Nguyen v The State of Western Australia - [2019] WASCA 149

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   NGUYEN -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 149
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   3 SEPTEMBER 2019
DELIVERED          :   16 SEPTEMBER 2019
PUBLISHED           :   24 SEPTEMBER 2019
FILE NO/S:   CACR 88 of 2019
BETWEEN:   HOANG DIEP NGUYEN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   LEVY DCJ
File Number             :   IND 573 of 2018

Catchwords:

Criminal law - Appeal against sentence - Cultivation of cannabis with intent to sell or supply to another - Fraudulent appropriation of power - Where offender's only offending act was to supply a photograph of himself knowing that it would be used to create a false identification to assist in the cultivation of cannabis in a sophisticated large scale hydroponic operation - Whether it was open to the sentencing judge to be satisfied that suspended and conditionally suspended imprisonment were inappropriate sentencing options

Legislation:

Criminal Code (WA), s 390
Misuse of Drugs Act 1981 (WA), s 7(1)(a)
Sentencing Act 1995 (WA), s 39, s 76(3)(b), s 80(5), s 81(3)(b)

Result:

Appeal allowed
Appellant resentenced

Category: D

Representation:

Counsel:

Appellant	:	Mr S R McGrath
Respondent	:	Mr J A Scholz

Solicitors:

Appellant	:	Morris Law Pty Ltd
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Cluett v The State of Western Australia [2019] WASCA 111
Fenton v The State of Western Australia [2015] WASCA 255
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
McIntyre v The State of Western Australia [2016] WASCA 150
Naysmith v The State of Western Australia [2013] WASCA 32
R v Pham [2015] HCA 39; (2015) 256 CLR 550
Rillotta v The State of Western Australia [2017] WASCA 55; (2017) 266 A Crim R 32
Tapper v The State of Western Australia [2016] WASCA 140
The State of Western Australia v Baldini [2015] WASCA 39
Trajkoski v The State of Western Australia [2008] WASCA 130

REASONS OF THE COURT:

On 16 September 2019, the court made the following orders in this appeal:
(1)Leave to appeal is granted on ground 2.
(2)The appeal is allowed.
(3)The sentences imposed on the appellant in respect of District Court Perth indictment 573 of 2018 are set aside and the following sentences are substituted:
(a)For the offence against s 390 of the Criminal Code: 1 month's imprisonment suspended for 15 months.
(b)For the offence against s 7(2) of the Misuse of Drugs Act: 10 months' imprisonment suspended for 15 months.
The court indicated that reasons for making these orders would be published later. These are our reasons for making those orders.

Summary

On 7 May 2019, the appellant was convicted on his pleas of guilty of two offences relating to a cannabis growing operation at a rented house in Gosnells. The first offence was the fraudulent appropriation of electricity the property of Western Power, contrary to s 390 of the Criminal Code (WA). The second offence was the cultivation of cannabis with intent to sell or supply it to another, contrary to s 7(1)(a) of the Misuse of Drugs Act 1981 (WA). The appellant was sentenced to 16 months' immediate imprisonment for the cannabis offence. He received a concurrent sentence of 6 months' immediate imprisonment for the fraudulent appropriation of electricity. The total effective sentence was therefore 16 months' immediate imprisonment.
The appellant now appeals against sentence. In our view, the appeal should be allowed on the basis that it was not open to the sentencing judge to be satisfied that suspended or conditionally suspended imprisonment were inappropriate sentencing options.

Circumstances of offences

The appellant was sentenced with three other persons who were involved in a large-scale cannabis growing operation, conducted in six houses in which electricity meters were bypassed in order to power elaborate and expensive hydroponic growing systems. One of those persons was Van Thao Nguyen, who was convicted of the same offences and a number of other offences associated with the larger operation.
The charges to which the appellant pleaded guilty related to the Gosnells house. Van Thao Nguyen rented the Gosnells house in April 2016, using the name 'Michael'. He attended the property manager's residence to make rental payments in cash.[1]
[1] Trial ts 780.
At about 12.30 am on Tuesday, 24 January 2017, police executed a search warrant at the Gosnells house, which was unoccupied at the time of the search. Five rooms of the house had been converted and modified to cultivate cannabis. Each room contained apparatus and equipment associated with the cultivation of cannabis. Hooks in the ceiling were used to hold lighting and carbon filters, improvised transformer brackets, electrical power cords, nutrients, plastic pots and pumps as well as 50 cannabis plants in various stages of growth. The five rooms in the grow house were set up with numerous lights which were set to 12 hours per day for adult plants and 19 hours per day for juvenile plants. Each room also contained an air filtration system.[2]
[2] Trial ts 780 - 781.
The Gosnells house sustained damage in the process of establishing the power bypass and hydroponic setup, including water damage to the floors and numerous holes in the ceilings.[3]
[3] Trial ts 781.
Western Power technicians attended the property and identified a power bypass. This resulted in the revenue meter not recording power consumed by the hydroponic system. The power bypass resulted in considerable loss of revenue for the retailer and unsafe conditions relating to the wiring, which posed a risk to the public. The estimated actual energy replacement was calculated to cost $25,623.58.[4]
[4] Trial ts 781.
The power account for the Gosnells house was in the name of Danny Tra and there were letters in the mailbox addressed to Danny Tra. There is no person with the name Danny Tra in police databases. Police had located and seized a false New South Wales driver licence in the name of Dany Tran during the search of another house associated with the criminal enterprise on 17 January 2017. Police also located other cards, including a Medicare card and Westpac debit card, in the name of Dany Tran at a third premises. The appellant's photograph was used in the false driver licence.[5]
[5] Trial ts 781.
The indictment pleaded that the offences occurred between 27 June 2016 and 24 January 2017. 27 June 2016 was the date on which the electricity account for the Gosnells house was established. 24 January 2017 was the date on which police executed a search warrant at the Gosnells house.
When interviewed by police, the appellant admitted he was the person in the photograph of the false driver licence. He admitted that he gave the photograph to a friend, but said that he had not seen the licence or bank cards in the name of Dany Tran before. He later admitted that he took photographs of the identification on his phone and said that he was told to take them so that he could remember the name.[6] This last admission related to a photograph of the false driver licence found on the appellant's phone.
[6] Trial ts 781 - 782; appellant's VROI ts 16 - 17.
The appellant was sentenced on the basis that he was liable as an aider under s 7(b) of the Criminal Code.His act which aided or enabled the establishment of the Gosnells cannabis grow house was providing his photograph. The appellant understood that the photograph would be used to create a false identification, which would be used to assist in the cultivation of cannabis. The appellant provided the photograph knowing that the cannabis cultivation business was on a large scale using multiple houses.[7]
[7] Trial ts 838.

Personal circumstances

The appellant was 22 years old at the time of the offences and 25 years old at the time of sentence. He came to Australia with his family from Vietnam in 2010, when he was 16 years old. He attended high school in New South Wales, which he left in year 12. Since that time, he had been employed in various positions. He married his wife in 2015, and they lived with other members of the appellant's family prior to his incarceration.[8]
[8] Trial ts 839.
The appellant had no criminal record prior to committing these offences, although he had been convicted of possessing cannabis at a house in Thornlie on 17 January 2017, for which he was fined $1,000.

Sentencing judge's approach

The sentencing judge observed that, while the appellant had only been convicted of two offences relating to the Gosnells house, it is clear that the appellant was aware that he was assisting in a far larger operation. He participated in the cultivation of cannabis at a house in Thornlie, where his DNA was found, for which he was fined $1,000 in the Magistrates Court. He was arrested at a warehouse of a garden supplies business that had supplied equipment to the grow houses. There were photographs on his phone showing the appellant, another person and cannabis plants at a grow house in Beckenham.[9]
[9] Trial ts 838.
The sentencing judge said that the appellant would be sentenced on the basis that, with some knowledge of the scale and purpose of the cannabis growing operation, he enabled the establishment of the Gosnells grow house. The appellant did this by providing a photograph of himself that he knew would be used to create a false identification to be used to assist in the cultivation of cannabis at that address. The sentencing judge said that the appellant would 'in no way be sentenced in these proceedings for anything to do with either' the Thornlie or Beckenham houses.[10]
[10] Trial ts 838.
The sentencing judge noted that the appellant's pleas of guilty came very late (two days before the trial was listed to begin), but that it was nonetheless still deserving of a discount. His Honour applied a discount of 10% under s 9AA of the Sentencing Act 1995 (WA).[11]
[11] Trial ts 840.
The sentencing judge observed:[12]
In terms of other mitigating factors there is, of course, your remorse and your youth. In my view, I also accept that comparatively you played a lesser role than the other offenders. Nonetheless, your role was still of importance in the overall scheme of things.
[12] Trial ts 840.
After again noting that the appellant's pleas of guilty, youth and remorse were mitigating factors, the sentencing judge said that the appropriate sentence was 6 months' imprisonment for the fraudulent appropriation of power offence and 16 months' imprisonment for the cannabis offence. The sentencing judge then said:[13]
With respect to the offending, I consider that both offences were committed as part of one enterprise and part of the same conduct, that is, enabling the property to be used for the purposes of cultivation. Consequently, in my view, it would be appropriate to order that both terms be served concurrently.
I've considered carefully whether or not it would be appropriate to suspend the terms of imprisonment. In my view, it would not. In my view, only a term of immediate imprisonment would adequately reflect all of the relevant factors in this case.
[13] Trial ts 847.
The sentencing judge then imposed the total effective sentence of 16 months' immediate imprisonment. The appellant was made eligible for parole, and the sentence was backdated to 18 April 2019 to take account of time spent in custody on remand.[14]
[14] Trail ts 847 - 848.

Grounds of appeal

The appellant appeals against sentence on three grounds. Ground 1 alleges an infringement of the parity principle, based on an insufficient difference between the appellant's sentence and those of his co‑offenders Van Thao Nguyen and Thi H Tran. Ground 2 contends that the appellant's sentence was manifestly excessive as to type, alleging that a suspended sentence should have been imposed. Ground 3 contends that the sentence of 16 months' immediate imprisonment for the cannabis offence was manifestly excessive as to length.

Disposition

In our view, ground 2 is established. In all the circumstances, it was not open to the sentencing judge to be satisfied that suspended or conditionally suspended imprisonment were inappropriate sentencing dispositions. The decision to impose sentences of immediate imprisonment was, in all the circumstances, unreasonable or plainly unjust.
The principles relevant to allegations of implied error are well established, and were summarised in Kabambi v The State of Western Australia.[15] It is unnecessary to repeat those principles here.
[15] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
It is also well established that, under s 39 and related provisions of the Sentencing Act, a sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation. In a particular case, the objective features of an offence may outweigh the personal considerations of rehabilitation.[16]
[16] Tapper v The State of Western Australia [2016] WASCA 140 [68] - [70] and the cases there cited.
It is not disputed that the seriousness of the offending in this case was such that only a sentence of imprisonment was warranted. The question for this court is whether it was open to the sentencing judge to conclude that it was inappropriate to suspend or conditionally suspend the sentences of imprisonment he intended to impose.[17]
[17] See Tapper [75]; McIntyre v The State of Western Australia [2016] WASCA 150 [19].
The maximum penalty for an offence against s 7(1)(a) of the Misuse of Drugs Act, relating only to cannabis, is 10 years' imprisonment and a fine of $20,000. The maximum penalty for the offence against s 390 of the Criminal Code is 3 years' imprisonment.
Case law in this court in respect of sentencing for large-scale commercial cultivation of cannabis was summarised in Rillotta v The State of Western Australia[18] and Lee v The State of Western Australia.[19]
[18] Rillotta v The State of Western Australia [2017] WASCA 55; (2017) 266 A Crim R 32 [21] - [34].
[19] Lee v The State of Western Australia [2019] WASCA 137.
In HNA v The State of Western Australia,[20] this court observed that:
It is established that ordinarily, as a matter of fact, a term of immediate imprisonment is the only appropriate sentencing option for offences against s 6(1) and 7(1) of the Misuse of Drugs Act. The gravamen of the offences created by those sections is the possession, manufacture, sale, supply or cultivation of illicit drugs which cause significant damage in, and to, the community. The imposition of a suspended term of imprisonment for these offences is, as a matter of fact, exceptional.
[20] HNA v The State of Western Australia [2016] WASCA 165 [34], citing Fenton v The State of Western Australia [2015] WASCA 255 [18] ‑ [19] and The State of Western Australia v Baldini [2015] WASCA 39 [23] ‑ [28].
The court in HNA also noted that the cultivation of a commercial quantity of cannabis plants with high value is capable of satisfying a sentencing court that suspended and conditionally suspended imprisonment are not appropriate sentencing options.[21] The court noted that it was unable to locate any appellate decision in this State where a suspended or conditionally suspended term of imprisonment has been imposed on a person involved in a commercial cannabis operation of significant scale.[22]
[21] HNA [36], citing Trajkoski v The State of Western Australia [2008] WASCA 130 [26] ‑ [27].
[22] HNA [36].
However, even if it be the case that ordinarily or generally a term of immediate imprisonment is the appropriate penalty for an offence, the sentencing judge is not relieved of his or her obligation to assess whether, having regard to all relevant sentencing factors in the case under consideration, it is appropriate to impose a lesser sentence. The question for the sentencing judge is whether, having regard to all relevant sentencing factors, the case does not require the imposition of the generally appropriate type of sentence for the offence.[23]
[23] Naysmith v The State of Western Australia [2013] WASCA 32 [25]; Cluett v The State of Western Australia [2019] WASCA 111 [59].
The exceptional feature of the present case is the unusually limited and peripheral involvement that the appellant had in the offending. It is established that the characterisation of an offender's role in a drug enterprise must not obscure the assessment of what the offender has done.[24] In the present case, the only act for which the appellant was to be punished was providing a photograph of himself to other persons involved in the criminal enterprise. He did so knowing the nature and scale of the enterprise, and that the photograph was to be used to create a fake identification to be used to assist in the cultivation of cannabis. The inference in the present case was that the false identification was used to establish the electricity account for the Gosnells house.
[24] R v Pham [2015] HCA 39; (2015) 256 CLR 550 [34].
The appellant was not found in possession of the cannabis and was not found to have done anything to have cultivated or harvested the cannabis, or diverted the power. Nor was it alleged that the appellant created the false driver licence or other false identification in the name of Dany Tran, or did anything to create the electricity account for the Gosnells house. The judge did not find that the appellant was to receive any financial gain from providing his photograph.
In our view, the limited nature of the assistance provided distinguishes the present case even from those cases where an offender is paid to 'sit' with or harvest a crop for modest remuneration. While the overall cannabis growing operation was very serious, the nature of the assistance provided by the appellant was not such as to make his offending so serious that immediate imprisonment was necessarily the only appropriate sentencing option. None of this court's decisions referred to above have considered involvement in the cultivation or possession of cannabis which has been so limited and peripheral.
A sentence for an offence against s 390 of the Criminal Code that is associated with the operation of a cannabis grow house will ordinarily, as a matter of fact, attract a sentence of immediate imprisonment. However, that is not ordinarily the consequence of the seriousness of the offence of fraudulent appropriation of electricity viewed in isolation or the harm to the community caused by depriving electricity providers of revenue. Rather, it is ordinarily the consequence of the fact that the sentence under s 390 is imposed in conjunction with a sentence for a serious cannabis offence. As the cannabis offence will ordinarily be of such a nature as to demand the imposition of a sentence of immediate imprisonment, suspended or conditionally suspended imprisonment will not in any event be an available sentencing option for the offence against s 390. That is because suspended or conditionally suspended imprisonment may not be imposed if the offender is serving or is yet to serve a term of imprisonment that is not suspended.[25]
[25] Sentencing Act, s 76(3)(b), s 81(3)(b).
In the unusual circumstances of the present case, the appellant's conduct in aiding the commission of an offence against s 390 of the Criminal Code was not so serious as to require a sentence of immediate imprisonment. A sentence of immediate imprisonment was not open for that offence, unless a sentence of immediate imprisonment was the only appropriate sentence for the appellant's cannabis offence (so that suspended or conditionally suspended imprisonment were not available sentencing options for the offence against s 390).

The appellant was a young man with good antecedents who was found to be remorseful for his conduct. He has good family support and a good work history. He does not have any substance abuse or mental health issues that give rise to particular treatment needs.[26]
[26] Trial ts 809, 839 - 840.
Some of the facts found by the sentencing judge are capable of giving rise to a suspicion that the appellant may have had some greater involvement in the cannabis growing operation. However, the appellant is not to be sentenced on the basis of a suspicion. Rather, he must be sentenced based on what he has been established to have done. The sentencing judge's reasons, referred to at [17] above, expressly and correctly identify the factual basis on which the appellant was to be sentenced. However, in our respectful view, a sentence of 16 months' immediate imprisonment was disproportionate to the criminality of the appellant's act of providing a photograph of himself to other persons who (in a manner the appellant anticipated) created a false identification and used it to establish an electricity account for the Gosnells house.
In our view, in the unusual circumstances of this case, it was not open to the sentencing judge to be satisfied that suspended imprisonment or conditionally suspended imprisonment were inappropriate sentencing options. The decisions to impose sentences of 16 months' immediate imprisonment for the cannabis offence and 6 months' immediate imprisonment for the offence against s 390 of the Criminal Code were, in our view, unreasonable or plainly unjust. The sentences of immediate imprisonment were manifestly excessive as to type.

Resentencing

It followed, in our view, that different sentences should have been imposed. It then fell to this court to determine the appropriate sentences for itself, so that it was unnecessary to deal with grounds 1 and 3.
Having regard to the above matters, and the fact that the appellant had served nearly 5 months in custody, we imposed a sentence of 10 months' imprisonment, suspended for 15 months, for the cannabis offence. We imposed a sentence of 1 month's imprisonment, suspended for 15 months, for the offence against s 390 of the Criminal Code. As the sentences were suspended, the issue of concurrency did not arise.[27] In arriving at that sentence, we, like the sentencing judge, allowed for a discount of 10% under s 9AA of the Sentencing Act.
[27] See s 80(5) of the Sentencing Act.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Research Associate/Orderly to the Honourable Justice Mitchell
24 SEPTEMBER 2019