditions which included a requirement to do 70 hours of unpaid work, and to undergo various assessments.
62The pre‑sentence report dated 11 June 2008 deals with the appellant's previous response to supervision. It reveals that his response has been poor. He failed to comply with the ICO in 1997 and with the CBO of 2002. He had four outstanding arrest warrants in Victoria.
63The summary to the pre‑sentence report suggests that the appellant relocated to Perth from Melbourne with his family in 2007 'to escape his association with negative peers in an attempt to abstain from further illicit substance abuse'. It is concluded that the appellant has struggled with illicit substance abuse for the last 10 years, specifically heroin, and he has received little by way of programmatic intervention to address his illicit substance abuse due to his non‑compliance with two prior community‑based dispositions.
64An earlier pre‑sentence report dated 11 February 2008 (specifically written in relation to the various charges which are the subject of the indictment) concluded:
Throughout the interview Mr Nguyen minimised his role in both the cultivation of cannabis and the supply of illicit substances, for which he has been charged and could offer no explanation as to how he came to be in possession of a significant amount of money, given his unemployment. Mr Nguyen however expressed remorse for his role in the offences, stating that he now knows what he did was wrong and that he is prepared to be punished accordingly. He self reported an addiction to heroin which has spanned some eleven years, however claimed to be coping well since his withdrawal from illicit substance use.
Psychological report
65The psychological report of Ms Coxon traces the appellant's background. He is of Vietnamese origin with a limited understanding of English. Because a Vietnamese interpreter was required for the purpose of the interview, there were difficulties involved in translation and in testing.
66The appellant is 27 years of age and one of five children of his deceased father and his mother, Mui Ngan. He was educated in Vietnam until the age of 10, but then left Vietnam with his mother and older sister, ending up in a Hong Kong refugee camp. He lived in this refugee camp for four years, until the age of 14. He described it as like 'living in a prison'.
67At the age of 14, the appellant and his family were able to move to Australia. Shortly after his arrival, he commenced education at Perth Modern School. He was at that school for a year before his family moved to Victoria, and he was transferred to a high school in Melbourne. The appellant told Ms Coxon that he then began associating with a number of peers who were using illicit drugs and he was introduced to those drugs at the age of 17 years. Over several months he became increasingly dependent upon illicit drugs and ended up leaving school because he was no longer interested in education. Thereafter, he mainly used heroin, initially smoking it and then using it intravenously. He also used marijuana. Any attempts to cease drug use failed and eventually he descended to a point where he was using heroin three times a day. This use was described by Ms Coxon as 'severe'.
68The appellant said that he had always worked for his mother, who was involved in sewing and assembling clothing garments. As well as being dependent upon his mother for employment, the appellant said that he was dependent upon her for accommodation. He had lived with his mother for most of his life, even during a four‑year period when he was in a de facto relationship. From this relationship there was a child, now 9 years of age. Since 2005, the appellant has been in a relationship with Dong.
69The appellant told Ms Coxon that he had come to Perth to get away from 'drug using peers' and to attempt to cease drug use. Initially, he lived with his girlfriend at his sister‑in‑law's house, but a number of his family and friends in Perth were involved in drug production, and he was asked by his mother to help her set up cannabis cultivation equipment. He said that he helped his mother move equipment that was too heavy for her to manage. He said that this meant that he was unable to cease his heroin use. His sister‑in‑law realised that he was still using drugs and asked him to leave her home, which he did. The appellant said that he then lived in his car with his girlfriend for the two weeks prior to his arrest. He claimed that he had been asked by a nightclub contact to look after a large amount of illegal drugs in return for money. These were the drugs which he said were found in his car at the time of his arrest. He said that the heroin in Dong's handbag was heroin for his personal use. He claimed that the money which was found on him included $10,000 his mother had given him to go back to Melbourne to undertake a drug rehabilitation programme, and $6,000 which he had won two days beforehand at the casino. He said that he had been intending to return to Victoria within a few days of his arrest.
70Psychometric assessment of the appellant revealed results which were listed as low state anxiety, moderate trait anxiety, minimal stress and moderate depressive symptoms.
71Ms Coxon's conclusion and recommendations include the following: (1) the appellant's drug use is functional, inappropriate and dangerous and various physiological and psychological addictive needs must be addressed for any treatment to be successful; (2) his drug dependence and motivation to maintain a constant supply of heroin for personal use are primary factors in his criminal behaviour; (3) the appellant is dependent upon his mother and unlikely to refuse her request for assistance, even when those requests relate to unlawful behaviour; and (4) the appellant's association with antisocial peers encourages criminal behaviour.
72The psychological report can only be described as favourable to the appellant. It is perhaps unduly favourable, because it is largely reliant upon the appellant's own statements. For example, the appellant told Ms Coxon that he had attempted to cease using drugs on a number of occasions with limited success. Ms Coxon concluded that the appellant had a desire to cease drug use, and this was a positive factor for rehabilitation purposes. She concluded that he had been drug‑free for almost 12 months due to incarceration and although he had requested a drug rehabilitation course this had not occurred to date. She concluded that, because he was working in the kitchen area at the prison, he might be successfully trained as a cook and with improvement in English language skills he 'despite his failings ... has attempted to take steps to improve his life'.
Sentencing judge's conclusions
73The sentencing judge refused to accept the appellant's explanation to Ms Coxon about the source of the moneys he was holding when arrested. His Honour noted that no such explanation was proffered to the author of the pre‑sentence report on 11 April 2008. He concluded that the explanation of provision of moneys by his mother and winnings at the casino was 'in all the circumstances implausible'.
74The sentencing judge accepted that the appellant had a longstanding heroin addiction. He concluded from the appellant's record that he had, for some considerable time, been involved in drug dealing. He did not accept the appellant's explanation as to how he came to be in possession of the drugs found in his vehicle at Morley Galleria, saying:
The explanation to the effect that he was holding drugs for a person that he had met some days before for the purpose, only, of delivering to various people at various places in Perth - in circumstances where no money would change hands - is about as fanciful or implausible as the explanation proffered for the presence of the very substantial amount of cash.
I propose to sentence Hao Quong Nguyen on the basis that he was, when detained in the Morley Galleria shopping centre, in the business of dealing in the drugs found for commercial purposes and that the cash found was substantially derived from that dealing.
75The sentencing judge concluded that the appellant and Mui Ngan should be sentenced on the basis that they were involved in a joint enterprise, together with other family members, in the cultivation of hydroponic cannabis for sale. He described the project in which they were involved as elaborate and sophisticated and for the commercial product and sale of cannabis. His Honour did not accept that Mui Ngan was the organiser or manager of the joint enterprise, concluding that she was clearly involved in day‑to‑day cultivation, but effectively a caretaker, looking after the mechanisms for water, climate control and fertiliser. His Honour added:
I'm not able to say who was the principal organiser or manager of this project. Mr Scholtz [sic Scholz] suggested that Mui Ngan was the matriarch of a Vietnamese family joint enterprise. One of the two houses was owned by her elder son. It was not suggested that she had undertaken the elaborate electrical and technical work involved in setting up the hydroponic project; she was, he said, involved in the day‑to‑day nurturing at the house in which she lived. [The prosecutor] submitted that it was not credible to suggest that she had been prevailed upon by others or that she was cultivating cannabis for the purpose of bringing an end to ... Hao Quong Nguyen's addiction.
I make no finding as to the former proposition, but do not accept the latter. I fail to see the connection between the establishment of the hydroponic project at the two houses and Hao Quong Nguyen's addiction. I regard that proposition as being incredible.
In all the circumstances, it does seem to me to be more likely that Mui A Ngan might have less to gain from the project than others. There is no suggestion that she herself suffers from addiction. There is some suggestion, albeit rather vague, of a gambling problem. The extent of that, if it exists at all, is not known.
76The sentencing judge said that personal circumstances were subsumed to the requirement for general deterrence in the sentencing of the appellant. Reference was made to the damage done to the community by drugs, including methylamphetamine and heroin, and to a growing body of evidence in relation to a link between persistent use of cannabis and the development of mental health problems.
77The sentencing judge pointed out that Mui Ngan was convicted of two counts of simple possession of substantial quantities of cannabis leaf and stem material, and the prosecution having accepted her pleas in that respect clearly accepted that she was not in possession of substantial quantities of cannabis with intent to sell or supply. The appellant, on the other hand, had been convicted of both possession with intent to sell or supply and cultivation with intent to sell or supply. The penalties to be imposed on him would, therefore, need to be substantially higher than those imposed upon his mother.
78In sentencing the appellant, the sentencing judge took account of the totality principle, stating that the combination of penalties 'must not be crushing' and that he was required to have regard to the totality principle. His Honour considered that possession with intent to sell or supply of the various drugs meant that possession of each of the drugs in question represented 'a separate occasion of potential harm to the community'.
Grounds of appeal
79There are four grounds of appeal. Leave to appeal has been granted on grounds 1 and 4, but leave to appeal has been referred to this court for determination on the hearing of the appeal in relation to counts 2 and 3. The grounds (without particulars in relation to ground 4), as amended, are as follows:
Ground 1
The sentence imposed on the Applicant was excessive in all the circumstances of the case as it lacked parity with the sentence imposed on the co‑offenders, Ngoc Xuan Dong and Mui Ngan.
Ground 2
The learned sentencing judge erred by ordering the sentence imposed on Counts 5 and 7 be served fully cumulatively upon each matter.
Ground 3
The learned sentencing judge erred by failing to adequately have regard to the principle of totality in making the sentence imposed on counts 5 and 7 fully cumulative on the sentence imposed on Counts 1
, 2, 3 and 4.Ground 4
The learned sentencing judge erred by imposing sentence on a factual basis which was unfavourable to the Applicant and which had been put in issue by the Applicant's counsel at the time sentence submissions were made.
Ground 1
80This ground raises the issue of parity of sentence as between the appellant, Mui Ngan and Dong.
81The principle requiring parity of sentencing between offenders is dealt with in Lowe v The Queen (1984) 154 CLR 606. Gibbs CJ said, at 609:
The true position in my opinion may be briefly stated as follows. It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account.
82Gibbs CJ referred to s 668E of the Criminal Code (Qld) (see s 31(4)(a) Criminal Appeals Act 2004 (WA)), which, at the relevant time, gave to the Court of Criminal Appeal the power to quash a sentence and substitute another if it was of the opinion that some other sentence, whether more or less severe, was warranted in law and should have been passed. Gibbs CJ then added:
The same or similar words appear in the statutes of the other Australian States, and they are wide enough to empower the court in its discretion to reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co‑offender. It may be said that the very existence of the disparity reveals that an error must have been committed, but I would prefer frankly to acknowledge that the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done. The decision whether the existence of a disparity calls for intervention is a matter which lies very much within the discretion of the Court of Criminal Appeal. (609 ‑ 610)
83Mason J said, at 613 to 614:
[A] brief review of the authorities raises two questions. The first is: is discrepancy a ground for intervention in itself or is it merely indicative of undisclosed error in the sentencing process? Logic and reality combine to compel an answer in favour of the first alternative. The undisclosed error, as we have seen, may have occurred in the sentencing process as it affected the co‑offender. The sentence under appeal may be free from error except in so far as discrepancy itself constitutes or causes error. And the justification which the courts assign for intervention in the case of disparity is that disparity engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander.
What I have already said provides an answer to the second question: what is the correct principle to be applied in cases of discrepancy? It is that a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate.
84Dawson J said, at 623:
There is no rule of law which requires co‑offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for. But justice should be even handed and it has come to be recognized both here and in England that any difference between the sentences imposed upon co‑offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been don [sic done].
85These passages from Lowe state the general principle, but must be read subject to the observations of this court in a number of cases where it has been held that the principle of parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offences in question. In Billing v The State of Western Australia [No 2] [2008] WASCA 11, Steytler P (at [11] ‑ [12]) summarised the effect of those cases in the following way:
In 'I' [I v The State of Western Australia [2006] WASCA 9], which has since been applied in Hassan v The State of Western Australia [2006] WASCA 139 [19] (McLure JA, Roberts‑Smith & Pullin JJA agreeing) and in Parfitt v The State of Western Australia [2007] WASCA 11 [19] - [20] (McLure JA) and [49] (Pullin JA, with whom Roberts-Smith JA agreed), I said (with the agreement of McLure JA) [66]:
In considering the application of the parity principle, sight should not be lost of the community interest in seeing offenders appropriately punished. The imposition of an excessively lenient sentence on one co-offender does not have the automatic consequence that a similar error should be made in the case of another. While parity might require a sentencing Judge to be more lenient than he or she might otherwise have been, it does not require a sentencing Judge to be so lenient as to shock the public conscience by imposing a sentence which is entirely disproportionate to the offence.
Then, after considering some of the cases (I will not repeat what I said in respect of them), I went on to say [68]:
Consequently, it is open to an appellate court to conclude, in a case in which a co-offender has been inadequately sentenced, that to establish parity might 'compound the error in a way which would be unacceptable to the public conscience': R v MacGowan (1986) 42 SASR 580 at 583 per King CJ, Mohr and von Doussa JJ agreeing. When the more severe sentence is one which is already as lenient as could sensibly be imposed, having regard for the need to protect the public and the dictates of the public conscience, it is hard to see why there should be any 'justifiable' sense of grievance on the part of the offender.
Dong
86The appellant first contends that he has a justifiable sense of grievance about the sentence imposed upon him when it is compared with that imposed upon Dong.
87As I have previously pointed out, Dong was dealt with by French DCJ on 13 August 2008. She was sentenced to an aggregate term of 3 years 8 months, being 24 months in relation to the offences of possession with intent to sell or supply of the various drugs located in the vehicle at the Morley Galleria (all sentences concurrent) and 12 months in relation to the offences of cultivation of cannabis with intent to sell or supply (both sentences concurrent).
88At the sentencing hearing before French DCJ, the prosecutor outlined the prosecution case against Dong, including the role she played in the commission of the various offences. He said, in relation to charges of cultivation of cannabis with intent to sell or supply:
The State considers [Dong] ... to be [a] low level aider of Magan and Hau Nguyen who were the main cultivators of the cannabis.
...
[Nguyen was (also) observed maintaining the gardens together with the offender Dong at [the Kelmscott house], as it was unoccupied and set up solely for the purpose of growing cannabis inside.
...
Dong was observed by the surveillance camera inside the Kelmscott house with Hau Nguyen and Mui Magan [sic Ngan] on a number of occasions whilst they were there to tend to the cannabis plants.
The electricity account for the Lindy Way house, which is the crop the subject of count 3, was subscribed for in her name from 24 January 2007. Her mobile phone number was given as the contact number to Western Power. The mother, Mui Magan [sic Ngan], does not speak English, and the female who subscribed for the account did speak English, your Honour. So, obviously, the State says that the only reasonable inference to draw is it was the offender who subscribed for the electricity account, which was so fundamental to the growing of the hydroponic crops in that house.
Her fingerprints were found on one of the light shades hanging from the ceiling and providing artificial light to the cannabis plants growing in room one at that house. Her fingerprints were found on one of the pieces of cardboard attached to the ceiling in room two, covering one of the holes in which the cabling from the lights had been passed to connect to the transformers in the laundry. The inference to be drawn from the last two facts, the State submits, is that she was involved in the handling of those items at or before the time of installation.
89Counsel for Dong put her client's position in this way:
[On her first visit to Perth] she did accede to the request of her boyfriend's mother, who has limited English, to make contact with Western Power and have the power connected to the Linley Way House. She remembers that request, and she did ring them up and get the electricity connected within the house.
On her next visit, your Honour, in approximately April or May of 2007, Ms Dong became aware that the Westfield and the Kelmscott house[s] were being used by her boyfriend and her boyfriend's mother for some purpose, which she did suspect was illegal. Her boyfriend's mother, on one occasion, asked her to unpack some light shades from a cardboard box, and also to cut bits of black plastic which, as we understand, they were later used to cover the windows at these premises. She did not have any involvement in the actual connection or the set‑up of the hydroponic equipment, your Honour; but she does acknowledge she did unpack these light shades.
Both Mr Nguyen and Ms Nahn [sic Ngan] later denied her entry to any of the rooms where the cannabis was being grown. I'm told that there was black plastic placed over all the doors, and they were quite vehement in that they wouldn't let her access these rooms. She was told to stay in the main parts of the house and out in the garden.
...
ROGERS, MS: My client's told me that she made several trips to both houses, your Honour. She assisted with maintaining the gardens, and she played with her dogs outside which obviously gave the effect that there were people living at the house, as the State have submitted, your Honour.
She instructs me that, as I've said, that she wasn't allowed to access the actual rooms; but it was, in essence, your Honour, wilful blindness. My client's line of thinking was that if she didn't ask questions, then she wouldn't know the specifics ...
90French DCJ had difficulty accepting these submissions, but accepted that Dong was providing assistance to Nguyen and his mother, but 'at the lower level'. She said, 'you must do so (provide assistance) knowingly'.
91French DCJ reached a number of conclusions about Dong's role in relation to the various counts she faced. First, in relation to the cultivation of cannabis, French DCJ said:
[Y]ou played a significantly lesser role than your boyfriend, and that of your boyfriend's mother, who have been sentenced in relation to that. The State have conceded that you were assisting in relation to the cultivation at a lower level.
92Second, in relation to the possession with intent to sell or supply of the various drugs located in the appellant's vehicle at the Morley Galleria, French DCJ said:
Your role, however, in relation to the drugs found in the motor vehicle outside Morley Galleria would appear to be a less significant role than that of your boyfriend. However, of course, as Judge Eaton commented, in circumstances where offenders are less than frank about the circumstances in which the drugs are found on them, it is very difficult to work out precisely what the involvement of all of the people involved in the drugs concerned was. That is clearly the case as far as you're concerned.
93French DCJ concluded that the appellant and Dong were involved over a number of years with the ongoing business of selling drugs and cultivating cannabis, pointing out that Dong was with the appellant and must have known what he was doing with the drugs and that he was receiving money. She said:
[I]t seems clear that although you may not have been actively involved in the business in relation to the drugs, you knew what was going on; and you were at least content or prepared to be supported in some way or another financially as a result of the proceeds from those drugs.
Certainly, the strong suggestion on the evidence was that at the time that the raid was made outside the Morley Galleria, that you and your boyfriend were in the process - or your boyfriend was in the process of disseminating the drugs, you, in fact, went into the shopping centre to obtain a street map in order to assist in that enterprise.
94French DCJ accepted that 'to some extent', Dong may have been more compliant (by reason of an unhappy marriage and perhaps Vietnamese cultural reasons) to have taken no positive steps to distance herself from her boyfriend and that this may have influenced her behaviour. She concluded:
In your circumstances, although there's nothing to suggest you were actively involved in actually selling the drugs, you clearly must have known about them.
...
Now, that's not to suggest that you were actively involved in the sense of being somebody who handed the drugs over; but you knew what was going on. Your assistance in allowing the drugs to be secreted in a bag in which your clothes were placed over the drugs in the car; you were accompanying your boyfriend in what appeared to be some kind of a drug run that day; being content to be able to be supported on the proceeds from the drugs indicates that you were, in fact, assisting; albeit at a lower level than somebody who was specifically and solely responsible for the drugs.
It is apparent that French DCJ considered that Dong's criminality was at a very different level from that of the appellant.
95Dong pleaded not guilty in relation to the charges of possession with intent to sell or supply of the drugs found in the possession of the appellant and Dong at the Morley Galleria, but pleaded guilty to the offences of cultivation of cannabis with intent to sell or supply. She did not, therefore, have the benefit of fast‑track pleas of guilty in relation to all offences. However, she had no criminal record for drug offences, or any other offences.
96There is another important difference between the appellant and Dong. In addition to the charges of cultivation of cannabis, the appellant was charged with possession with intent to sell or supply very substantial quantities of cannabis. Dong was not charged with those offences, but only with the cultivation of the cannabis.
97Although the sentence imposed upon Dong was only about one‑third of that imposed upon the appellant, it seems to me that there are reasons why there is a disparity in the aggregate sentence which each received. As Gibbs CJ said in Lowe at 609, 'things are not always equal' and matters such as age, background, previous criminal history and general character of the offender, and the part he or she played in the commission of the offence have to be taken into account. In the present case, the important distinguishing factors between the appellant and Dong are that (1) Dong had no prior convictions of any sort, but the appellant had a substantial number of drug‑related convictions; (2) Dong was considered to have played a less significant role than the appellant in relation to the offences of cultivation and the offences of possession with intent to sell or supply of the drugs found in the vehicle at the Morley Galleria; (3) Dong was not a prime mover and was not actively involved in selling the drugs, but must have known about them; and (4) Dong assisted at a lower level than the person who was primarily involved.
98These circumstances seem to me to sufficiently differentiate the respective positions of the appellant and Dong. Further, given that she was not charged with possession with intent to sell or supply the substantial quantities of cannabis, there is a significant difference in the charges which Dong faced. Even accounting for the fact that she went to trial on some of the charges, it is the finding of the sentencing judge (French DCJ) as to the level of her involvement in the commission of the offences which creates a significant disparity between her criminality and that of the appellant. In addition, she had no prior record of any sort.
99In the circumstances, I cannot accept that the appellant was left with a justifiable sense of grievance by reason of the sentences imposed upon Dong.
100Even if I am wrong about that, there is a need to consider whether the sentences imposed upon the appellant were as lenient as could have been imposed. If they were, then there can be no 'justifiable' sense of grievance on his part occasioned by the disparity between the sentences imposed on him and those imposed on Dong: Billing (supra). This issue will be further considered in these reasons.
Mui Ngan
101Mui Ngan was sentenced in relation only to the offences relating to the cultivation of cannabis and possession of that cannabis. She was charged with, but not convicted of, possession with intent to sell or supply cannabis. Her plea of guilty to simple possession was accepted.
102The appellant accepts that the sentencing judge appropriately took into account the difference between the offences of possession with intent to sell or supply and simple possession and that the sentences of 8 months' imprisonment imposed on Mui Ngan on each of the counts of simple possession, when compared to the 2 years' imprisonment imposed upon the appellant for the offences of possession with intent to sell or supply of cannabis, reveal no disparity which would amount to a justifiable sense of grievance on the appellant's part. However, it is said that each of the appellant and Mui Ngan faced identical charges of cultivation of cannabis at each of the Westfield and Kelmscott addresses. Whilst the appellant was sentenced to 3 years' imprisonment on each of these counts, Mui Ngan was sentenced to 2 years on each count. It is submitted that there was no appropriate basis for distinction in sentence between the two offenders. In fact, it is submitted that Mui Ngan should have received a greater sentence than the appellant in relation to these counts.
103The sentencing judge dealt with Mui Ngan's convictions in the following way. He first referred to her personal circumstances. She was 52 years of age and an ethnic Chinese Vietnamese woman with limited English. According to a pre‑sentence report, her father had died when she was a small child and her mother was killed during the Vietnam War. She attended school in Vietnam until 14 years of age. She spent a considerable period of time with her children in a refugee camp in Hong Kong and arrived in Australia in 1994 when she was about 29 years of age. The family settled for a year in Perth and then relocated to Melbourne. She brought up five children on her own. She was married, but divorced in 1995 and had worked in Melbourne as a sewing machine operator on a piecework basis. She had no assets and no savings.
104Mui Ngan had a record of convictions in Victoria. In the Sunshine Magistrates Court on 15 October 2002, she was convicted of two counts of trafficking in heroin and one count of possession of heroin. She was placed on a 2‑month suspended sentence on each of these charges. She also had convictions for shoplifting in February 2001. They resulted in cautions.
105At the sentencing hearing, it was submitted on behalf of Mui Ngan that she had arrived in Perth and had become involved in cultivation of cannabis as a result of the heroin addiction of her two sons. One of these was the appellant, whom she had followed to Perth in an attempt to persuade him to return to Melbourne for treatment. She owed a considerable sum of money and she knew that her son also owed money. This was said to be the motivation for her involvement in the cultivation of cannabis.
106As I have previously pointed out, the sentencing judge was unable to conclude who was the principal organiser or manager of the cultivation project. His Honour did, however, conclude that Mui Ngan may have had less to gain from the project than others. His Honour also concluded that acceptance by the prosecution of Mui Ngan's pleas of guilty to simple possession of cannabis reflected an acceptance by the prosecution that Mui Ngan was not in possession of those substantial quantities of cannabis with intent to sell or supply.
107There was a 2‑year difference between the sentence of 6 years imposed upon the appellant for the two counts of cultivation and the 4 years' imprisonment imposed upon Mui Ngan for the same offences. However, there were matters of difference which, in my opinion, do not justify the appellant's contention that the disparity in sentencing between the sentences he received and those his mother received give rise to a justifiable sense of grievance. First, the record of convictions of the appellant was a more serious record than that of Mui Ngan. Second, the sentencing judge found that whatever Mui Ngan's role was, it appeared that she may have had less to gain from the cultivation than others. Third, the total criminality of Mui Ngan was clearly considerably less than that of the appellant, particularly in relation to the cannabis. She was convicted only of possession of cannabis, whereas the appellant was convicted of possession with intent to sell or supply. The sentences imposed upon each were ordered to be served concurrently, but in the totality of their criminality, clearly the appellant was more criminally responsibility than Mui Ngan when it came to the cannabis‑related offences.
108In all the circumstances, I am unable to conclude that the appellant has a justifiable sense of grievance in relation to the disparity between the sentences he received for cultivation of cannabis and those which Mui Ngan received for cultivation of cannabis. The totality of the criminal conduct of each must be considered and when it is considered there is, in my view, no justifiable sense of grievance about which the appellant can complain.
109I would dismiss the first ground of appeal.
Ground 2
110This is a ground upon which leave is required. It contends that the sentencing judge erred by ordering the sentences imposed on counts 5 and 7 to be served fully 'cumulatively upon each matter [sic other]'.
111The appellant's submission is that although the hydroponic cultivation of cannabis took place at two separate locations, the offending ought to have been regarded as 'one transaction', or part of the 'one criminal enterprise', with the result that the sentences should have been concurrent, 'or at least partially concurrently [sic cumulatively] with each other'.
112Reliance is placed upon the fact that the sentencing judge found that the two cultivations were 'two separate components of the whole project'. It is said that there is little conceptual difference between the two houses being used in this way and two rooms being used within the same house.
113I disagree with this submission. There were two separate locations at which cannabis was being cultivated and they constituted two separate and distinct offences. There was certainly one aim involved in the two cultivations; namely, the cultivation of a very substantial quantity of cannabis. There were, however, two separate projects.
114The so‑called 'one transaction rule' was described in Walgar v The State of Western Australia [2007] WASCA 241 by McLure JA at [9] in the following terms:
The appellant contends that the three offences were part of one transaction and thus should have been ordered to be served concurrently. The scope of the one transaction rule and its relationship with the totality principle have been considered by this court and its predecessor on a number of occasions including in R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [25] - [28]; Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585 [20] - [24]; and Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 [84] - [87]. It is unnecessary to repeat the detail of what was said in those cases. In summary, multiple offences will be part of one transaction if the offender was truly engaged upon one multifaceted course of criminal conduct or if all the offences taken together constitute a single invasion of the same legally protected interest. If the offences are part of one transaction, it is a general rule (or what has been described as a good working rule) that any terms of imprisonment are made concurrent. However, a sentencing judge must in each case consider whether the application of the general rule would result in an appropriate measure of the total criminality involved in the conduct.
115It is to be observed that even if the two cultivations here could properly be said to be part of the one transaction, the sentencing judge was still required to impose sentences which resulted in an appropriate measure of the total criminality involved in the appellant's conduct. Whichever way one looks at it, it seems to me that a proper measure of the appellant's criminality necessitated that there should be cumulative sentences in relation to the two convictions for cultivation of cannabis at the two separate locations. I do not consider the case to be governed by Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610. This was not a case in which the appellant was charged with two offences containing common elements in respect of which he was twice punished for the commission of the elements that were common (see Pearce per McHugh, Hayne and Callinan JJ at [40]). There was commonality in the sense that both charges were charges of cultivation of cannabis, but they were truly separate offences in the sense that they were offences of cultivation at different locations. This was not a case of double punishment for the one act (Pearce per McHugh, Hayne and Callinan JJ at [43]). It was a case of double punishment for two acts. The two acts were constituted by the two separate cultivations at two different addresses.
116Counsel placed reliance upon Johnson v The Queen [2004] HCA 15; [2004] 78 ALJR 616. In that case, the appellant had pleaded guilty to two offences, one of attempting to obtain possession of a commercial quantity of ecstasy and one of attempting to obtain possession of a trafficable quantity of cocaine. The appellant was convicted on the basis of collecting one parcel containing both drugs in a controlled delivery organised by Australian Federal Police officers. The Court of Criminal Appeal was found to have failed to properly consider the appellant's appeal by making factual errors. It erroneously relied on the fact that there were two parcels to reject the appellant's submission that it would be wrong to punish him twice for the commission of the elements that were common between the two offences. Gummow, Callinan and Heydon JJ said at [33] ‑ [34]:
It is true that the appellant pleaded guilty to two offences, but they had much in common: one inducement, one payment for performance, one occasion, one package and one receipt of it by the appellant. This commonality did require that careful regard be had, in deciding the appellant's appeal, to the totality principle. The error in relation to the number of packages and the failure to refer to the numerous common elements strongly suggests that this did not occur.
A further error has been demonstrated. It was not for the Court of Criminal Appeal (per Malcolm CJ) to reject a principle stated by this Court, that account must be taken of the commonality of elements of offences in the sentencing process, on the erroneous basis that the application of the principle would, or indeed possibly could, obscure a particular fact, 'that the [appellant] took possession of two separate parcels of two separate drugs' [Johnson (2002) 26 WAR 336 at 344 [26]]. Application of a principle cannot obscure a fact. Facts either lend themselves to the application of a particular principle or not. The error in this regard was compounded by the serious factual misconception in relation to the fact in question, that there were two parcels rather than one.
117There is a distinction between the facts in Johnson and the facts in the present case. This was not a case in which there were two separate cultivations at the one address. There were two separate cultivations at two separate addresses. The commonality between the offences was that both involved cultivation of cannabis and both cultivations were hydroponically controlled cultivations.
118Count 5 on the indictment alleged the cultivation of cannabis with intent to sell or supply at Kelmscott between the time frame 19 April 2007 and 30 May 2007. Count 7 alleged the cultivation of cannabis with intent to sell or supply at Westfield between the time frame 11 May 2007 and 30 May 2007. The Kelmscott property was owned by an older brother of the appellant, but it does not appear that the Westfield house was owned by the appellant or any member of his family. There was a different number of cannabis plants found at each address (124 plants at Kelmscott and 148 plants at Westfield). In addition, it appears that there were 16 small plants found in a growing station in the kitchen of the Westfield house.
119The systems in operation to encourage hydroponic cultivation appear to have been the same. There were 12 1,000 watt lamps and 24 600 watt lamps at the Westfield house and there were 14 1,000 watt lamps and 25 600 watt lamps at the Kelmscott house. Electrical bypass systems had been installed in both properties. Nevertheless, whatever commonality there may have been in the hydroponic method of cultivation, I consider the separate offences of cultivation to have been separate and distinct, and each deserving of separate punishment.
120I would refuse leave to appeal on ground 2.
Ground 3
121This ground also requires leave. It contends that the sentencing judge erred by failing adequately to have regard to the totality principle in making the sentences imposed on counts 5 and 7 fully cumulative on those imposed on count 1.
122As I have previously pointed out, the sentencing judge was aware of the need to have regard to the principle of totality He said:
I am aware, of course, that the combination of penalties must not be crushing and will have regard to the principle of totality for that reason.
123The totality principle has been explained on many occasions. In Postiglione v The Queen [1997] HCA 26; (1996) 189 CLR 295, McHugh J at 307 ‑ 308 said:
The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved [See Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63]. In Kelly v The Queen (1992) 33 FCR 536 at 541 O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi Unreported; Court of Criminal Appeal of SA; 20 April 1988:
'There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.'
124It is commonly accepted in this jurisdiction that the principle comprises two limbs. It was said in Roffey v The State of Western Australia [2007] WASCA 246 by McLure JA at [24] ‑ [26]:
[T]he totality principle … comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260).
125In the present case, the sentencing judge carefully structured the sentences he imposed upon the appellant. There were two separate and distinct groups of sentences. The first related to the possession with intent to sell or supply of the drugs which were found in the possession of the appellant at Morley Galleria. Prima facie, there could well have been a degree of cumulation of sentence in relation to these offences. They involve separate and distinct drugs. However, for reasons of totality, the sentencing judge chose to order that the sentences imposed in relation to that group of offences should be served concurrently.
126The sentencing judge then looked at the cannabis‑related offences. There were two separate groups. One related to possession with intent to sell or supply of a substantial quantity of cannabis and cultivation of cannabis at one location. The other related to possession with intent to sell or supply of another substantial quantity of cannabis and cultivation of cannabis at a different address. The sentencing judge chose to cumulate the sentences imposed only for the offences of cultivation at the two separate addresses. They were, in turn, cumulated upon the sentence imposed upon count 1.
127In my opinion, the structuring of the sentences properly reflected the total criminality of the appellant's conduct. It 'fairly and justly reflected the total criminality' of that conduct (Jarvis v The Queen (1993) 20 WAR 201 (Ipp J) 207) and it could not be said that an aggregate sentence of 10 years' imprisonment was, in the circumstances of the case, a crushing one. The appellant was convicted of multiple drug offences and an aggregate sentence of 10 years' imprisonment reflected, in my opinion, the total criminality of his conduct without the sentence being crushing. If anything, the aggregate sentence was lenient in the circumstances of the offending. This can be demonstrated by reference to the sentences imposed for the first four counts on the indictment alone. The offences the subject of those counts involved possession with intent to sell or supply close to 600 g of 'hard' drugs. Of those drugs, 343 g related to heroin and methylamphetamine, both narcotic drugs considered by the courts to be at the top end of the hierarchy of drugs: The State of Western Australia v Higgins [2008] WASCA 157 per Steytler P at [109].
128In Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107, it was made clear that sentences of up to 15 years' imprisonment (under the old sentencing regime) are appropriate for the offence of possession with intent to sell or supply of large quantities of methylamphetamine (Miller JA [41], McLure JA [49]).
129If the range is taken to be 11 ‑ 15 years under the old regime (see Tulloch per McLure JA at [48]), that is a range of 7 1/2 ‑ 10 years' imprisonment after application of the transitional provisions (Sentencing Legislation Amendment and Repeal Act 2003 (WA) sch 1 cl 2) (see also Bosworth v The State of Western Australia [2007] WASCA 144 (Miller JA [40]).
130The cases reviewed in Tulloh (Miller JA [22] et seq, McLure JA [49]) reveal numerous instances of sentences within this range for possession with intent to sell or supply of large quantities of methylamphetamine and/or heroin. 343 g of heroin and methylamphetamine, put this case squarely into the 7 1/2 ‑ 10‑year imprisonment range.
131In addition to heroin and methylamphetamine, the appellant was in possession with intent to sell or supply BDMPEA. This drug is a close relative of ecstasy and ecstasy is now considered to be a serious drug to be equated with heroin and methylamphetamine.
132In Higgins, Steytler P (with whom McLure and Miller JJA agreed) made an exhaustive review of the position of MDMA (ecstasy) in the spectrum of the harmfulness of prohibited drugs. The conclusion reached by Steytler P (at [121]) was that there is no basis for making any significant distinction for sentencing purposes between MDMA and other drugs, such as methylamphetamine, amphetamine, heroin and cocaine.
133In Higgins, the respondent had been convicted after trial of possession of a quantity of MDMA with intent to sell or supply and he was sentenced to a term of 4 years' imprisonment with eligibility for parole. The prosecution appealed against the sentence of 4 years' imprisonment on the ground that it was manifestly inadequate and infected by a number of errors made by the sentencing judge. The facts revealed that, in March 2006, police had executed a search warrant at the respondent's home, where they found a sum of money in his wallet, a substantial sum ($54,250) in his safe and 249 g of MDMA in a cereal box in a kitchen cupboard. In the respondent's study was a package of small clipseal bags and a set of electronic scales. These scales revealed traces of methylamphetamine and cocaine. The 249 g of MDMA had a purity of 33% and a street value of $50,000. The wholesale value was between $18,000 to $25,000. The respondent was a dealer for financial gain.
134Steytler P concluded (at [124]) that, in the circumstances of the particular case, which involved dealing in a substantial quantity of MDMA for profit, by a person engaged in the 'high side middle level range of dealing', in the absence of any plea of guilty or remorse, a sentence of 5 years 6 months' imprisonment should be imposed after allowing for the operation of the transitional provisions. His Honour added that if it were not for the operation of the principles then relevant to State appeals, and for the fact of forfeiture of the respondent's lawfully acquired property, he would have imposed a longer term.
135Comparison of the facts in Higgins with those in the present case reveals that the sentence of 3 years' imprisonment imposed upon the appellant for possession with intent to sell or supply of 253 g of BDMPEA was a low sentence.
136It follows that the aggregate sentence of 4 years' imprisonment imposed upon the appellant in respect of counts 1 to 4 on the indictment fell well below the sentence that could have been expected for these offences.
137Consideration must also be given to the sentences imposed for the two counts of possession of cannabis with intent to sell or supply and the two counts of cultivation of cannabis with intent to sell or supply. Comparison with other cases is required.
Possession with intent to sell or supply
138Two examples of cases involving possession with intent to sell or supply substantial quantities of cannabis will suffice.
139In R v Lyon [2001] WASCA 120; (2001) 121 A Crim R 440, the sentence imposed upon the offender for possession with intent to sell or supply of almost 8 kg of cannabis was the equivalent of a 1 year 8‑month sentence post‑transitional. This was a prosecution appeal against sentence, but a ground contending that the sentence imposed was manifestly inadequate in all the circumstances was abandoned, leaving only a ground which contended that the sentence imposed below (a suspended sentence) was an error. All members of the court (Malcolm CJ, Anderson and Steytler JJ) agreed that the suspended sentence of 2 1/2 years' imprisonment should be set aside and a sentence of immediate imprisonment of 2 1/2 years should be substituted. Anderson J, with whom Steytler J agreed, said, at [36]:
[T]he sentence fell well short of that which is required to meet sentencing objectives in a case of its type. I would accept the submissions of the Director of Public Prosecutions, Mr Cock QC, that whilst cannabis is still regarded as a soft drug, this was a sizeable operation and the connection between the abuse of cannabis and progression to more dangerous drugs has become clearer in the last few years. The seriousness of the threat which the trade in cannabis poses is more keenly appreciated by the courts than it was 5 to 10 years ago: Kennedy, unreported; CCA SCt of WA; Library No 980145; 3 April 1998, especially per Malcolm CJ at 13 and 14. This, together with the notorious prevalence of commercial trafficking in cannabis, requires that there be some firming-up of the sentences imposed on offenders who fall into the category of drug traffickers.
140In Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186, the appellant was sentenced after trial for possession with intent to sell or supply of 2 kg of cannabis. He was sentenced to 2 years 8 months' imprisonment (cumulative) for this offence and for breach of a suspended sentence earlier imposed for cultivation of cannabis with intent to sell or supply. These were post‑transitional sentences.
141In my opinion, each of the individual sentences in the present case for possession of cannabis with intent to sell or supply fell generally within the appropriate range, particularly as the amounts of cannabis were 2.38 kg and 7.8 kg respectively.
Cultivation
142Again, two examples of hydroponic cultivation of cannabis will suffice.
143In Day v The Queen [2001] WASCA 284; (2001) 127 A Crim R 403, the appellant was convicted on a plea of guilty of cultivation of cannabis plants with intent to sell or supply cannabis to another. It was a hydroponic cultivation in a residential house at Hillman near Rockingham. The house was described as 'literally a factory for the cultivation of cannabis on a commercial scale' with the cannabis plants 'being tended with scientific precision': see Kennedy J at 3. Forty‑seven mature cannabis plants were located in pots in one room. Two smaller bedrooms had been adapted into nurseries and 62 seedlings were located in them. Each room was reticulated and banks of overhead lights had been installed so as to encourage and accelerate the growth of plants by optimising their growing conditions. A rear room had been converted into a control room for the hydroponic system and the Western Power supply meter had been bypassed in order to avoid detection, and also to avoid the cost of the large amount of power required for running the lighting system. The sentence imposed, by the sentencing judge was 6 years' imprisonment. It is the equivalent of 4 years after application of the transitional provisions.
144The Court of Criminal Appeal allowed an appeal against the sentence and (by majority) reduced the sentence to 3 years 6 months. This was equivalent to 2 years 4 months post‑transitional. Both Steytler J (at [38]) and Miller J (at [45]) expressed the view that it was appropriate to firm up sentences relating to the cultivation or possession of significant quantities of cannabis for commercial gain.
145A later 'cultivation' case was Noble v The Queen [2003] WASCA 83. Noble was convicted after trial of two counts of cultivation with intent to sell or supply. One count related to a 'grow house'. The number of plants was much less than in the present case, with only 48 and 36 plants respectively in each of the two places. The 48 plants were being grown hydroponically in a spare bedroom cupboard in the appellant's house and the 36 plants were being grown hydroponically in premises at Greenwood. This latter house was set up with lights, extractor fans, piping and reflective sheeting in a room in which the plants were growing. The operation was described by the trial judge as cultivation on a moderate commercial scale. The sentences were 6 months' imprisonment on the first count (the appellant's house) and 2 years' imprisonment on the second count (the Greenwood house). The total effective sentence was 2 years' imprisonment. This was a pre‑transitional sentence, the equivalent of which would now be 1 year 4 months.
146In the present case, the appellant was convicted in relation to two separate cultivations, each of which was much more substantial in terms of plants found than was the case in either Day or Noble. Sentences of 3 years' imprisonment on each of the counts of cultivation, whilst at the higher end, would appear to be within the range that could have been expected. This is particularly so in view of the statement of Steytler and Miller JJ in Day to the effect that sentences for hydroponic cultivation of cannabis need to be firmed‑up.
Conclusion on totality
147In this case, the appellant has been sentenced to an aggregate term of 10 years' imprisonment for all offences. The aggregate term represents an attempt by the sentencing judge to reflect the total criminality of the appellant's conduct. In my opinion, it does that. If anything, the aggregate term is lenient. This is so because the 4‑year term for counts 1 to 4 is well below what could have been expected. The 6‑year term for counts 5 to 8 was within range, and the total term of 10 years properly reflects the total criminality of his conduct.
148I would refuse leave on ground 3.
Ground 4
149This ground contends that the sentencing judge erred by imposing sentence on a factual basis which was unfavourable to the appellant and which had been put in issue by the appellant's counsel at the time sentencing submissions were made. It is a ground in relation to which leave has been granted.
150The particulars to the ground raise three contentions:
a)The Applicant disputed that all the cash found on him was illegitimately arrived and that some of the drugs in his possession were not his for the purpose of sale.
b)The learned sentencing judge was not entitled to resolve either of these issues adversely to the Applicant without determining the matters on the hearing.
c)The learned sentencing judge erred in treating both of these factors as tending to aggravate the offending in question without allowing the accused to call evidence in support of his case. [Underlining in original]
151I have already made reference to the sentencing judge's conclusions about the appellant's intentions in relation to his possession of the substantial sum of money with which he was found. The sentencing judge considered that the appellant's explanation that $10,000 had been given to him by his mother and $6,000 he had won at the casino was implausible. I have also referred to the sentencing judge's conclusions that the appellant's contention that he was holding the narcotic drugs for another person and he was to deliver them at an address in Perth was 'fanciful or implausible'.
152Submissions made on behalf of the appellant at the sentencing hearing were in the following terms:
In relation to the drugs that he did have when he was apprehended, his position is that he was holding those for the owners of it. They were people from a nightclub. They were the sort of people that did not want to be found in possession of drugs. From time to time he was a very handy person. He was mobile and he was able to take custody of these - what has to be accepted was large quantity of fairly high quality drugs, but it was not his.
The money that he had with him he says, as to $10,000, was money that his mother had given him to go back to Melbourne to undertake a drug rehabilitation programme which his brother had previously successfully completed - one of his brothers. He says that some $6000 was his own cash that he had won at the casino some days before. I am always cynical about someone who says that to me, but he assures me that if it was an issue, you could call for the video surveillance at the casino which would indicate that he did, in fact, have a lucky streak a few days before he was arrested.
That amount obviously, will be forfeited, and he pleads guilty to it on the basis that directly or indirectly it would have to be said to be connected to the proceeds of crime, and he doesn't take any issue with the ultimate forfeiture of the amount in question.
153The concession that the full amount of $16,850 would have to be forfeited because it directly, or indirectly, was connected to the proceeds of crime does not sit easily with the submission that $6,000 was won at the casino.
154The respondent places reliance upon the fact that the appellant was unable to explain his possession of the money to the writer of the pre‑sentence report. The report of 11 February 2008 contains the following passage:
[H]owever when questioned, he offered no explanation as to how he and his partner came to be in possession of $17,340 which was seized following a search by Police after being apprehended in the car park of the Galleria Shopping Centre.
The reference to $17,340 would appear to include the $450 found in Dong's handbag.
155It is also contended by the respondent that the appellant's explanation for possession of the money was inconsistent with Mui Ngan's claim that she committed the offences of cultivation in order to pay off a debt to others. She did not say that she had given $10,000 to the appellant.
156The respondent says that when interviewed by investigating police, the appellant made no claim that he was holding drugs for 'Tuan'.
157The appellant did tell the writer of the pre‑sentence report of 11 February 2008 that he held drugs for 'Tuan'. The report contains the following passage:
Mr Nguyen claimed that he would often hold drugs for a man he called 'Tuan' whom he had recently met in a Perth nightclub and when asked, he would deliver the drugs to various people and places across Perth. In return for making these deliveries, Mr Nguyen stated that he would receive 'free drugs' as well as working towards 'repaying money owed for drug debts'. Mr Nguyen claimed that he would simply 'drop off the drugs' and claimed that no money ever changed hands ...
158The question is whether the sentencing judge was entitled to reject the account put forward on behalf of the appellant by his counsel.
159During the course of sentencing submissions, the sentencing judge raised with counsel for the appellant the contention that the appellant had been holding the drugs the subject of counts 1 to 4 on the indictment on behalf of somebody else. The following exchange occurred:
EATON DCJ: Well, the significant consideration in relation to counts 1, 2, 3 and 4 is your proposition that he was actually holding them for somebody else.
PERCY, MR: That's what he says, but what we say is they are all - he's in possession of them all at the same time.
160The prosecutor in his response to the submissions of counsel for the appellant made it clear that the prosecution did not accept the assertion that the appellant was holding the drugs for somebody else. He said:
In the end, it is our submission that all that your Honour really can go on is that he was found in possession of a multiple - I will start again, a variety of drugs in a substantial quantity with intent to sell or supply. There is no comfortable basis upon which your Honour should accept the assertion made in the - by the offender to the pre‑sentence report writer and to the psychologist as to how he came to be in possession of them.
161By this submission, the prosecutor made it clear that there was an issue between the prosecution and the defence about the circumstances in which the appellant came to be holding the drugs. At the same time, the prosecutor contended that, in the end result, it was the appellant's possession of a variety of drugs which constituted his possession with intent to sell or supply.
162The sentencing judge (referring also to the circumstances in which the appellant came to be in possession of the money) responded by saying:
EATON DCJ: ‑ ‑ ‑ I will weigh these matters in due course.
163From this latter observation, it might be said that counsel for the appellant should have understood that the sentencing judge intended to make a determination from the submissions before him about the circumstances in which the appellant came to be in possession of the drugs and the money. Counsel for the appellant then had the opportunity of seeking a trial of those two issues at which he would have been obliged to have called evidence. Had evidence been called, there would have been an onus upon the appellant to prove that he had the drugs in his possession with intent only to supply them at the direction of Tuan and that he did not have an intent to sell or supply (s 11(a) Misuse of Drugs Act 1981 (WA)).
164The appellant contends that the trial judge was under an independent obligation to conduct a trial of issues before reaching the determination that he did in relation to the circumstances of the possession of the drugs and the money. Counsel for the appellant relied upon M v Waldron (1988) 90 FLR 355, a decision of Kearney J in the Supreme Court of the Northern Territory. At 358, Kearney J said:
... In general, where there is a dispute as to the sentencing facts and the defendant's version is not such as to be necessarily rejected, it should be acted on by the magistrate: see Wilmott (1977) 1 Crim LJ 216. But a magistrate may not be prepared to accept the version of the facts put forward by counsel for the defendant; in that case, he should inform counsel accordingly, and indicate that he would require the version to be supported by evidence: see R v Vecsey [1962] SASR 127. If he then hears evidence, and substantial conflict remains which he cannot resolve, he should as far as possible accept the defendant's version since doubt must be resolved in his favour: see R v Newton (1982) 77 Cr App R 13 and the review of the authorities in R v Gardiner (1982) 140 DLR (3d) 612 at 641‑650. At the end of the day it is for a sentencing magistrate to decide which version of the facts he accepts, but he is obliged to give the defendant the opportunity to support by evidence the version of the facts put forward by his counsel, if he does not accept it: see Law v Deed [1970] SASR 374 at 378 and the illustration provided by R v Ahmed (1984) 80 Cr App R 295. In this case, the failure to afford the appellant that opportunity was an error which vitiated the sentence imposed.
165M v Waldron was followed by Mildren J in Duthie v Smith (1992) 107 FLR 458. Mildren J added at 463:
[T]he learned magistrate was not bound to accept a version of the facts put to the court by counsel for the respondent from the bar table. The court can reject the explanation if it passes the bounds of reasonable possibility, but, the learned magistrate ought not to have taken that course without giving the respondent an opportunity to support his story by his oath and that of any other witnesses he might call.
166The two Northern Territory cases need to be read in light of what was said by McLure JA (with whom Steytler P and Wheeler JA agreed) in Hutchins v The State of Western Australia [2006] WASCA 258 at [25]:
A court in sentencing may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. If there are circumstances which the Judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probability: R v Olbrich (1999) 199 CLR 270 at 281. Further, if the prosecution seeks to have the sentencing Judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the Judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the Judge to do so and, again, if necessary, call evidence about it. The calling of evidence would be required only if the asserted fact was controverted or if the Judge was not prepared to act on the assertion: Olbrich at 281.
167In the present case, it is arguable that the sentencing judge's statement that he would 'weigh [the] matters in due course' was a clear invitation to counsel for the appellant to call evidence if he wished to do so. If not, the sentencing judge was going to weigh the material as it stood.
168In my opinion, it is unnecessary to reach a concluded view about this, because the appeal can only succeed on this ground if this court is of the opinion that a different sentence should have been imposed (Criminal Appeals Act 2004 s 31(4)(a).)
169Assuming that the sentencing judge was wrong to conclude as he did against the appellant's submissions that he was holding the drugs for Tuan and that he had possession of the money otherwise than from drug dealing, the question still arises whether this court would impose a different sentence from the sentences imposed by the sentencing judge.
170I have already made sufficient reference to authority to indicate that the sentence of 4 years' imprisonment for the combination of offences which constituted counts 1 to 4 on the indictment was a sentence well below the range of sentences that could have been expected in the circumstances. The Director of Public Prosecutions submitted that it 'beggars belief' that standing alone the offences constituted by counts 1 to 4 on the indictment would have led to an aggregate sentence of anything less than 4 years' imprisonment. This submission is made on the assumption that the appellant's contentions about the circumstances in which he had possession of the drugs and possession of the money could be accepted. I agree with it. On no view could it be said that the aggregate sentence imposed in relation to the offences constituted by counts 1 to 4 on the indictment reflected a sentence within the range of sentences that could be expected for possession with intent to supply (assuming it was the appellant's intention to supply only) drugs of the nature and in the quantity held by the appellant.
171In the circumstances, whatever the reason for the appellant holding the drugs and whatever the reason for his possession of the sum of money, it seems to me that ground 4 must be dismissed because the Court of Appeal could only allow the appeal on this ground if, in its opinion, a different sentence should have been imposed. In my opinion, not only is it the case that no different sentence should be imposed, but the sentence that was imposed was a lenient one in the circumstances. I would therefore dismiss ground 4.
ANNEXURE
Comparative Table of Sentences Imposed
| Offence Drug Location Quantity/purity | 1. Possess/I Heroin Car 113 g/14% | 2. Possess/I | 3. Possess/I | 4. Possess/I | 5. Cultivate/I Cannabis | 6. Possess/I | 7. Cultivate/I | 8. Possess/I Cannabis Westfield 7 ‑ 8 kg |
| Nguyen PG to all matters | 4 yrs | 2 yrs 6 months concurrent | 4 yrs concurrent | 3 yrs concurrent | 3 yrs cumulative | 2 yrs concurrent | 3 yrs cumulative | 2 yrs concurrent |
| Dong (girlfriend) PG indicated by (#) | 2 yrs 8 mths | # 1 yr 4 mths concurrent | 2 yrs 8 mths | 2 yrs | # 12 mths concurrent | n/a | # 12 mths cumulative | n/a |
Possess/I = Possession with intent to sell or supply
Cultivate/I = Cultivate with intent to sell or supply
Total Effective Sentence
Appellant = 10 yrs
Dong = 3 yrs 8 mths
25
34
2