Nguyen v The State of Western Australia
[2021] WASCA 198
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NGUYEN -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 198
CORAM: MAZZA JA
MITCHELL JA
MCGRATH J
HEARD: 20 SEPTEMBER 2021
DELIVERED : 25 NOVEMBER 2021
FILE NO/S: CACR 184 of 2020
BETWEEN: DINH THIEU NGUYEN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: LEMONIS DCJ
File Number : IND 732 of 2019
Catchwords:
Criminal law - Appeal against sentence - Two counts of property laundering - Seven counts of cultivation of cannabis with intent to sell or supply to another - Sophisticated large‑scale hydroponic operation - Whether sentence of 6 years 6 months' imprisonment infringes first limb of totality principle
Legislation:
Criminal Code (WA), s 563A(1)(b)
Misuse of Drugs Act 1981 (WA), s 7(1)(a)
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | T F Percy QC & G Yin |
| Respondent | : | K C Cook |
Solicitors:
| Appellant | : | DG Price & Co |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Ha v The State of Western Australia [2019] WASCA 69
Lee v The State of Western Australia [2019] WASCA 137
Lester v The State of Western Australia [2011] WASCA 128
My v The State of Western Australia [2018] WASCA 1
Nguyen v The State of Western Australia [2017] WASCA 195
Rillotta v The State of Western Australia [2017] WASCA 55; (2017) 266 A Crim R 32
Truong v The State of Western Australia [2020] WASCA 177
JUDGMENT OF THE COURT:
The appellant was convicted after trial of two counts of property laundering and seven counts of cultivating cannabis with intent to sell or supply it to another.
On 20 November 2020, the appellant was sentenced by Lemonis DCJ to a total effective sentence of 6 years 6 months' imprisonment with eligibility for parole, backdated to commence on 14 October 2020. The following table sets out the details of the individual sentences.
Count
Offence
Amount
Sentence
1
Property laundering (s 563A(1)(b) Criminal Code)
$70,000
1 year 4 months' imprisonment (cumulative)
2
Property laundering (s 563A(1)(b) Criminal Code)
$15,630
10 months' imprisonment (concurrent)
3
Cultivation of cannabis with intent to sell or supply (Bedford) (s 7(1)(a) Misuse of Drugs Act)
175 plants
2 years 8 months' imprisonment (head sentence)
4
Cultivation of cannabis with intent to sell or supply (Thornlie) (s 7(1)(a) Misuse of Drugs Act)
130 plants
2 years 4 months' imprisonment (concurrent)
5
Cultivation of cannabis with intent to sell or supply (Gosnells) (s 7(1)(a) Misuse of Drugs Act)
152 plants
2 years 6 months' imprisonment (cumulative on count 3)
6
Cultivation of cannabis with intent to sell or supply (Maddington) (s 7(1)(a) Misuse of Drugs Act)
169 plants
2 years 8 months' imprisonment (concurrent)
7
Cultivation of cannabis with intent to sell or supply (Kenwick) (s 7(1)(a) Misuse of Drugs Act)
174 plants
2 years 8 months' imprisonment (concurrent)
8
Cultivation of cannabis with intent to sell or supply (Bayswater) (s 7(1)(a) Misuse of Drugs Act)
164 plants
2 years 8 months' imprisonment (concurrent)
9
Cultivation of cannabis with intent to sell or supply (Bentley) (s 7(1)(a) Misuse of Drugs Act)
117 plants
2 years 4 months' imprisonment (concurrent)
The appellant appeals to this court on the sole ground that the total effective sentence infringes the first limb of the totality principle. The appellant has been granted leave to appeal in respect of this ground.[1]
[1] Order of Buss P on 4 March 2021, WAB 4.
For the reasons that follow, we would dismiss the appeal.
The facts
The facts of the offending are as follows. On 16 May 2018, police officers executed a search warrant on the appellant's home. There they discovered various items and a large amount of cash which the State used at the appellant's trial to establish his guilt. We will deal first with the facts of counts 3 to 9.
Each of these counts related to a separate 'grow house' situated in the suburbs of Perth. Each house involved what the sentencing judge described as a sophisticated hydroponic set‑up, which included the use of an electricity bypass system.[2] The number of plants being cultivated in each house is set out in the table at [2] above. His Honour accepted that the ultimate optimum yield per plant was between 200 and 400 g and sometimes up to a pound (454 g), and that during the relevant period between 15 February 2018 and 17 May 2018, cannabis was being sold for as much as $6,000 per kilogram or $3,100 per pound.[3]
[2] ts 160.
[3] ts 160.
His Honour was unable to assess the likely yield from the plants at each grow house, but was satisfied that each grow house 'represented a significant commercial operation capable of achieving revenue of several hundred thousand dollars'.[4]
[4] ts 160.
Consistently with the jury's verdicts, the sentencing judge found that the appellant knew that other persons were cultivating cannabis in each grow house with an intention to sell or supply it to others.[5]
[5] ts 160.
His Honour described the appellant's role in the operation as essentially that of a bookkeeper.[6] But, as will be seen, the appellant's role extended beyond mere bookkeeping. The appellant managed the financial operation of each grow house, although was not involved in the physical operation of growing the cannabis. His Honour found that the appellant's services 'actually assisted the principals who operated those grow houses to cultivate the cannabis at each house.[7]
[6] ts 160 - 162.
[7] ts 160.
His Honour was satisfied beyond reasonable doubt that the appellant's services included keeping records of the expenses and revenues for each grow house, and extended to the preparation of financial analyses for each property. At the appellant's house, police located handwritten notes, feed charts, excerpts from account books, and receipts for items (including nutrients to feed the cannabis plants) purchased to facilitate the growth of the cannabis plants.[8]
[8] For example, among the documents seized were receipts for a hydroponic supplier which totalled in excess of $100,000.
Police found six mobile telephones, one for each of the grow houses.[9] The appellant was also in possession of the floor plans and measurements of four of the grow houses.[10]
[9] ts 188 - 189.
[10] ts 192.
In respect of the offences the subject of counts 4 and 7, the appellant received bills relating to those houses, and he communicated with the owner of the house the subject of count 4 regarding the payment of rent.[11]
[11] ts 160 - 161.
As to the appellant's overall role, his Honour said:[12]
Overall, I am satisfied that your role in respect of each relevant grow house was an important and trusted role. In this respect, the management of the financial operation of each grow house assists in the cultivation of the plants, by managing the payment of expenses for items and staff associated with the cultivation, thus assisting in the operation reaching its maximum potential.
[12] ts 161.
His Honour found that the appellant provided his services for reward, but his Honour was unable to determine the extent of the reward other than to find that it was 'not insignificant'. His Honour was not satisfied that the appellant was entitled to any of the proceeds of the sale of the cannabis or to participate in the profit derived from the cannabis sales. Further, his Honour found that the appellant was not involved in the physical operation of growing the cannabis and did not own any of the plants or equipment found at any of the grow houses.[13]
[13] ts 161.
In respect of counts 1 and 2, on 16 May 2018, police seized two sums of cash, being $70,000 (count 1) and $15,630 (count 2). His Honour found that the appellant had control of the money essentially for the purpose of paying business expenses, but the money did not belong to him.[14]
[14] ts 161.
His Honour was satisfied that the moneys the subject of counts 1 and 2 were the proceeds of sale of cannabis cultivated at one or more of the grow houses at an earlier time.[15]
[15] ts 161 - 162.
His Honour said that the possession of the cash enabled it to be held separately from the owners of the grow houses, thus reducing the prospect of them coming to the attention of police. His Honour described the appellant's holding of the cash as being an 'important role' and, given the amount involved, found that it 'demonstrated the trust' that had been placed in the appellant by his superiors.[16]
[16] ts 162.
The sentencing judge accepted that other people apart from the appellant were involved in the cannabis operations. Specifically, his Honour found that the appellant was not the principal of the cannabis growing enterprise.[17]
[17] ts 163.
The appellant's personal circumstances
The appellant was 49 years of age at the time of the offences and 51 when he was sentenced. He was born and educated to a tertiary level in planning and economics in Vietnam. He is married with three children. His wife and his two youngest children live in Vietnam. His eldest child lives in Sydney. The appellant had business interests in Vietnam which, as a result of his conviction and imprisonment, are likely to have been lost.[18]
[18] ts 163.
While the appellant retains the support of his family in Vietnam, he has no personal family support in Western Australia.[19]
[19] ts 163.
The appellant moved to Western Australian in 2015. He has only limited English and finds it a difficult language in which to communicate.[20]
[20] ts 163.
The appellant has no prior convictions.[21]
[21] ts 163.
The sentencing remarks
His Honour found the following mitigating factors:
(1)The appellant was a person of prior good character. The sentencing judge noted that the character references which had been provided to him spoke of the appellant being generally a supportive and reliable person who has contributed to the community as a whole.[22]
(2)Imprisonment would be more onerous for the appellant than for an ordinary prisoner, given his limited command of English and that he has no personal family support available to him in Western Australia. His Honour also observed that members of the appellant's family in Vietnam were in frail and poor health, and said that the appellant's inability to see them would also make imprisonment more onerous.[23]
[22] ts 164.
[23] ts 164.
Having regard to the appellant's evidence at trial, which, in substance, was a denial of his participation in the cultivations and an assertion that others were responsible, his Honour said that it was difficult to assess the appellant's risk of reoffending. Ultimately, he concluded that the appellant posed 'a moderate risk of reoffending'.[24]
[24] ts 164.
In respect of counts 1 and 2, his Honour said that personal and general deterrence were important sentencing considerations. His Honour observed that the appellant's role in possession of the moneys allowed those who operated the cannabis growing ventures to be removed from it so that their risk of being detected was reduced. His Honour described this as 'an important role in the facilitation of their operation' and reflected the appellant's trusted role in that operation.[25]
[25] ts 165.
His Honour considered that personal and general deterrence were also important sentencing factors in respect of counts 3 to 9. His Honour said that each operation was sophisticated and involved a substantial number of plants. His Honour found that the appellant had knowledge of each of the grow houses, and he had a trusted and important role in the cultivations, which he performed for reward.[26]
[26] ts 165.
After setting out the individual sentences that he imposed, his Honour said that he applied the totality principle in the orders that he made for concurrency and cumulacy.[27]
[27] ts 166.
Relevant legal principles
The relevant principles concerning grounds of appeal asserting implied error such as an infringement of the totality principle are well settled. They were summarised by this court in Ha v The State of Western Australia[28] in the following terms:
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
…
(3)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(4)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(5)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (that is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (that is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
(7)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. 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.
[28] Ha v The State of Western Australia [2019] WASCA 69 [28].
Sentencing principles in respect of commercial cultivations of cannabis
The main sentencing considerations with respect to the offence of cultivation of cannabis are general and personal deterrence. Matters personal to the offender are accorded less weight.[29]
[29] Lester v The State of Western Australia [2011] WASCA 128 [22]; Rillotta v The State of Western Australia [2017] WASCA 55; (2017) 266 A Crim R 32 [21], [33].
The appellant's submissions
Senior counsel for the appellant accepted that the appellant's offending was serious. He correctly acknowledged that the role played by the appellant was more than a mere bookkeeper, and accepted that the appellant's actions were organised, efficient and sophisticated. Senior counsel also accepted that the appellant committed the offences for substantial financial reward, albeit that the precise amount of the reward was unknown and did not represent a share of the profits.[30]
[30] Appeal ts 5.
While acknowledging the seriousness of the appellant's offending, senior counsel submitted, in effect, that the appellant played a lesser role than those above him in the organisational hierarchy, who had, as he described it, a beneficial interest in the operation.[31] Senior counsel contended that the total effective sentence of 6 years 6 months' imprisonment was commensurate with that of a principal and not with the role played by the appellant. Senior counsel contended that the total effective sentence fell outside the range of an appropriate sentencing discretion and was 'a year too much'.[32]
[31] Appeal ts 3.
[32] Appeal ts 3 - 4.
The respondent's submissions
In substance, counsel for the respondent submitted that the appellant's role in the offending was that of an overseer who was working to maximise the yield being cultivated in the grow houses.[33] Counsel for the respondent observed that the appellant had been involved in the enterprise over an extended period of time. She contended that the appellant provided a 'safe house' for profits derived from the cultivations.[34]
[33] Appeal ts 9.
[34] Appeal ts 6.
While accepting that the appellant was a person of prior good character, counsel for the respondent submitted that it was this quality that enabled the appellant to 'fly under the radar' and thereby avoid detection.[35]
[35] Appeal ts 6.
It was submitted on behalf of the respondent that the total effective sentence properly reflected the appellant's overall criminality and did not infringe the totality principle.[36]
[36] Appeal ts 6.
Disposition
The maximum penalty for the property laundering offences the subject of counts 1 and 2 is 20 years' imprisonment. The maximum penalty for each of the cultivation offences in counts 3 to 9 is 10 years' imprisonment or a fine of $20,000, or both.
The enterprise in which the appellant was involved was, without doubt, a large‑scale commercial cultivation of cannabis. Sentencing standards in respect of offences of this type have been reviewed in a number of recent cases in this court, including Rillotta, Nguyen v The State of Western Australia[37] and its associated case My v The State of Western Australia,[38] Ha,[39] Lee v The State of Western Australia[40] and Truong v The State of Western Australia.[41]
[37] Nguyen v The State of Western Australia [2017] WASCA 195.
[38] My v The State of Western Australia [2018] WASCA 1.
[39] Ha v The State of Western Australia [2019] WASCA 69.
[40] Lee v The State of Western Australia [2019] WASCA 137.
[41] Truong v The State of Western Australia [2020] WASCA 177.
In Ha, the offender was convicted on his pleas of guilty of one count of cultivating 112 cannabis plants (67 of which were mature) and one count of possession of about 30 kg of cannabis with intent to sell or supply to another. At first instance, the offender was sentenced to a total effective sentence of 5 years' imprisonment, comprised of two cumulative sentences of 2 years 6 months' immediate imprisonment. The offender appealed, alleging that the total effective sentence infringed the first limb of the totality principle. This court allowed the appeal on this ground. It did not interfere with the individual sentences, but ordered partial cumulacy of the terms, with the consequence that the total effective sentence imposed was 3 years 3 months' immediate imprisonment with eligibility for parole.[42] The offender in Ha provided labour and tended to the cannabis plants which were being cultivated in a single grow house for a period of two to four weeks.[43]
[42] Ha [52].
[43] Ha [45].
Relevantly to the present case, the court in Ha observed that Rillotta, Nguyen and My involved the imposition of total effective sentences of 5 to 6 years or more on offenders convicted of multiple offences of cultivating cannabis, or selling or supplying cannabis, or possessing cannabis with intent to sell or supply who were involved in the upper end of cannabis growing or distribution enterprises, or in the cultivation and distribution of very large quantities of cannabis for commercial purposes. The court in Ha noted that the outcome of those cases did not establish any upper limit of the appropriate sentencing range for offenders at the upper end of the scale of seriousness for offending of this kind.[44]
[44] Ha [36].
In Truong, the offender pleaded guilty to one count of cultivation of cannabis with intent to sell or supply. The offender in this case was involved in a very large and sophisticated hydroponic cannabis growing enterprise where 7,567 cannabis plants were grown with an estimated street value of $17 million and wholesale value of about $10 million.[45] The offender had a role in the leasing of the property upon which the cannabis was cultivated, exchanged text messages with a real estate agent concerning council approval for the placing of structures on the property, had access to significant amounts of cash and acquired a commercial grade power generator.[46] All of these actions demonstrated that the appellant played a significant and integral part in the commercial drug enterprise. The offender pleaded guilty and was given a 20% discount for his plea, pursuant to s 9AA of the Sentencing Act. He was also found to be remorseful. On appeal, this court found that the sentence of 7 years' imprisonment imposed at first instance was manifestly excessive, and resentenced the appellant to 6 years' imprisonment.[47]
[45] Truong [11].
[46] Truong [14].
[47] Truong [108].
The cases cited by the parties are factually different to the present case and provide little assistance. What assistance they provide does not favour the appellant's claim that the total effective sentence infringed the first limb of the totality principle.
In evaluating the appellant's overall criminality, it is important to focus upon what the appellant actually did, rather than on applying a label to his conduct. To label the appellant as a bookkeeper, that is, someone whose role was merely to enter financial transactions in a book, seriously understates what the appellant did.
The appellant managed the financial operation associated with the grow houses. He did so over a lengthy period of time. While he was not involved in the physical set‑up of the operation or the actual cultivation of cannabis plants, he must have been aware of the scale and sophistication of the enterprise.
The appellant kept a record of the financial transactions relevant to each grow house and must have been closely monitoring their progress. He had a system of separate mobile telephones for the houses and the floor plans and measurements of at least four of the properties. He was involved in the purchase of hydroponic equipment, including the nutrients required to feed the cannabis plants. The appellant oversaw and managed the payment of expenses. It cannot be doubted that his function was to ensure, as far as he could, the maximum commercial benefit from each grow house.
Senior counsel for the appellant accepted that the appellant must have been in communication with the person or persons who owned the cannabis growing operation and stood to profit by it.[48] The appellant was an important, trusted and willing participant in the enterprise and shouldered significant responsibility in it. The enterprise was potentially highly profitable, concerning, as it did, the hydroponic cultivation of a large number of cannabis plants in seven separate grow houses with the potential value of the cannabis being grown being several hundred thousand dollars. We regard the appellant's role as involving a high degree of criminality. Although the appellant's role was subordinate to the principal or principals, his importance to the organisation of the enterprise cannot be doubted.
[48] Appeal ts 5.
The mitigation available to the appellant was limited to his prior good character and the circumstances which resulted in the sentencing judge's finding that a sentence of imprisonment in Western Australia would be more onerous. These matters personal to the appellant carry less weight. In contrast to the offenders in Ha and Truong, the appellant did not have available to him the benefit of guilty pleas and remorse.
General deterrence (including for the property laundering offences) was a particularly important sentencing consideration in this case. The rationale for the kind of large‑scale sophisticated enterprise in which the appellant willingly involved himself was to make as much money as possible. The profits that can be made from the sale of cannabis are large. The appellant's role was to ensure that the grow houses operated efficiently and to maximise the financial returns for the owners of the business. Those who, for reward, use their financial expertise to assist those who grow cannabis and enhance the profitability of their illegal operation must understand that their actions involve a high degree of criminality and that, if convicted, substantial punishment will surely follow.
Personal deterrence also had a role to play in this case, having regard to the sentencing judge's conclusion that the appellant posed a moderate risk of reoffending.
Having evaluated all of the relevant circumstances, we are not persuaded that the total effective sentence in this case did not bear a proper relationship to the overall criminality involved in the nine offences, viewed in their entirety, having regard to all relevant facts and circumstances (including those referable to the appellant personally), all relevant sentencing factors and the total effective sentences imposed in comparable cases. While we would regard the total effective sentence that was imposed as high, it was not unreasonable or plainly unjust.
Orders
For the above reasons, we would order that the appeal be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TW
Associate to the Honourable Justice Mazza
25 NOVEMBER 2021
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