Nov Sinn v The Queen
[2014] VSCA 149
•23 July 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0142
| NOV SINN | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NETTLE and REDLICH JJA and ALMOND AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 17 June 2014 |
| DATE OF JUDGMENT | 23 July 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 149 |
| JUDGMENT APPEALED FROM | R v Sinn (Unreported, County Court of Victoria, Judge Chettle, 21 June 2013) |
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CRIMINAL LAW – Sentence – Parity – Two charges of trafficking a commercial quantity of a drug of dependence (cannabis) – Parity – Whether total effective sentence of 5 years with a non-parole period of 3 years and 6 months relative to sentence imposed on a co-offender offended principle of parity – Teng v R (2009) 22 VR 706 723, DPP (Cth) v Peng [2014] VSCA 128, R v Wolfe [2008] VSCA 284 considered – Individual differences in personal circumstances did not explain minimal differentiation in sentence – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T Kassimatis | Valos Black & Associates |
| For the Respondent | Mr B F Kissane | Office of Public Prosecutions |
NETTLE JA:
I agree with Almond AJA.
REDLICH JA:
I agree with Almond AJA.
ALMOND AJA:
Nov Sinn (’Sinn’) and his daughter Angela Sinn each pleaded guilty in the County Court to one charge of trafficking in a commercial quantity of a drug of dependence (cannabis L) contrary to s 71AA Drugs, Poisons and Controlled Substances Act 1981 (Vic). Sinn was sentenced on 28 June 2013 as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 2
Trafficking in a drug of dependence (commercial quantity) [Drugs, Poisons and Controlled Substances Act1981 (Vic) s 71AA] 25 years [Drugs, Poisons and Controlled Substances Act1981 (Vic) s 71AA]
5 years
N/A
Total Effective Sentence 5 years Non-Parole Period: 3 years 6 months Pre-sentence Detention Declared: 458 days 6AAA Statement: 6 years and 3 months with a non-parole period of 4 years and 9 months Other orders:
· Forensic sample order pursuant to s 464ZFB(1) of the Crimes Act1958 (Vic)
· Disposal Order pursuant to s 77(1) of the Confiscation Act1997 (Vic)
· Forfeiture Order pursuant to s 33(1) of the Confiscation Act1997 (Vic)
Angela Sinn was sentenced to six years’ imprisonment with a non-parole period of four years. On 4 December 2013, Ashley JA granted the appellant leave to appeal on the ground that his sentence breached the parity principle.
Circumstances of the offending[1]
[1]The prosecution opening on the plea served as an agreed statement of facts which forms the basis of this summary; DPP v Chegne (Unreported, County Court of Victoria, Chettle J, 28 June 2013) (‘Reasons for Sentence’) [5].
During a six month investigation conducted during August 2011 to late March 2012, police identified eight residential premises located in suburbs south east of Melbourne, which were being used for the purpose of the cultivation of cannabis.
During this period, Sinn was observed –
(a)attending the premises, entering and remaining for periods varying between several minutes and several hours;
(b)purchasing timber, plaster screws and wire netting (later used to construct cannabis drying racks);
(c)harvesting large quantities of cannabis plants located at the premises;
(d)attending the Clayton regional landfill site and disposing of rubbish, including in total more than 800 cannabis plant root systems, cannabis branches and leaf, empty bags of potting mix, plant chemicals, fertilisers, and packaging for high powered light globes, double adaptors and extension leads.
On 27 March 2012, search warrants were executed and a total of 1,542 cannabis plants were seized from the premises. Sinn was arrested at his home in Noble Park and placed in police custody. During a search there, police located and seized various items, including 11 sets of keys on key rings and 11 loose keys (belonging to the various premises), approximately $20,000 in cash ($17,500 of which was found concealed within a roof cavity), a Toyota Hiace van, financial documents relating to one of the premises, a homemade drying rack of the same build and design as a rack located at one of the premises, a packaging label for an automatic watering system which was previously observed being installed at one of the premises, 22 used plant pots which displayed several holes consistent with a previously installed automatic watering system, and several empty containers for plant fertiliser chemicals.
When interviewed, Sinn initially stated that after moving from Robinvale to Noble Park, he had been doing casual lawn mowing and maintenance. He admitted he attended several of the premises monthly. When asked about his involvement at each specific location, he told police he only attended at these locations once a month for mowing the lawn and did not know the names or details of any home owners. When shown a photograph of his daughter (Angela Sinn), he initially denied knowing her. When questioned about the drying racks, he initially stated he had only ever made one ‘drying rack’ which he built for the purposes of drying fish. During a later stage of the interview, he admitted that it was his job to remove cannabis waste from the premises, that he was aware that the garbage bags which he disposed of at the landfill site contained cannabis waste, including plants which had previously been harvested, and that he had been inside some of the premises. He also admitted that he had made drying racks for several of the premises.
Concessions
At a joint plea hearing for Sinn, Angela Sinn and another co-offender, the prosecution conceded that:
(a)Sinn’s role was to dispose of the remains of plants, chemical containers and other garbage at the Clayton regional landfill site; deliver new plants and chemicals; purchase hardware items and hydroponic equipment; assist harvesting; buy materials and build drying racks for plants; cut lawns at, and clean refuse from, the premises;
(b)Sinn was not involved in the leasing of the premises, the payment of rent or outgoings, and his enrichment from the trafficking operation was limited to a vehicle (Toyota van) which was bought for him and put in his name.
During the plea hearing, counsel for Sinn conceded that Sinn received money from time to time from his daughter (Angela Sinn) who, it was said, gave him a few hundred dollars here and there.
Sentencing by the sentencing judge
The sentencing judge accepted that Angela Sinn was a principal of the cultivation and trafficking business; that she employed house sitters to live at the various premises, regularly attended those premises and assisted with transporting and delivering items to facilitate the cultivation of cannabis.
In the sentencing remarks directed to Sinn, the sentencing judge said:
Turning to you now, Nov Sinn, you are now 70 years of age, being born on 25 January 1943 apparently. You are the father of the first prisoner, Angela Sinn.
Your personal history is set out in the report of the psychologist, Jeffrey Cummins, Exhibit NS1. You were born in Cambodia and educated to Year 10 level. During the Khmer Rouge rule years you became separated from your first wife during the fighting and were subsequently arrested and imprisoned for five years. You escaped, went to a refugee camp in Thailand, where you remained for a further five years. You came to Australia with your second wife in 1985. Your co-accused, Angela, is your daughter from your first marriage. You have four daughters from your second marriage, they are aged between 30 and 19 years.
You met and married your current wife in Cambodia in 2002 and were living with her and your two children, aged eight and nine, at the time of your arrest. You came to Australia, as I said, in 1985. Since that time you have worked either as a spot welder, a machine operator and as a farmer. You were in receipt of a disability support pension for some years after 2008 and are now in receipt of the old age pension.
Your counsel conceded that you were less than honest with Mr Cummins in relation to your involvement in the cannabis growing enterprise and that as with the police, you minimised your involvement in that scheme. Your assertions that you did not know that cannabis was being grown when you were delivering rubbish to the Clayton landfill site, is admitted by your counsel to be untrue. It is accepted, however, by the Crown that your role was that of a functionary, performing menial tasks and that you were not involved in financial matters. It would appear you were paid for the work you did.
References from three of your daughters and one from a brother-in-law, were tendered upon your plea, Exhibit NS2. You too enjoy family support and respect. You are said to be a good provider and a caring father and a man who has overcome much hardship in his life. I take the reference material into account in sentencing you.
Again I take into account your plea of guilty. You too pleaded guilty at an early stage and thereby saved the community the time and expense of the criminal trial. You too are entitled to a reduction to the sentence that I would otherwise impose, and I will return to the affect of that reduction subsequently.
I take into account your role in the cannabis syndicate. I accept your role is as conceded by the prosecution. You were not a principal in the enterprise and did not share in the profits or plan the criminal conduct.
I take into account your lack of prior convictions. Your prior good character and the fact that you fall to be sentenced as a 70 year old man, with a troubled history, yet a man with no prior criminal offending. Further, I take into account your limited co-operation with the police. You made some significant admissions, even though you lied and minimised your role. I accept that given your age, lack of prior convictions and family support, that you are unlikely to re-offend in the future.[2]
[2]Reasons for Sentence [32], [39].
Ground of appeal - Parity
The sole ground of appeal is that the sentence imposed on Sinn relative to the sentence imposed on his co-offender Angela Sinn and the respective non-parole periods –
(a)disclose insufficient disparity; and
(b)are such as to engender in Sinn a justifiable sense of grievance.
Appellant’s submissions
Counsel for Sinn submitted that the role of each offender was starkly different; that Angela Sinn was a principal, an organiser and a ‘shareholder’ of a significant criminal enterprise designed to make substantial profits, whereas Sinn was engaged essentially to perform menial tasks for little reward as conceded by the Crown on the plea.
It was submitted that the offenders shared a constellation of common mitigating factors, including early pleas of guilty,[3] cooperation with police,[4] disadvantaged and difficult early lives,[5] good work histories,[6] strong family support,[7] and good prospects for rehabilitation.[8] Neither had been in trouble with the law before.[9]
[3]Ibid [25], [37].
[4]Ibid [23],[24], [39].
[5]Ibid [16]-[21], [33]-[34].
[6]Ibid [17]-[19], [34].
[7]Ibid [26], [36].
[8]Ibid [27], [39].
[9]Ibid [24], [39].
There were distinguishing mitigating features applicable to Angela Sinn, namely, that she had made an offer of assistance to authorities in their investigation of another offender, that her plea of guilty was accompanied by genuine remorse, that she would be punished by separation from her children which would make her time in prison more onerous, and that she suffered from mild symptoms of depression and anxiety which would make her time in prison more onerous.[10] She had also suffered financial detriment to the extent of approximately $55,000 as a consequence of the forfeiture of her car and the equity in her home in Mulgrave.[11] In essence, the appellant submitted that, despite these distinguishing features, the sentences ought to have reflected the stark differences in their respective roles and thus their respective culpability.
[10]Ibid [23], [26], [28]-[29].
[11]Transcript 118.
Further, it was submitted that whatever the objective appropriateness of the sentence imposed on the appellant, Angela Sinn attracted a head sentence and non-parole period which engendered in the appellant a justifiable sense of grievance or would give the appearance in the mind of an objective observer that justice has not been done.
Crown submissions
Counsel for the Crown submitted that the differences in the roles of Angela Sinn and the appellant provided a legitimate basis for some disparity of sentence, however both offenders were crucial participants in a substantial operation in which they were both significantly involved; that the offending involved the cultivation of cannabis in a commercial quantity across eight separate premises over a period of approximately six months.
The Crown accepted that there were numerous common mitigating factors (in the terms contended for by counsel for the appellant), but submitted that there were significant differences between the appellant and Angela Sinn, notably –
(a)whilst on remand, Angela Sinn had been a model prisoner, was well regarded by the prison authorities and had been appointed a peer listener;
(b)the separation from her four children (aged between 11 and 19) whilst in custody was a significant punishment and would make her time in prison more onerous;[12]
(c)an anxiety condition would make her time in prison more onerous,[13] and
(d)she had offered to give evidence against a principal offender which entitled her to a reduced sentence.[14]
[12]Ibid [28].
[13]Ibid [29].
[14]Ibid [23].
The Crown submitted that a further significant difference was the fact that Sinn cooperated with police only to a limited extent, telling lies during his interview and minimising his role (which was conceded during the plea), and that he had also lied to the clinical and forensic psychologist Cummins during his assessment by minimising his involvement in the enterprise.[15]
[15]Reasons for Sentence [35].
The Crown submitted that these differences sufficiently explained why there was limited disparity between the appellant’s sentence and Angela Sinn’s sentence.
Applicable Principles
In Teng v R,[16] the Court emphasised the importance of the principle of parity as follows:
The principle of parity is fundamental to the community’s sense of justice, for the reasons which Mason J gave in Lowe v R:[17]
Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.
Such is the importance of ensuring appropriate differentiation in sentence, as a fundamental matter of fairness, that a court of criminal appeal can interfere with an otherwise appropriate sentence in order to ensure that the sentencing differentials are just.[18]
[16](2009) 22 VR 706 723 (‘Teng’), [70] (Maxwell P, Ashley JA, Lasry AJA).
[17](1984) 154 CLR 606, 610-11.
[18]Ibid 612; Postiglione v The Queen (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ).
As this Court recently said in DPP (Cth) v Peng, ‘[p]roper concern for parity of sentencing is a fundamental requirement of the rule of law and a condition of just punishment’.[19]
[19]DPP (Cth) v Peng [2014] VSCA 128 (‘Peng’), [33] (citations omitted) (Nettle and Redlich JJA, Priest JA agreeing).
As to the approach to be taken when dealing with a parity ground, the Court in Teng[20] cited with approval the statement of Maxwell P in R v Wolfe:
[T]he question which according to the authorities must be addressed when dealing with a parity ground is whether the appellant could be said to have a ‘justifiable sense of grievance’ about the relativity between the appellant’s sentence and the sentence of the co-offender. … [T]he question whether the appellant’s sense of grievance is justifiable is to be determined by asking whether there were reasonable grounds for the differentiation – or lack of differentiation, as the case may be – between the appellant and the co-offender. If it was reasonably open to the sentencing judge, on the material before the court, to differentiate – or fail to differentiate – between the co-offenders in the way he/she did, then there is no warrant for appellate intervention ...[21]
[20](2009) 22 VR 706, 723 [17] (Maxwell P, Ashley JA, Lasry AJA).
[21]R v Wolfe [2008] VSCA 284, [9] (Maxwell P).
Resolution
The starting point for analysis is the Crown concession that Sinn was not a principal in the enterprise, did not plan the criminal conduct and did not share in the profits. Doubtless he was an active participant and (as the Crown contended) ’an integral cog’ in the enterprise, but his role was to perform relatively menial tasks for which he was modestly rewarded. There was no evidence to suggest that the amounts he was paid represented anything other than payment for hours worked or services performed.
The Crown concession set key parameters for sentencing. Absent mitigating factors in favour of Angela Sinn that could justify the minimal differentiation in the sentences imposed, one would expect Sinn’s substantially differentiated criminal conduct to be reflected in a substantially differentiated sentence.
Viewed in isolation, the appellant’s sentence was within the range reasonably open in the circumstances. The offending conduct involved participation in systematic and substantial cannabis cultivation. Whilst the tasks performed by Sinn might fairly be said to be relatively menial, particularly the tasks relating to cleaning of houses and disposal of refuse, they involved a thorough commitment to the endeavour which included crop management and harvesting over several months in multiple premises and the purchase of paraphernalia associated with indoor hydroponic cropping systems. But that is not the test. The appellant’s sentence cannot be viewed in isolation. It must be considered relative to the sentence of Angela Sinn.
The sentencing judge made no direct or indirect reference to the principle of parity in his sentencing remarks. It may be assumed that his Honour did not totally disregard parity considerations in the instinctive synthesis required to simultaneously sentence three offenders (Sinn, Angela Sinn and a third co-offender). Each received a different sentence.[22] But no explanation is given for the minimal differentiation between the appellant’s sentence and Angela Sinn’s sentence.
[22]The third co-offender was sentenced to three years’ imprisonment with a non-parole period of 18 months.
Whilst Angela Sinn was entitled to the benefit of mitigating factors which were unique to her, there were also mitigating factors which were unique to the appellant. These factors included the fact that he was 70 years old at the time of the plea, his health was less than robust in that he suffered from diabetes, elevated blood pressure, elevated cholesterol levels and a haemorrhoid condition. He had a strong and committed work history from the time of his arrival in Australia in 1985 until 2008. For the following three years, he was in receipt of a disability support pension connected with his health issues. At the time of his arrest, he was in receipt of an age pension.
Furthermore, the value of Angela Sinn’s offer to assist police, though a significant mitigatory factor, should not be overstated. It appeared that the person of interest had not been charged and that the evidence of Angela Sinn would not be enough to support a charge.
In an exchange between counsel for Angela Sinn and the sentencing judge during her plea, his Honour said:
[W]ell the police haven’t charged him, he’s not a suspect. There is no corroboration of her version as I understand it, and he may have even not have gone. She gets credit for offering to help, I agree with all that, how valuable it is is reduced by the fact that he’s not around.
Later in the plea, his Honour said (after discussion):
[I]t’s not much of a discount, put it that way. It’s a hard thing to quantify … but she’ll get a discount for your offer to assist.
It is self-evident from these passages that allowance for this factor would not have greatly reduced Angela Sinn’s sentence.
Finally, a factor relied upon by the Crown, that Sinn initially lied to police and downplayed his role, was taken into account by the sentencing judge, who remarked that the appellant had made significant admissions even though he had lied and minimised his role.[23] This circumstance was not emphasised by his Honour and in my view is unlikely to have had a major influence on the extent of the appellant’s sentence. I also note that these lies must be seen in the context of later admissions made in the same interview.
[23]Reasons for Sentence [39].
Considering the matter overall, the individual differences in personal circumstances, whilst significant, do not explain the minimal differentiation in the head sentences and non-parole periods of co-offenders with markedly different roles; the appellant having a menial role for modest reward and Angela Sinn being a principal, a planner and entitled to a share of profits.
In my view, Sinn has a justifiable sense of grievance. No reasonable grounds are disclosed on the material to justify the minimal differentiation in the sentences and non-parole periods. Accordingly, in my view, there was an error and the appellant should be re-sentenced.
Re-sentencing raises a further issue. In my view, the sentence given to Angela Sinn is very lenient and at the lower end of the range for the extensive criminal conduct in which she was engaged. This circumstance does not preclude Sinn from benefitting from the parity principle. As Nettle and Redlich JJA observed in Peng, ‘[t]he fact that a sentence is low, as long as it is not inappropriately so, does not affect the ’relevance of parity’ or diminish its effect on another co-offender’s sentence’.[24] Even where a sentence is inappropriately low, application of the parity principle may require that a co-offender’s sentence be reduced but not so as to result in a sentence which is inappropriately low. Otherwise, as Chernov JA said in Wilson v R, there would be ‘a justifiable concern in the mind of the public that there is a failure to maintain appropriate sentences’.[25]
[24]Peng [2014] VSCA 128, [35].
[25]Wilson v R (2000) 116 A Crim R 90 , [20]; See also Taleb v The Queen [2014] VSCA 96, [48], [52]; DPP (Cth) v Peng [2014] VSCA 128, [35]–[37].
For completeness, I merely note it is also necessary to have regard to the sentence imposed on the third co-offender to ensure that any new sentence imposed on the appellant by this Court does not give rise to a justifiable sense of grievance in that co-offender.[26]
[26]Green v R (2011) 244 CLR 462.
In the result, I would allow the appeal and re-sentence Sinn to four years’ imprisonment with a non-parole period of three years. Pursuant to s 6AAA of the Sentencing Act 1991, I declare that if the appellant had not pleaded guilty, I would have imposed a sentence of six years’ imprisonment with a non-parole period of four and a half years.
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