Nguyen v The State of Western Australia
[2020] WASCA 67
•1 MAY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NGUYEN -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 67
CORAM: BUSS P
BEECH JA
HEARD: 14 APRIL 2020
DELIVERED : 1 MAY 2020
FILE NO/S: CACR 187 of 2019
BETWEEN: QUAN H NGUYEN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: VERNON DCJ
File Number : IND 1385 of 2019
IND 1386 of 2019
Catchwords:
Criminal law and sentencing - Application for leave to appeal against sentence - Five offences of cultivation of cannabis with intent to sell or supply and four offences of possession of money reasonably suspected of being unlawfully obtained - Whether total effective sentence of 5 years 6 months' imprisonment infringes the first limb of the totality principle
Legislation:
Criminal Code (WA), s 417(1)
Misuse of Drugs Act 1981 (WA), s 7(1), s 34(2)
Result:
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | S R McGrath |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Patti Chong Lawyer |
| Respondent | : | Director Of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Ha v The State of Western Australia [2019] WASCA 69
HNA v The State of Western Australia [2016] WASCA 165
Kabambi v The State of Western Australia [2019] WASCA 44
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
JUDGMENT OF THE COURT:
Introduction
The appellant was convicted, on his pleas of guilty, of nine offences in two indictments: five offences of cultivating a prohibited plant, namely cannabis, with intent to sell or supply it to another; and four offences of being in possession of money reasonably suspected of being unlawfully obtained.
The appellant was involved in cultivating cannabis plants at five properties in metropolitan Perth. Police found, at each property, cannabis plants, equipment used for growing cannabis plants and electrical bypasses to divert electricity to equipment without it passing through the meter. In total, police seized over 400 cannabis plants from the five properties. Police also searched the appellant's home where they found several sums of cash, totalling almost $23,000, reasonably suspected to have been unlawfully obtained.
The sentencing judge imposed sentences which produced a total effective sentence of 5 years 6 months' imprisonment.
The appellant seeks leave to appeal his sentence on the sole ground that the total effective sentence infringes the first limb of the totality principle.
For the reasons that follow, in our opinion there is no merit in the appellant's ground of appeal. Consequently, leave to appeal must be refused and the appeal dismissed.
The facts
The facts of the appellant's offending were[1] and are[2] not in dispute. They may be summarised as follows.
Indictment IND 1386 of 2019
[1] ts 18, 25.
[2] Given the terms of the sole ground of appeal; see also appellant's submissions [10] ‑ [18].
On 19 October 2016, police executed a search warrant at a property in Maddington. Several rooms in the Maddington property were converted and used for the sole purpose of cultivating cannabis. Each room contained apparatus and equipment associated with that purpose, namely, suspended lighting and carbon filters, electrical power cords, nutrients, plastic pots and punts. In total, police seized 116 cannabis plants from the property. The plants were at various stages of maturity and were all hydroponically cultivated.[3]
Indictment IND 1385 of 2019
Count 1
[3] ts 17.
On 14 March 2017, the appellant entered a lease for a property in Bedford (Bedford property) for the purpose of converting its use to growing cannabis. Subsequently, an unknown person or persons installed an electricity bypass to divert electricity to equipment used for growing cannabis without that electricity passing through the meter. Other equipment for the cultivation of cannabis was also installed, including lighting, timers, transformers, heating, irrigation and ventilation.[4]
[4] ts 13.
On 26 February 2018, police executed a search warrant at the Bedford property. They located the electrical bypass and 98 cannabis plants, at various stages of maturity, growing in plastic pots under operating lights and irrigation. The account holder with Western Power for the Bedford property was a 'Mrs Quan Nguyen'.[5]
[5] ts 13.
On 3 May 2018, police executed a search warrant at the appellant's home in Morley (Morley property). Police found the appellant hiding in a storage compartment in the living room. Police located several mobile phones. The phone number for one of those mobile phones was the mobile contact number for 'Mrs Quan Nguyen', the Western Power account holder for the Bedford property.[6]
Counts 2 ‑ 5
[6] ts 13.
The appellant and another person entered a lease for the Morley property on 15 July 2017.[7]
[7] ts 13.
In the course of executing the search warrant at the Morley property on 3 May 2018, police found several amounts of cash. Police located $415 in a bag located in the storage compartment where the appellant was found hiding (count 2). The appellant stated that the money belonged to him and that he had forgotten that he had put it there. Police located $21,000 in a plastic shopping bag under the oven pan drawer (count 3) and a bundle of $20 notes under the microwave that totalled $1,000 (count 4). The appellant stated that the cash in the sum of $21,000 belonged to another person and that he was paid the cash in the sum of $1,000 to look after that other person's money. Police located $450 inside the appellant's wallet, which was in a Toyota Corolla parked in the garage (count 5). All four sums of cash were seized.
Also at the Morley property, police found grow chemicals and grow medium that are commonly used in the cultivation of cannabis, receipts for the purchase of those chemicals and other documents related to the purchase of equipment.
A GPS tracker for the Toyota Corolla revealed that it had regularly attended several addresses, including a property in Bayswater (Bayswater property), a property in Rivervale (Rivervale property) and a property in Tapping (Tapping property).[8]
Count 6
[8] ts 14.
On 18 June 2017, the appellant entered a lease for the Bayswater property for the purpose of converting its use to growing cannabis. Subsequently, an unknown person or persons installed an electrical bypass to divert electricity to be used in cultivating cannabis without passing through the meter.[9]
[9] ts 14 ‑ 15.
On the same day that police searched the Morley property, namely 3 May 2018, police executed a search warrant at the Bayswater property. House keys that were found at the Morley property operated some of the locks at the Bayswater property. Car keys that were found at the Morley property were the keys for a car parked in the carport of the Bayswater property.[10]
[10] ts 15.
At the Bayswater property, police located an electrical bypass and 24 cannabis plants, at various stages of maturity, growing in plastic pots under lights and irrigation.[11]
Count 7
[11] ts 15.
The appellant entered into a lease for the Rivervale property on 7 November 2017, again for the purpose of converting its use to growing cannabis. Subsequently, an unknown person or persons installed an electrical bypass to divert electricity (to be used in cultivating cannabis) from passing through the meter.[12]
[12] ts 15.
On 4 May 2018, police executed a search warrant at the Rivervale property. Again, police located an electrical bypass and 98 cannabis plants, at various stages of maturity, growing in plastic pots under operating lights and irrigation.[13]
[13] ts 15.
Inquiries revealed that the Rivervale property had been leased to a 'Chenasic Pond', who provided a driving licence number that was later found to be the number from a false driving licence. The owner of the Rivervale property had a contact number for her tenant at that property. That contact number was the phone number of one of the mobile phones that police found during their search of the Morley property.[14]
Count 8
[14] ts 16.
On 16 March 2018, the Tapping property was leased to a 'Corinne Caposit'. In the same manner as the other properties, its use was converted for the purpose of growing cannabis. An unknown person or persons installed an electrical bypass to divert electricity from passing through the meter.[15]
[15] ts 16.
On 4 May 2018, police executed a search warrant at the Tapping property. Police found an electrical bypass and 98 cannabis plants, at various stages of maturity, growing in plastic pots. Police also located various equipment for the cultivation of cannabis including lighting, timers, transformers, heating, irrigation and ventilation.[16]
[16] ts 16.
Further inquiries revealed that, as identification for the lease, 'Corinne Caposit' provided a driving licence number and an Australian passport number that were both from false documents. Further, the photograph used on the false driving licence and false passport was the same as the photograph used for the false driving licence in the name of 'Chenasic Pond', which was used as identification for the lease of the Rivervale property.[17]
[17] ts 16.
Personal circumstances
The appellant was 29 years old at the time of sentencing. He was born in Vietnam. He does not have any siblings and he had an 'uneventful childhood'. His parents are still married and live in Vietnam. They know that he has encountered trouble with the law in Australia.[18]
[18] ts 27.
After the appellant finished year 12 at school, his parents paid for him to move to Australia, which he did in December 2013. He first moved to Brisbane on a student visa, then moved to Melbourne. After leaving university, he worked in several jobs, including waiting tables, fruit picking and labour work on a farm.
The appellant moved to Perth in 2016 after he was recruited by the illegal cannabis growing business. He moved back to Melbourne for some time but returned to Perth in 2017 and continued in the cannabis growing business, entering leases for several of the houses involved in his offending.[19]
[19] ts 27.
The sentencing judge noted the view of the author of the pre‑sentence report that there is little that can be said to have caused the appellant to have engaged in the offending behaviour, save for his becoming involved with bad company and his failure to think about the consequences of his actions.
The appellant was in a relationship while living in Perth but was no longer in that relationship by the time of sentencing. The appellant has a son in Vietnam who was born just before the appellant left Vietnam for Australia. The appellant has not seen his son grow up.[20]
[20] ts 27.
The appellant has no medical conditions and no substance abuse issues, though he used cannabis while he was involved in cultivating it. He does not have any prior convictions in Australia. The appellant has completed several educational programs while on remand.[21]
[21] ts 27.
Sentencing remarks
The seriousness of the offending conduct
The sentencing judge identified the following serious features of the appellant's offending:
(1)The appellant was involved in a 'sophisticated operation for the cultivation of cannabis, in which five rental properties were fitted out with equipment for the hydroponic growing of cannabis and had their electricity meters bypassed for the purpose of growing cannabis without detection'.[22]
(2)The appellant's offending behaviour occurred over a 'significant period of time', from October 2016 to May 2018.[23]
(3)The appellant was involved in cultivating a large quantity of cannabis. In total, police seized over 400 cannabis plants from the five properties.[24]
(4)The judge rejected the appellant's submission that he was merely a 'crop watcher or gardener' whose role was simply to maintain the cannabis plants. The judge found that the appellant was more deeply involved in, and was higher in the hierarchy of, the illegal business, albeit not at the top of that hierarchy. The appellant was involved in leasing the properties and then attending the properties to look after the crops. He was, as he acknowledged, paid $2,000 per week for what he did. Her Honour noted that by establishing the grow houses and maintaining the cannabis plants, the appellant played an 'essential role' in the illegal business.[25]
Mitigating factors
[22] ts 25.
[23] ts 26.
[24] ts 25 ‑ 26.
[25] ts 26.
The judge identified the following mitigating factors:
(1)As regards indictment IND 1386 of 2019, the appellant entered a guilty plea at the earliest reasonable opportunity. Accordingly, the judge reduced the sentence on that indictment by 25%. The appellant's guilty pleas on indictment IND 1385 of 2019 were entered well before trial and at a fairly early opportunity, but not at the earliest reasonable opportunity. The sentencing judge therefore reduced the head sentence on that indictment by 20%.[26]
(2)The appellant had no prior criminal record in Australia and, on that basis, the sentencing judge accepted that he appears to have been a person of good character prior to his offending, which began in October 2016.[27]
(3)The judge accepted that the appellant would find prison more challenging than most because of his lack of English language skills and because his family lives in Vietnam. However, her Honour observed that the appellant's English language skills were improving and that there was a community of Vietnamese prisoners at the prison in which the appellant was being held.[28]
(4)The judge accepted that the appellant was genuinely remorseful. In a letter to her Honour, he apologised for his actions and explained that he knows the impact that his offending has had on society. The appellant further wrote that his time in prison has improved his morality and personality and that it has made him a better person. The sentencing judge found this letter to be genuine.[29]
(5)The judge found that, even putting aside the appellant's inevitable deportation once released, there was very little risk of reoffending.[30]
Sentences imposed
[26] ts 28.
[27] ts 28.
[28] ts 28.
[29] ts 28 ‑ 29.
[30] ts 29.
The maximum penalty for cultivating a prohibited plant, where the offence concerns cannabis only, is 10 years' imprisonment or a fine of $20,000 or both.[31] The maximum penalty for possession of money reasonably suspected to be unlawfully obtained is 7 years' imprisonment.[32]
[31] Misuse of Drugs Act 1981 (WA), s 34(2)(a).
[32] Criminal Code (WA), s 417(1).
The judge observed that the appellant's offending behaviour was so serious that a term of imprisonment was the only appropriate penalty and that, for the same reason, the sentence had to be served immediately.[33] Those conclusions are not, and could not reasonably be, challenged on appeal.
[33] ts 29.
As to totality, the judge said as follows:[34]
The offences represented by counts 3, 4, 5 and 6 on indictment 1385 of 201[9] occurred in the same course of conduct and are closely connected and so closely connected I consider it would be inappropriate to make those sentences cumulative.
Otherwise, the offences are separate offences and subject to considering issues of totality should be served cumulatively. It's still necessary for me to consider totality which means that I must ensure that the total sentence that you serve bears a proper relationship to the overall criminality involved in all of the offences looked at in their entirety and having regard to the circumstances of the case including your personal circumstances.
…
In my view the total effective sentence that meets that goal that bears a proper relationship to the overall criminality of the offending is a term of five years and six months' imprisonment.
In order to achieve that I direct that the sentences imposed on count 1 on indictment 1385 of 201[9] and the count on 1386 of 201[9] be served cumulatively. The balance of the terms in counts 2 to 8 of indictment 1385 of 201[9] be served concurrently with the term on count 1.
[34] ts 30.
The judge imposed the following sentences:[35]
[35] ts 29 ‑ 30.
| Count | Sentence | |
| IND 1386 of 2019 | ||
| 2 years 6 months' imprisonment | Cumulative | |
| IND 1385 of 2019 | ||
| 1 | 3 years' imprisonment | Cumulative |
| 2 | 3 months' imprisonment | Concurrent |
| 3 | 3 months' imprisonment | Concurrent |
| 4 | 15 months' imprisonment | Concurrent |
| 5 | 3 months' imprisonment | Concurrent |
| 6 | 3 years' imprisonment | Concurrent |
| 7 | 3 years' imprisonment | Concurrent |
| 8 | 3 years' imprisonment | Concurrent |
As the judge had indicated, this produced a total effective sentence of 5 years 6 months' imprisonment. The sentence was backdated to commence on 3 May 2018 and the appellant was made eligible for parole.[36]
[36] ts 30.
The sentencing judge made orders for the destruction of the seized plants and for the forfeiture of the seized cash. Her Honour also declared the appellant a drug trafficker.[37]
[37] ts 18.
Ground of appeal
The appellant's sole ground of appeal alleges that the total effective sentence infringed the first limb of the principle of totality, having regard to the overall criminality involved in the various offences, when viewed in their entirety, and in all the circumstances of the case, including those referable to the appellant.
Appellant's submissions
The appellant advances two main arguments in support of his contention that the total effective sentence infringed the first limb of the totality principle. First, he points to the fact that the drug involved was cannabis. Secondly, he asserts that the total effective sentence imposed on the appellant is more akin to that which would be imposed on someone at the top of the hierarchy of an illegal cannabis growing business, whereas the appellant was found not to have been at the top of such a hierarchy.[38]
[38] Appellant's submissions [40] ‑ [41].
The appellant points to four cases said to be comparable, in support of his contention that the first limb of the totality principle was infringed: HNA v The State of Western Australia;[39] Ha v The State of Western Australia;[40] My v The State of Western Australia;[41] and Lee v The State of Western Australia.[42]
[39] HNA v The State of Western Australia [2016] WASCA 165.
[40] Ha v The State of Western Australia [2019] WASCA 69.
[41] My v The State of Western Australia [2018] WASCA 1.
[42] Lee v The State of Western Australia [2019] WASCA 137.
The appellant accepts that the individual sentences were commensurate with the seriousness of the individual offences. While the appellant acknowledges that some degree of accumulation was necessary, he submits that totality required a reduction of the length of the sentence on one of the counts which were ordered to be served cumulatively.
Disposition
For the reasons that follow, the appellant's ground of appeal, and his submissions in support of it, are entirely without merit.
The legal principles relevant to a ground of appeal asserting a breach of the totality principle are well‑established and need not be repeated.[43]
[43] See for example, Kabambi v The State of Western Australia [2019] WASCA 44 [21].
Deterrence is the main sentencing consideration for dealing in prohibited drugs, including cannabis, and matters personal to the offender are accorded correspondingly less weight.[44] 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 within a particular organisation or generally, and whether the offence was committed for commercial gain.[45]
[44] Lester v The State of Western Australia [2011] WASCA 128 [21] ‑ [22]; this passage has been cited with approval in this court many times - see the cases referred to in Lee [22].
[45] HNA [37]; Ha [43].
At the risk of stating the obvious, in considering comparable cases in the context of a totality ground, the number of offences, their distinctness in time and place, and the period over which the offending is sustained are all relevant considerations.
The sentencing judge rightly identified a number of serious features of the appellant's offending. The appellant was involved in five offences of cultivation of cannabis at five different properties. Those offences each carried a maximum penalty of 10 years' imprisonment and a fine of $20,000. In total, he was convicted of cultivating more than 400 cannabis plants. His involvement was more than tending to the crops. He was the lessee of several of the properties and he purchased items for use in the cultivation process. The appellant was involved in a sophisticated operation in which cannabis was grown hydroponically, properties were modified to facilitate the growing of cannabis and electricity was diverted to avoid detection. The appellant's offending conduct began no later than October 2016 and spanned the 18 month period from then until May 2018. His offending was commercially motivated; he was paid $2,000 per week for his services. The appellant's four offences of possessing money reasonably suspected of being unlawfully obtained added a further dimension to his overall criminality. His possession of the cash the subject of count 3 - cash in an amount exceeding $20,000 which he said he was paid to look after - indicated the degree of trust reposed in him by those in charge of the enterprise.
This combination of serious features amply justifies the total effective sentence of 5 years 6 months' imprisonment imposed by the sentencing judge. It also means that, as explained below, none of the cases upon which the appellant relies is reasonably comparable to the present case, nor provides any support for his contention that his total effective sentence infringes the totality principle.
The differences in the offending and in the offender's personal circumstances mean that HNA has no value whatsoever as a comparable case. The offender in HNA committed a single offence and his involvement in the offence was less serious than the appellant's in each of his offences. He had a number of substantial mitigating factors not present in this case, including the provision of significant assistance to the police, depression, bipolar affective disorder and a childhood marred by gender confusion and physical and sexual abuse.[46] Moreover, as this court observed in Ha,[47] the dismissal of the appeal by the offender in HNA against the failure to suspend his term of imprisonment says nothing about the appropriateness of the length of the term, which was not challenged.
[46] HNA [18].
[47] Ha [39].
The offender in Ha was convicted, on his pleas of guilty at the earliest opportunity, of two offences, one of cultivating a prohibited plant (cannabis) with intent to sell or supply it to another and one of possession of a prohibited plant (cannabis) with intent to sell or supply it to another.[48] Both offences arose from a hydroponic cannabis growing operation at a suburban house. This court upheld an appeal on totality grounds against a total effective sentence of 5 years' immediate imprisonment and resentenced the offender to a total effective sentence of 3 years 3 months' immediate imprisonment. In marked contrast to the present case, both offences in Ha arose from a single occasion and were committed at the same location (albeit appearing to reflect an ongoing operation). The offender in Ha was lower in the criminal hierarchy than the appellant in the present case.
[48] Ha [1].
In My, the offender was convicted, on his early pleas of guilty, of seven offences, for which he received 5 years' immediate imprisonment. The offences arose from the offender's operation, with his partner and her son, of a cannabis growing and distribution enterprise at two grow houses. His two offences occurred in a two‑week period (albeit that they indicated an ongoing operation). The offending had some features more serious than the present case: the offender was, as subsequently described by this court, the 'junior partner in the enterprise';[49] and one count involved possession of 8 kg of cannabis. However, as already emphasised, the appellant's offending involved cultivating cannabis at five grow houses over a period of time spanning 18 months. Bearing in mind that the dismissal of an appeal against sentence does not fix the upper limit of an appropriate sentence, the total effective sentence in My is broadly consistent with the appellant's total effective sentence.
[49] Lee [25].
Some of the appellant's submissions invite comparison of the sentences on individual counts in My with sentences on individual counts in the present case. Given that the single ground of appeal makes a totality complaint, such comparison does not assist in the resolution of this appeal.
Lee provides no assistance to the appellant. In that case the offender was convicted, on his pleas of guilty at the first reasonable opportunity, of one count of cultivating cannabis with intent to sell or supply and one count of fraudulently diverting electricity. He was sentenced to 5 years' immediate imprisonment on the former and 12 months' imprisonment, to be served cumulatively, on the latter. This court dismissed the offender's appeal on grounds that the sentence on the first count was manifestly excessive and the total effective sentence infringed the first limb of the totality principle. As the offending in Lee occurred at a single location and on a single occasion (albeit reflecting an ongoing operation), it provides no assistance as a comparator for the present case.
The appellant has fallen well short of demonstrating an infringement of the totality principle. The total effective sentence imposed on him is comfortably within the range open to the sentencing judge on a proper exercise of her discretion, and bears a proper relationship to the overall criminality involved in his offending, taking into account all relevant facts and circumstances, including those referable to the appellant personally. The appellant has not established, even arguably, that error is to be inferred from the sentencing outcome. The total effective sentence was not unreasonable or plainly unjust.
For these reasons, we would refuse leave to appeal on the sole ground of appeal.
Conclusion
For the above reasons, we would refuse leave to appeal and dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SL
Associate to the Honourable Justice Beech1 MAY 2020
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