Nguyen v The State of Western Australia
[2021] WASCA 128
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NGUYEN -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 128
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 22 JUNE 2021
DELIVERED : 22 JUNE 2021
PUBLISHED : 20 JULY 2021
FILE NO/S: CACR 14 of 2021
BETWEEN: THI NHU OANH NGUYEN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STEVENSON DCJ
File Number : IND 2275 of 2019
Catchwords:
Criminal law and sentencing - Two counts of cultivating cannabis with intent to sell or supply it to another and one count of fraudulently diverting electricity - Whether the judge erred in finding that the appellant actively participated in the offending with full knowledge of the commercial purpose and knowledge of the scale and extent of the illegal enterprise - Whether individual sentences of immediate imprisonment were manifestly excessive as to type
Legislation:
Misuse of Drugs Act 1981 (WA), s 7(1)
Result:
Leave to appeal on grounds 1 and 2 refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | S Vandongen SC |
| Respondent | : | K C Cook |
Solicitors:
| Appellant | : | William Gerard Legal Pty Ltd |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Adams v The Queen [2003] WASCA 91
Cartwright v The State of Western Australia [2010] WASCA 4
Cross v The State of Western Australia [2018] WASCA 86; (2018) 272 A Crim R 549
Greenfield v The State of Western Australia [2019] WASCA 29
Ha v The State of Western Australia [2019] WASCA 69
Harvey v The State of Western Australia [2017] WASCA 149
HJT v The State of Western Australia [2020] WASCA 120
HNA v The State of Western Australia [2016] WASCA 165
Kabambi v The State of Western Australia [2019] WASCA 44
Law v The State of Western Australia [2009] WASCA 193
Lee v The State of Western Australia [2019] WASCA 137
Lester v The State of Western Australia [2011] WASCA 128
Nguyen v The State of Western Australia [2019] WASCA 149
Nguyen v The State of Western Australia [2020] WASCA 67
R v Hinton [2002] NSWCCA 405; (2002) 134 A Crim R 286
Rillotta v The State of Western Australia [2017] WASCA 55; (2017) 266 A Crim R 32
The State of Western Australia v Chapman [2012] WASCA 203
REASONS OF THE COURT:
Introduction
The appellant was convicted, after her pleas of guilty, of two counts of cultivating a prohibited plant, namely cannabis, with intent to sell or supply (counts 3 and 5) and one count of fraudulent appropriation of power (count 6). She was convicted on the same indictment as her co‑offender, Mr Tran, who also pleaded guilty to counts 3, 5 and 6. Mr Tran also pleaded guilty to the remaining counts (counts 1, 2, 4, 7 and 8) on the indictment, with which the appellant was not charged. The remaining counts were further counts of cultivating cannabis with intent to sell or supply and other related offences.
The offences of which both the appellant and Mr Tran were convicted occurred at two houses that were used to cultivate cannabis. The appellant's offending was by assisting Mr Tran to commit the offences the subject of counts 3, 5 and 6. The precise extent of her assistance and involvement is in issue in the appeal. Broadly summarised, it was as follows. The appellant aided Mr Tran in the cultivation of cannabis the subject of count 3 by assisting him in purchasing equipment, dealing with the proceeds of the offending, and encouraging him to participate in the offending. The appellant aided Mr Tran in the cultivation the subject of count 5 by renting the house, purchasing bypass equipment, attempting to delay a rental inspection and encouraging him to participate in the offending.
The appellant was sentenced in the District Court of Western Australia to a total effective sentence of 2 years' immediate imprisonment. She appealed against her sentence on two grounds. By ground 1, the appellant alleged that the sentencing judge made a material error of fact in finding that the appellant 'actively participated with full knowledge of the commercial purpose and knowledge of the scale and extent of the enterprise involved in the illegal conduct, the subject of the counts for which [she was] sentenced'.[1] By ground 2, the appellant contended that the sentences imposed on her were manifestly excessive as to type.
[1] ts 146.
At the conclusion of the hearing of the appeal on 22 June 2021, the court made the following orders:
1.The appellant's oral application for leave to adduce additional evidence in the event that either or both of grounds 1 and 2 is made out is dismissed.
2.Leave to appeal on grounds 1 and 2 is refused.
3.The appeal is dismissed.
These are our reasons for making those orders.
Facts of the offending
The appellant was charged with, and pleaded guilty to, three offences ‑ namely, two counts of cultivating cannabis with intent to sell or supply it to another (counts 3 and 5) and one count of fraudulently appropriating power (count 6). The appellant was charged on the same indictment as her co‑offender, Mr Tran, with whom she had been in a relationship for a few months commencing in late 2017 or early 2018.[2]
[2] ts 70, 77 ‑ 78, 107.
Mr Tran was also convicted, on his pleas of guilty, of counts 3, 5 and 6. Additionally, he entered guilty pleas for the remaining counts on the indictment, with which only he was charged ‑ namely, three further counts of cultivating cannabis with intent to sell or supply (counts 1, 2 and 7); one further count of fraudulently appropriating power (count 8); and one count of possessing money reasonably suspected to have been unlawfully obtained (count 4).[3] The appellant was initially charged also with counts 4, 7 and 8 but those charges against her were discontinued following negotiations between the defence and the prosecution.
[3] ts 64, 106.
At sentencing, the prosecutor read out the Amended Statement of Material Facts of the offending, dated 1 October 2020, and incorporated into the material facts the papers comprising the prosecution brief (among other things).[4] Subject to qualifications and comments by her defence counsel, noted below in [22] ‑ [24], the appellant accepted the material facts for the purposes of sentencing.[5] The judge formally incorporated the material facts, subject to those qualifications, into his Honour's sentencing remarks.[6]
[4] ts 66.
[5] ts 76.
[6] ts 107.
Unless otherwise stated, what follows reflects the amended statement of material facts.
As to count 3, in February 2018, an unidentified male entered a lease for a property in Gwelup. Police executed a search warrant at the Gwelup property on 26 July 2018. Before entering the property, police observed the appellant and Mr Tran inside. When police knocked on the door and identified themselves, the offenders refused the police entry and attempted to leave the property. They were arrested at the premises.[7]
[7] ts 72.
Police searched the Gwelup property and identified that five rooms had been converted to allow for cannabis to be grown hydroponically. The hydroponic system was sophisticated and included timers, switches, lights, fans, and irrigation and filtration systems. The house was significantly damaged as a result of installing the hydroponic equipment. In total, 71 cannabis plants at various stages of maturity were located.[8]
[8] ts 72 ‑ 73.
Photos of the Gwelup property contained in the prosecution brief show that the hydroponic set up was extensive and elaborate, and that the house was being used wholly for growing cannabis and not as a residence.[9]
[9] AB 160 ‑ 168.
Mr Tran became involved at the Gwelup property after it had been set up to grow cannabis; he was not involved in converting the property into a grow house. Mr Tran was responsible for cultivating cannabis for unidentified persons who, as Mr Tran knew, intended to sell the cannabis that he cultivated. Mr Tran was paid for his involvement.[10]
[10] ts 73.
The appellant aided Mr Tran in cultivating the cannabis by assisting him in purchasing equipment, dealing with the proceeds of the offending, and encouraging him to participate in the offending.[11]
[11] ts 73.
As to counts 5 and 6, the appellant and Mr Tran entered a lease for a property in Ballajura on 18 April 2018.[12] Specifically, as detailed in a statement by the daughter of the property owner, contained in the prosecution brief, the appellant contacted the property owner's daughter to enquire about leasing the property and to arrange an inspection. The appellant and a male person, introduced as the appellant's husband, inspected the property and indicated that they wished to rent the property. The appellant advised the property owner's daughter that she wished to rent the house urgently and on a long term basis. The appellant signed the lease agreement alone.[13] The appellant denied using false identification to lease the house but admitted she entered the lease using a false name.[14]
[12] ts 74.
[13] AB 169 - 174, 177.
[14] ts 76.
Police executed a search warrant at the Ballajura property on 27 July 2018. No occupants were then present.[15]
[15] ts 74.
Police identified that four rooms had been converted to allow cannabis to be grown hydroponically in a sophisticated set up that included timers, switches, lights, fans and irrigation and filtration systems. Again, installing the hydroponic equipment caused significant damage to the property. A total of 341 cannabis plants at various stages of maturity were located. Police also located 10.4 kilograms of cannabis leaf material, which was of no commercial value and which was to be discarded.[16]
[16] ts 74.
The electrical meter at the Ballajura property had been bypassed in a wall cavity behind the meter box. It was estimated that electricity with an approximate retail cost of $7,008 had been fraudulently obtained.[17]
[17] ts 74.
The prosecutor then read the following passage from the amended statement of material facts:[18]
31.TRAN and [the appellant] converted the property into a cannabis grow house shortly after taking possession of the house in April 2018. TRAN was responsible for cultivating the cannabis.
32.[The appellant] aided TRAN in the cultivation by renting the house, purchasing bypass equipment, attempting to delay a rental inspection and encouraging him to participate in the offending.
[18] Amended statement of material facts, 1 October 2020; ts 74.
As can be seen, the State asserted, as a particular of the appellant's assistance in relation to count 5, that the appellant attempted to delay a rental inspection. This was accepted by the defence. The only particular of this revealed by the prosecution brief was that the appellant failed to respond to a request by the landlord for an inspection.[19]
[19] AB 173.
When asked for the appellant's position on the amended statement of material facts, defence counsel said that 'essentially, they are accepted'.[20]
[20] ts 76.
As to count 3, defence counsel said, without challenge from the State, that the first and only time she attended the Gwelup property was on 26 July 2018 ‑ the day that police executed the search warrant and arrested the appellant. However, the appellant's counsel accepted that she 'obviously had knowledge of the set‑up and she certainly was arrested by the police at the property'.[21]
[21] ts 77.
As to counts 5 and 6, the appellant was 'certainly with Mr Tran when the … bypass equipment, was purchased'.[22] Further, the appellant admitted 'knowledge … as to the circumstances whereby she and Mr Tran obtained access to that property … for the purpose, as evidenced by the charges'.[23]
[22] ts 76.
[23] ts 77.
Defence counsel also clarified the duration and timing of the appellant's relationship with Mr Tran. She said that they met at the end of 2017; they were in a relationship at the beginning of 2018; the appellant fell pregnant to Mr Tran by April 2018; and they were in a relationship for three to four months. In this context, defence counsel said the following about the appellant's knowledge of the offending conduct:[24]
[THE JUDGE]: Pregnant by April 2018.
[DEFENCE COUNSEL]: Yes.
[THE JUDGE]: At which time, of course, she had full knowledge of the offending conduct.
[DEFENCE COUNSEL]: That's where it again was a bit difficult to establish. She certainly indicates, certainly at the beginning of their relationship she didn't have knowledge, but certainly into their relationship ‑ at what point it's difficult to confirm with her, but knowledge was certainly there by the time that she had been arrested.
[THE JUDGE]: Including the fact that she was pregnant.
[DEFENCE COUNSEL]: Yes. (emphasis added)
[24] ts 77 ‑ 78.
In the course of the prosecutor's sentencing submissions, the judge made further comments about the appellant's offending and her knowledge of the offending conduct. The judge said:[25]
[THE JUDGE]: Well, they're in a relationship. … She's pregnant with Mr Tran's child. They have a future together in the activities that they are engaged in undertaking together. She's playing an active role in assisting him to acquire property and the means to divert power for the purpose of the hydroponic setups.
His Honour then said he accepted that the appellant was brought into the offending conduct as a result of forming a relationship with Mr Tran. However, his Honour said:[26]
[A]t some point in time in early 2018, consistent with the developing relationship and becoming pregnant to him, she had full knowledge of what they were about jointly in relation to this offending.
[25] ts 104.
[26] ts 104.
His Honour further observed that the appellant was involved in the same enterprise as Mr Tran at two properties ‑ Gwelup and Ballajura ‑ and that there was evidence she was involved at a third grow house, though that count (count 7) had been discontinued against her. His Honour then said, 'So she has knowledge. She's involved'.[27] The judge found she played a lesser role than Mr Tran but said she was to be sentenced for very serious offending relating to two separate grow houses.[28]
[27] ts 105.
[28] ts 104 ‑ 105.
After proposing these findings and making these comments, the judge gave Mr Tran's counsel and the appellant's counsel the opportunity to make further submissions or raise any other matters.[29] Neither counsel did so, nor did they make any objection, or add any qualification, to the proposed findings and comments outlined at [25] ‑ [26] above.[30]
[29] ts 105.
[30] ts 105.
The appellant's personal circumstances
The appellant was 33 years old at the time of sentencing.[31] She is from Vietnam and came to Australia after having a child in Vietnam with an Australian citizen who subsequently returned to live in Australia.[32] That child was 8 years old at the time of the appellant's sentencing.[33]
[31] ts 112.
[32] ts 90 ‑ 91, 113.
[33] ts 113.
The appellant became pregnant to her co‑offender, Mr Tran, in about April 2018. The appellant's child to Mr Tran was 2 years old at the time of sentencing.[34] The judge's remarks on the hardship to the appellant's children arising from her incarceration will be discussed further below.
[34] ts 113.
The appellant had no previous record and was otherwise of prior good character.[35]
[35] ts 113.
The sentencing judge received a letter of apology from the appellant, to which we will refer in more detail in outlining the sentencing remarks.
The judge also received a letter from the appellant's paternal aunt who supported the appellant with her work and study, and who treated the appellant as her own daughter.[36]
[36] ts 113.
The appellant's parents, who are both deaf and mute,[37] were visiting the appellant in Australia from Vietnam at the time of her sentencing. They had been unable to return to Vietnam due to COVID‑19.[38]
[37] ts 90.
[38] ts 95, 113, 144.
The judge's sentencing remarks
Summary
The appellant appeared for sentencing on 5 January 2021. On that day, the judge made sentencing remarks and indicated that a total effective sentence of 2 years 6 months' immediate imprisonment would be appropriate. However, the appellant had not made arrangements for the care of her children while she was in prison. Consequently, the judge decided to order that the appellant's sentence did not operate from that day; the judge granted her bail to make care arrangements for her children before she would return to court several days later, at which time the sentence would be imposed on her.
When the appellant appeared in court again on 11 January 2021, she was represented by different counsel who had, by then, put before the court additional submissions; further materials about the impact of the appellant's incarceration on her children; and an application seeking to recall the sentences of 5 January 2021 and for an adjournment to allow further expert evidence about the children to be prepared and filed. The judge refused the adjournment, but sentenced the appellant on the basis of all the information that was then before the court. In light of that additional information, the judge accepted that there were exceptional circumstances in the hardship that would be imposed on the appellant's children due to her incarceration. Accordingly, his Honour adjusted the sentences initially announced on 5 January 2021 and resentenced the appellant to a total effective sentence of 2 years' immediate imprisonment.
Hearing on 5 January 2021
The appellant came before the court for sentencing on 5 January 2021. His Honour said that the seriousness of Mr Tran's and the appellant's offending was reflected in:[39]
(1)the statutory maximum penalties for cultivating cannabis with intent to sell or supply to another and for fraudulently diverting electricity, namely 10 years' imprisonment and 3 years' imprisonment, respectively;
(2)the extent of the work required to establish the properties as grow houses and to maintain the cannabis plants, which would have required significant planning, preparation, premeditation and persistence, although the judge noted that Mr Tran was not involved in the establishment of the cannabis grow house the subject of count 3;
(3)the number of the cannabis plants involved, in particular the large number of cannabis plants in relation to count 5 (341 plants);
(4)the extent of the damage done to the rented properties to establish them as grow houses;
(5)the sophistication of the hydroponic growing set‑ups;
(6)the fact that four or five rooms in each of the growing houses were completely used for growing cannabis; and
(7)the amount of power that was fraudulently obtained to power the hydroponic growing systems.
[39] ts 107 ‑ 108.
The judge emphasised that the appellant was convicted and was to be sentenced for only counts 3, 5 and 6, notwithstanding that there was evidence she was present and involved in counts 4, 7 and 8 and that she must have had knowledge of the other counts given her relationship with Mr Tran and her involvement in counts 3, 5 and 6.[40]
[40] ts 109.
The judge applied a discount of 18% in recognition of the appellant's pleas of guilty, noting that the guilty pleas were not entered at the first reasonable opportunity and that they were entered after a trial listing hearing.[41] The judge also accepted that the appellant would experience hardship if she were to serve any term of imprisonment immediately arising out of separation from her children, in particular her first child.[42] Further, the judge observed that the appellant had undertaken lawful employment and study; she had no previous criminal record; and she had provided references in her favour to the court.
[41] ts 108 ‑ 109.
[42] ts 114; the prosecutor had noted at ts 102 that it may be possible for the appellant's second child to be with the appellant in prison given the second child was very young.
The sentencing judge received a letter of apology from the appellant, indicating that she recognised that she made a mistake to 'unintentionally allow [herself] to be abused for someone's benefit, resulting in the offences [the appellant was] facing'.[43] The judge found that neither the letter nor any material before the court indicated genuine insight on the appellant's part into the extent of the harm caused to the community by the offences in which she had willingly participated. Rather, the letter was a plea of mercy based on the predicament of the appellant's children arising from her offending.[44]
[43] ts 114.
[44] ts 114.
In the context of considering parity between the appellant and Mr Tran in respect of counts 3, 5 and 6, the judge said:[45]
As already indicated, I accept that Mr Tran played a greater role, having regard to the cultural consideration referred to in the written submissions on behalf of [the appellant], and also taking into account what is said about her particular naivety, but on the basis of a finding that she had full knowledge that she was a whole participant in the illegal conduct, and in some way she must have been a beneficiary of some of the proceeds to be derived as a result of her being prepared to take the risk which she fully appreciated at all relevant times.
There is in any event, that she actively assisted in securing, as already mentioned, some of the items necessary to undertake the activities. But I do accept that her role was less than Mr Tran's for the purpose of sentencing. (emphasis added)
There was no challenge on appeal to these findings.
[45] ts 118. See also ts 111.
The judge considered the following sentences appropriate for the appellant:[46]
[46] ts 118, 119 ‑ 120.
Count 3
3 months' imprisonment (reduced from 18 months' imprisonment for totality reasons)
Cumulative
Count 5
2 years 3 months' imprisonment
Head sentence
Count 6
2 months' imprisonment
Concurrent
Total effective sentence
2 years 6 months' imprisonment
The judge considered it not appropriate to suspend or conditionally suspend the term of imprisonment.[47] The appellant was made eligible for parole.[48]
[47] ts 120.
[48] ts 120.
However, as already noted, the sentence was not imposed on the appellant on 5 January 2021. As the appellant had not made arrangements for the care of her children, the judge considered that there were exceptional circumstances that justified the appellant being granted bail, so she could make such arrangements. The appellant would then return to court on 11 January 2021, when the sentence would be imposed on her and take effect.[49]
Hearing on 11 January 2021
[49] ts 121 ‑ 122.
On 11 January 2021, the appellant was represented by different defence counsel. Defence counsel had filed: (a) a further outline of sentencing submissions; (b) further materials as to whether, on the balance of probabilities, there was a mitigating factor of exceptional hardship that would be imposed on the appellant's family if she were incarcerated; and (c) an application seeking orders that the sentences announced on 5 January 2021 be recalled and that sentencing be otherwise adjourned to allow for further evidence to be obtained. Specifically, as to (c), defence counsel indicated that he intended to obtain a further psychological report on the impact that the appellant's incarceration would have on her first child.[50]
[50] ts 129, 145.
The judge refused the application to adjourn sentencing for the preparation of the further psychological report. However, his Honour granted leave to receive the additional information that was then before the court, referred to at [43](b) above.[51] The judge then made further sentencing remarks.
[51] ts 140 ‑ 141, 145.
Before turning to the appellant's family circumstances, the judge reiterated and elaborated on some of the remarks his Honour had made on 5 January 2021:
(1)The appellant's guilty pleas were not made with genuine remorse or insight. Rather, they were the result of negotiations with the State, the results of which were very favourable to the appellant. Even as at 5 January 2021, the appellant had failed to fully accept responsibility for, or appreciate the seriousness of, her offending, demonstrated by the fact she had not then made arrangements for the care of her children in the event she was to serve an immediate term of imprisonment.[52]
[52] ts 145 - 146.
(2)As to the appellant's role in and knowledge of the offending conduct, the judge said:[53]
It is the case that you actively participated with full knowledge of the commercial purpose and knowledge of the scale and extent of the enterprise involved in the illegal conduct, the subject of the counts for which you are to be sentenced.
You would have appreciated at all times that you were committing serious offences in this country and on apprehension, you would have been required to serve an immediate term of imprisonment.
I also on the other hand accept that there is an element of naiveness on your part by reason of your vulnerability and willingness to enter into a relationship with your co‑offender Mr Tran for the purpose of the offending.
Having said that, you did, as I mentioned, actively provide an important role and assistance to him for the offending which he was involved in before he entered into a relationship with you and you became aware of it.
In other words, you went into the offending behaviour with your eyes open at the point that you crossed the line and willingly agreed to assist him.
The italicised part of this passage was challenged by ground 1 of this appeal.
(3)As to parity, the judge reiterated that the appellant played a lesser role than Mr Tran and that he was plainly the main instigator and main beneficiary. Further, the judge acknowledged the appellant's exceptional family circumstances, which are detailed below. On the other hand, the judge said, the appellant aided, abetted and assisted Mr Tran to commit the offences for which she was being sentenced. Further, she must have received some benefit from the offending given she was prepared to take the risk of assisting him.[54]
[53] ts 146.
[54] ts 146, 148.
The judge then turned to the appellant's family circumstances. His Honour accepted that, on the balance of probabilities, there were exceptional circumstances arising from the hardship that the appellant's incarceration would cause to her family, particularly her first child and to a lesser extent her second child.[55]
[55] ts 146 ‑ 147.
Neither of the appellant's children had a father figure in their life. The appellant's first child did not have a good relationship with his father. There was material that suggested the father had been granted access to the child. However, it was suggested that there may have been issues arising out of that access, including that allegations had been made against the father, the relevant department had been involved and measures had been put in place to protect the appellant's first child from his father if the allegations were to have substance.[56]
[56] ts 147.
The appellant was the primary caregiver for both children.[57] She had the support of her parents and her extended family (particularly her aunty) financially, emotionally, and in the care of her children. The judge accepted that her parents and extended family would be burdened with caring for the children while the appellant was in prison.[58] However, the judge also noted that it may be possible for the appellant's second child to be with her in prison because that child was very young.[59]
[57] ts 147.
[58] ts 147.
[59] ts 148.
The judge added that incarceration of any parent would have a deleterious impact on young children.[60]
[60] ts 148.
His Honour also said that in assessing the extent of the mitigating effect of the above, he considered that the appellant would have been aware of her first child's difficulties at the time of her offending. Therefore, the child's issues, on which she placed reliance, cannot have been unexpected.[61]
[61] ts 147.
The judge then reiterated that, given the seriousness of the appellant's offending, an immediate term of imprisonment had to be imposed.[62] However, in light of the exceptional circumstances of family hardship, as outlined above, the judge considered it appropriate to adjust the sentences indicated on 5 January 2021.[63]
[62] ts 148.
[63] ts 149.
The judge then imposed the following sentences on the appellant:[64]
[64] ts 149 ‑ 150.
Count 3
18 months' imprisonment
Concurrent
Count 5
2 years' imprisonment
Head sentence
Count 6
2 months' imprisonment
Concurrent
Total effective sentence
2 years' imprisonment
Grounds of appeal
The appellant appealed on the following two grounds:
1.The learned sentencing judge erred in fact in finding that the appellant 'actively participated with full knowledge of the commercial purpose and knowledge of the scale and extent of the enterprise involved in the illegal conduct'.
2.Each of the individual sentences that were imposed on the appellant were manifestly excessive because they were ordered to be served immediately, having regard to the maximum penalties for the offences, the place that the appellant's offending occupied in the scale of seriousness, the appellant's personal circumstances, and the types of sentences customarily imposed for offences of the type committed by the appellant.
The question of leave to appeal was referred to the hearing of the appeal.[65] An urgent appeal order was made on 19 April 2021.[66]
[65] Order of Buss P 14 April 2021, AB 3.
[66] Order of Buss P 19 April 2021, AB 4.
Ground 1 - factual error by the sentencing judge?
Appellant's submissions
By ground 1, the appellant alleged that the sentencing judge erred in making the following factual finding:[67]
It is the case that you actively participated with full knowledge of the commercial purpose and knowledge of the scale and extent of the enterprise involved in the illegal conduct, the subject of the counts for which you are to be sentenced.
[67] ts 146.
The appellant submitted that the above finding was an aggravating factor because full knowledge of the commercial purpose, scale and extent of a criminal enterprise would render the offending more serious and would attract a greater penalty. Accordingly, it was submitted, the judge needed to be satisfied of the above facts beyond a reasonable doubt.[68]
[68] Appellant's submissions [34]; appeal ts 5.
The appellant submitted that it was not open to the judge to have been satisfied of the impugned facts beyond a reasonable doubt, as the material facts on which the appellant was found guilty were very limited and lacking in detail. For example, as regards count 3, the appellant highlighted that there was little detail about the manner in which she assisted Mr Tran in purchasing equipment, the dealings the appellant had with the proceeds of the offending, and precisely how she encouraged Mr Tran to participate in the offending conduct.[69]
[69] Appellant's submissions [10], [37]; appeal ts 3 - 4, 15.
The appellant also highlighted facts relating to her offending that tended to suggest her involvement was minimal. For example, as to count 3, the appellant had submitted at sentencing that the first and only time she attended the Gwelup property was the day that the search warrant was executed and she was arrested. The prosecution did not challenge this submission at sentencing. As to count 5, the appellant highlighted that her involvement was largely as a party to offending that was principally carried out by Mr Tran. For example, she assisted by renting the grow house the subject of that count with her co‑offender, she assisted him to purchase electrical by‑pass equipment by being present when the equipment was purchased, she attempted to delay a rental inspection and, in an unspecified way, encouraged him to participate in the offending.[70] The appellant also submitted that it was not established that she attended the Ballajura property at any time after the crop was established there.[71]
[70] Appellant's submissions [38] - [39]; appeal ts 9.
[71] Appeal ts 15.
Further, it was submitted that the appellant's offending must have occurred over a relatively short period of time given she was in a relationship with Mr Tran for only three to four months before being arrested.[72]
Disposition: the judge did not err in making the impugned finding
[72] Appellant's submissions [40].
The principles governing the finding of facts following a plea of guilty are well‑established. They were summarised in Law v The State of Western Australia.[73] We adopt and apply those principles.
[73] Law v The State of Western Australia [2009] WASCA 193 [27] ‑ [34].
Although the respondent submitted that, in material respects, the appellant bore an onus of proof before the sentencing judge,[74] we resolved the appeal on the basis that the question is whether it was open to the sentencing judge to be satisfied beyond reasonable doubt as to the impugned finding.
[74] Respondent's submissions [20].
The starting point in resolving ground 1 is to construe the finding impugned by the ground.
The finding is set out at [55] above. By that finding, the judge found that the appellant participated in the offences she committed, knowing the commercial purpose, scale and extent of the enterprise involved in those offences. The reference in the impugned passage to the commercial purpose of the enterprise is to the purpose of growing cannabis for sale in order to make profit. The reference to the scale and extent of the enterprise is not a reference to the precise number of plants being cultivated at a particular time, that being a matter which would, by the nature of a cultivation exercise, vary over time. Rather, the reference to the scale and extent of the enterprise refers, as a matter of substance, to the scale and extent of that operation, which encompasses the following facts:
(1)Both houses were used exclusively to cultivate cannabis.
(2)Both houses had been converted to be used for that purpose, and had elaborate and sophisticated hydroponic systems for growing cannabis. The hydroponic systems extended, in each house, over several rooms, and enabled cultivation of cannabis on a substantial scale, not merely a cultivation of, say, 10 or 20 plants.
Moreover, it is inevitable, as a matter of common sense and experience, that the appellant's knowledge as to the precise detail of a growing enterprise would increase over time as the enterprise itself developed and as she saw more of it or otherwise learned more about it. The judge's finding is not to be taken to suggest otherwise.
The extent of the appellant's knowledge is not to be evaluated by considering her knowledge as to each of the two houses in isolation from the other. The cultivation of cannabis at the two grow houses in which the appellant was involved is properly seen as a concurrent operation. The charges concerning the two houses relate to dates that are one day apart - 26 July 2018 and 27 July 2018. Plainly, however, each of the premises had by then been used for the purpose of cultivating cannabis for some time.
In our view, the judge's impugned finding, understood in the manner and context outlined above, was amply justified by the following matters:
(1)The appellant pleaded guilty to two counts of cultivating cannabis plants with intent to sell or supply, thereby admitting the elements of those offences.
(2)The facts asserted by the State and accepted by the appellant were that those two counts involved a total of 412 cannabis plants: 71 plants for count 3 at the Gwelup property and 341 plants for count 5 at the Ballajura property.[75]
(3)From late 2017 or early 2018, the appellant was in a sexual relationship with Mr Tran.[76]
(4)In the middle of April 2018, the appellant was involved in negotiating the lease of the Ballajura property. In the course of negotiations, she said to the owner of the property that she wanted to lease the property urgently[77] and that she wanted to rent the property for a long term.[78] She, alone, signed the lease of the Ballajura property for a term of 12 months.[79]
(5)Shortly after taking possession of the Ballajura property, in late April 2018, the appellant and Mr Tran converted the property into a cannabis grow house.[80] The only reasonable inference is that the property had been leased for that purpose, and that the appellant was and had been aware of that fact. Moreover, in being involved in the process of conversion of the property, the appellant thereby became aware, if she was not already, of the hydroponic set‑up of the property and its capacity to be used to cultivate cannabis on a substantial scale.
(6)In May 2018, after the Ballajura property had been so converted, the appellant was present at the property. In speaking to the owner's daughter about difficulties in getting the hot water to work, the appellant did not take up the offer for the owner's son to attend the premises to assist.[81]
(7)The appellant assisted Mr Tran in the cultivation the subject of count 3 by assisting him in purchasing equipment, dealing with the proceeds of the offending and encouraging him to participate in the offending.[82]
(8)The Gwelup property had a similarly sophisticated hydroponic set‑up to the one at the Ballajura property. Accepting, on the basis of the appellant's unchallenged denial, that she did not attend the Gwelup property before the day she was arrested there, it is unrealistic to suppose that, in assisting Mr Tran in the respects referred to in subpar (7) above, she understood the cannabis growing operation at the Gwelup property to be materially different in its character and scale from the arrangements which she had assisted to put in place at the Ballajura property.
(9)In respect of both counts 3 and 5, part of the State case accepted on the part of the appellant was that the appellant encouraged Mr Tran to commit the offence. Again, there is an air of unreality about any suggestion that, in encouraging him to commit his offences, the appellant's knowledge of the enterprises at the two grow houses did not extend to the commercial purpose, scale and extent of the enterprise in the sense we have explained at [63] ‑ [64] above.
[75] ts 72 - 73, 74.
[76] ts 107.
[77] AB 170.
[78] AB 177.
[79] AB 169 - 174.
[80] ts 74.
[81] AB 172.
[82] ts 73.
Moreover, in the sentencing proceedings, counsel for the appellant accepted, in substance, that the appellant knew of the commercial purpose and the nature and extent of the enterprise involved in the offending the subject of counts 3, 5 and 6.[83]
[83] See [22] ‑ [27] above.
For these reasons, in our opinion it was well open to the sentencing judge to be satisfied beyond reasonable doubt in making the finding impugned by ground 1. Accordingly, we refused leave to appeal in respect of that ground.
Further, even if, contrary to our opinion, the ground had been made out, we would nevertheless have dismissed the appeal on the basis that no different sentence should have been imposed. For the reasons explained in resolving ground 2, had we upheld ground 1, we would, in the exercise of our independent sentencing discretion, have imposed sentences in relation to each offence that were of immediate imprisonment and of no lesser length than the sentences imposed by the sentencing judge.
Ground 2 ‑ manifest excess as to type?
Appellant's submissions
Ground 2 asserted that a sentence of 2 years' immediate imprisonment was manifestly excessive as to type. In other words, the appellant contended that it was not open to the sentencing judge to impose immediate imprisonment, as distinct from suspended imprisonment.
The appellant accepted that she became involved, at some level, in a relatively sophisticated attempt to hydroponically cultivate a reasonably significant quantity of cannabis plants for other people who were doing it for commercial gain.[84] However, the appellant emphasised that the focus should be on what she did - in other words, on the conduct constituting her offending.
[84] Appellant's submissions [46].
In this regard, the appellant again pointed to the general terms in which the appellant's assistance of her co‑offender is expressed. For example, it was said to be unclear what equipment was purchased, how she dealt with any proceeds of the offending and how precisely she had encouraged her co‑offender to participate in the offending. Again, the appellant emphasised that she attended the premises the subject of count 3 only on the day the search warrant was executed.
The appellant further emphasised the judge's finding that the appellant played a far lesser role in the offending than that played by Mr Tran, and the appellant asserted that she received no benefit for her offending behaviour.
The appellant pointed to a number of significant mitigating factors: her plea of guilty, for which she received an 18% discount; her prior good character; the exceptional circumstances established as to the hardship occasioned to her children by her imprisonment; and the hardship the appellant would suffer as a result of being separated from her children.[85]
[85] Appellant's submissions [51] ‑ [55].
As to the appellant's children, the appellant was still breastfeeding her youngest child, aged 2 years old, at the time she was sentenced. The appellant's other child, aged 8 years old, has multiple developmental needs, and was attending weekly therapy sessions and occupational therapy and social work appointments. In the absence of the appellant, the children would need to be cared for by the appellant's elderly parents, with assistance from her aunt. The appellant's parents are deaf and can only communicate using sign language. The appellant's children do not know how to communicate using sign language.[86]
[86] Appellant's submissions [56] ‑ [57].
The appellant emphasised the judge's finding that, in all the circumstances, including by reason of the matters referred to above, the hardship to the appellant's children constitute exceptional circumstances.
In summary, the appellant contended that given her limited involvement in the offences and the mitigating factors in her favour, especially the exceptional circumstances arising from the hardship to her children of her incarceration, it was not open to the sentencing judge to impose an immediate term of imprisonment.
Disposition: immediate imprisonment was open
The general principles governing an appeal on the ground that a sentence is manifestly excessive are well‑established. We adopt, without repeating, the summary of principles in Kabambi v The State of Western Australia.[87]
[87] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The principles applying to a ground alleging that a sentence is manifestly excessive as to type, in that the judge imposed immediate imprisonment when suspended imprisonment ought to have been imposed, are also well‑know. They are summarised in HNA v The State of Western Australia[88] and in Cross v The State of Western Australia.[89] The question is whether the appellant has demonstrated that the primary sentencing court's judgment - that suspension was not appropriate - was a conclusion that was not reasonably open.
[88] HNA v The State of Western Australia [2016] WASCA 165 [23] ‑ [32].
[89] Cross v The State of Western Australia [2018] WASCA 86; (2018) 272 A Crim R 549 [33] ‑ [37].
In our opinion, for the reasons that follow, in the present case it was well open to the sentencing judge to conclude that suspension of the terms of imprisonment was not appropriate. Indeed, in our opinion, it was not open to his Honour to have suspended the terms of imprisonment.
The maximum penalty for an offence against s 7(1)(a) of the Misuse of Drugs Act 1981 (WA), relating, as here, only to cannabis, is 10 years' imprisonment and a fine of $20,000.
The following observations made in 2011 by McLure P in Lesterv The State of Western Australia[90] have been cited many times since and remain as pertinent today as when they were made:
The court has since 2001 repeatedly stated that it takes a more serious view of the threat the cannabis trade poses to society and the increased prevalence of it. The risk correlation between the use of cannabis and mental illness and progression to harder drugs is a familiar theme in sentencing materials in more recent times.
Deterrence is the main sentencing consideration for dealing in prohibited drugs, including cannabis, and matters personal to the offender are accorded correspondingly less weight. In the past five years at least there has been a tangible, incremental firming up in the sentences imposed for dealing in other types of prohibited drugs. That is not obviously so in the sentencing of offenders for dealing in cannabis, notwithstanding the identified need.
[90] Lester v The State of Western Australia [2011] WASCA 128 [21] ‑ [22].
In the context of drug offences like those involved in this case, important factors in identifying the criminality of an offender's conduct include the quantity of drugs or plants involved, the nature of the offender's participation and whether the offence was committed for commercial gain.[91]
[91] HNA [37]; Ha v The State of Western Australia [2019] WASCA 69 [43].
The following outline of sentencing decisions for substantial sized commercial cultivation of cannabis in Rillotta v The State of Western Australia[92] has been referred to many times in this court:[93]
In Lester, McLure P, with whom other members of the court agreed, reviewed a number of sentences for offences under s 6(1) and s 7(1) of the Drugs Act involving cannabis. The reviewed total effective sentences ranged between 1 year 4 months' immediate imprisonment and 2 years 8 months' immediate imprisonment.
…
A number of other cases decided since Lester may also be noted, while recognising that they concerned much lesser degrees of seriousness of offending than the present case.
HNAinvolved an offender who participated in a large‑scale and sophisticated hydroponic cannabis cultivation operation. However, the offender in that case played only a minor low‑level role in the operation, assisting in the harvesting of cannabis head material. His sentence of 9 months' immediate imprisonment for one count of cultivating cannabis plants with intent to sell or supply to another was upheld on appeal.
Also since Lester, a number of cases have considered lower level offences of possession of cannabis with intent to sell or supply to another. Sentences of 12 months' immediate imprisonment were upheld by this court in Sandwell v The State of Western Australia and Rodi v The State of Western Australia [No 2]. Both cases involved significantly different circumstances to the present. Sandwell concerned the possession of about 2.5 kg of cannabis and 147 cannabis seedlings by an offender who was not a commercial dealer of cannabis and intended to use the cannabis himself and distribute it to a small number of friends. Rodi involved possession of less than 1 kg of cannabis by an offender sentenced on the basis that he was a mid‑level dealer. In Miles v The State of Western Australia, a total effective sentence of 22 months immediate imprisonment was upheld in respect of possession of about 421 g of cannabis with intent to sell or supply, together with dexamphetamine tablets and possession of $27,500 in cash reasonably suspected of being unlawfully obtained.
[92] Rillotta v The State of Western Australia [2017] WASCA 55; (2017) 266 A Crim R 32 [23], [28] ‑ [30].
[93] See, for example, Harvey v The State of Western Australia [2017] WASCA 149 [21]; Greenfield v The State of Western Australia [2019] WASCA 29 [30] and Lee v The State of Western Australia [2019] WASCA 137 [22].
As this court observed in HNA,[94] ordinarily, as a matter of fact, a term of immediate imprisonment is the only appropriate sentencing option for offences against s 6(1) and s 7(1) of the Misuse of Drugs Act because of the harm caused by illicit drugs such as cannabis, and the need for general deterrence. The imposition of a suspended term of imprisonment is, as a matter of fact, exceptional. The incentives, financial and otherwise, to participate in the distribution of illicit drugs must be counterbalanced by a clear and certain understanding that such involvement will ordinarily, as a matter of fact, result in a penalty of immediate imprisonment. Because of the need for general deterrence, matters personal to an offender ordinarily have less weight.
[94] HNA [34], [39]; Nguyen v The State of Western Australia [2019] WASCA 149 [29]; see also Cartwright v The State of Western Australia [2010] WASCA 4 [9].
Returning to the present case, the cultivations the subject of counts 3 and 5 reflected a high level of criminality. As already noted, both grow houses had elaborate and sophisticated hydroponic systems for growing cannabis for profit and they were being used to grow a substantial number of plants, namely 71 plants for count 3 and 341 plants for count 5. The extent of the appellant's involvement in those offences is elucidated earlier in these reasons in resolving ground 1. The appellant's involvement in the cultivations the subject of counts 3 and 5 was by no means minor or low‑level. In that regard, relevant features of her offending include the following:
(1)The appellant was the lessee of the Ballajura property and purchased items for use in the cultivation process in relation to the Gwelup property. Involvement of that kind elevates the seriousness of the offending.[95]
(2)The appellant was involved in count 5 over a period of months and her involvement in the cultivation the subject of count 3 was far from fleeting.
(3)The appellant was involved in the cultivation of cannabis in more than one grow house.
[95] See, for example, Lee [29] and Nguyen v The State of Western Australia [2020] WASCA 67 [46].
The judge found, without challenge on appeal, that the appellant must have obtained a benefit from the offending, in sharing in some of the proceeds obtained by Mr Tran.[96]
[96] ts 118.
The main mitigating factors were the appellant's plea of guilty, her prior good character, the hardship the appellant would suffer as a consequence of being separated from her children by her imprisonment and, most significantly, the exceptional circumstances constituted by the hardship that would be occasioned to the appellant's own children as a consequence of her incarceration.
The appellant's plea of guilty was not entered at the first reasonable opportunity. The judge awarded a discount of 18% under s 9AA of the Sentencing Act 1995 (WA).
There are limits on the extent to which hardship to an offender's family, even when it constitutes exceptional circumstances, can affect the determination of the appropriate sentence. The extent to which it may be taken into account depends upon the gravity of the offence and the circumstances of the case. The more serious the offence, the less the court has the capacity to mitigate punishment, having regard to hardship to an offender's family. That is particularly so in a case where the predominant sentencing considerations are personal and general deterrence. The period over which the offences were committed can also be a relevant consideration.[97] The seriousness of the offending conduct may require immediate imprisonment notwithstanding exceptional hardship to an appellant's family arising from imprisonment.[98] The court's concern for the hardship caused to an offender's family by the offender's imprisonment cannot lead the court to impose a sentence that is not commensurate with the seriousness of the offence, as required by s 6 of the Sentencing Act.
[97] The State of Western Australia v Chapman [2012] WASCA 203 [119] ‑ [122]; HJT v The State of Western Australia [2020] WASCA 120 [59].
[98] See, for example, Adams v The Queen [2003] WASCA 91 [57] ‑ [58]; R v Hinton [2002] NSWCCA 405; (2002) 134 A Crim R 286 [35].
The effect of s 76(3) and s 81(3) of the Sentencing Act is that if the only appropriate sentence for any one of the offences for which the appellant was sentenced was one of immediate imprisonment, suspension of the others was not permissible. In this case, taking into account what we have said at [81] ‑ [90] above, in our view, it was not open to suspend the term of imprisonment in relation to count 5. Consequently, it was not open to the sentencing judge to suspend any of the terms of imprisonment for the appellant's offences.
For these reasons, in our opinion, it was well open to the sentencing judge to conclude that only immediate imprisonment would be commensurate with the seriousness of the appellant's offending. Indeed, as we have said, in the circumstances, that was the only reasonable conclusion.
For the above reasons, we would refuse leave to appeal in respect of ground 2.
Application to adduce additional evidence on appeal
In the course of his reply, senior counsel for the appellant sought leave to adduce additional evidence, largely of an expert character, concerning the effect, since she was sentenced, of the appellant's incarceration upon her children, such evidence to be relied upon in any resentencing if a ground of appeal were established.[99]
[99] Appeal ts 28 ‑ 30.
As already noted, we made an order at the end of the hearing dismissing that application. We made that order for two independent reasons.
First, the contingency which the appellant sought to rely upon to adduce the proposed additional evidence was not and would not be fulfilled, as the court had unanimously formed the view that the appeal should be dismissed.
Secondly, and in any event, against the background of the history of these proceedings, the extreme lateness of the application meant that it was not in the interests of justice to grant leave.
The question of the effect of the appellant's imprisonment upon her children was a central focus of the defence submissions on sentencing in the court below. Indeed, it was the subject of an application for leave to adduce further evidence before the sentencing judge.
In the present case, Buss P made an urgent appeal order, in light of the nature of the contention advanced by ground 2 and the appellant's relatively short sentence.
As is or should be well known, this court's routine practice is to receive all relevant material to enable it to resentence in the event an appeal is upheld in the course of the hearing of the appeal. Had the appellant wished to rely on additional evidence as to the effects of her imprisonment upon the children in the period since she was sentenced, she had every opportunity to do so in the lead‑up to the appeal. Notwithstanding that, and notwithstanding the background to which we have already referred, it was only in the course of his oral reply submissions that senior counsel for the appellant sought leave to adduce evidence of the kind referred to.
Conclusion
For the above reasons, we made the orders set out in [4] above.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Associate to the Honourable Justice Beech
20 JULY 2021
17
0