Phan v The Queen

[2020] NSWCCA 168

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Phan v R [2020] NSWCCA 168

Hearing dates:

15 June 2020

Decision date:

23 July 2020

Before:

Hoeben CJ at CL at [1];
Rothman J at [79];
Fagan J at [83]

Decision:

(1)   Leave to appeal is granted.

(2)   The appeal is dismissed.

Catchwords:

CRIMINAL LAW – sentence appeal – two offences – knowingly take part in the cultivation of not less than a commercial quantity of prohibited plants and knowingly take part in the cultivation of not less than a large commercial quantity of prohibited plants – offence of participate in a criminal group on a Form 1 – aggregate sentence imposed of 5 years and 6 months with a non-parole period of 3 years and 6 months – challenge to assessment of objective seriousness of offences – whether parity principle breached – whether aggregate sentence manifestly excessive – error in assessment of objective seriousness – need to resentence – no lesser sentence warranted in law.

Legislation Cited:

Crimes Act 1900 (NSW) – s 93T(1)

Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 3A, 21A, 22

Drug Misuse and Trafficking Act 1985 (NSW) – s 23(2)(a)

Electricity Supply Act 1995 (NSW) – s 64(1)

Cases Cited:

Downes v R [2020] NSWCCA 167

Fenech v R [2018] NSWCCA 160

Gill v R [2010] NSWCCA 236

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

Kay v R [2019] NSWCCA 275

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

R v Barri [2004] NSWCCA 221

R v Qutami [2001] NSWCCA 353

Tepania v R [2018] NSWCCA 247

Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category:

Principal judgment

Parties:

Vinc Khac Phan – Applicant
Regina – Respondent Crown

Representation:

Counsel:
G R James AM QC – Applicant
D Patch – Respondent Crown

Solicitors:
Greenfield Lawyers – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s):

2018/20427

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

2 October 2019

Before:

Bennett SC DCJ

File Number(s):

2018/20427

JUDGMENT

1. HOEBEN CJ at CL:

Offences and sentence

The applicant pleaded guilty to two charges in the Parramatta Local Court on 16 May 2019 and asked that a further charge on a Form 1 be taken into account.

Sequence 5 – knowingly take part in the cultivation of not less than a commercial quantity of prohibited plants, namely 165 cannabis plants, by enhanced indoor means at Carlingford between 20 August 2017 and 5 December 2017, contrary to the Drug Misuse and Trafficking Act 1985 (NSW) – s 23(2)(a) for which the maximum penalty is imprisonment for 15 years.

Sequence 6 – knowingly take part in the cultivation of not less than a large commercial quantity of prohibited plants, namely 288 cannabis plants, by enhanced indoor means at Parramatta between 16 September 2017 and 5 December 2017 Drug Misuse and Trafficking Act – s 23(2)(a) for which the maximum penalty is imprisonment for 20 years with a standard non-parole period of 10 years.

Form 1 – participate in a criminal group between 20 August 2017 and 5 December 2017 at Parramatta contrary to the Crimes Act 1900 (NSW) – s 93T(1) for which the maximum penalty is imprisonment for 5 years.

2. His Honour Judge Bennett SC (the sentencing judge) sentenced the applicant to an aggregate sentence of 5 years and 6 months, to commence 14 September 2018 and to expire 13 March 2024, with a non-parole period of 3 years and 6 months, to commence on 14 September 2018 and to expire on 13 March 2022.

3. After discounts of 25 per cent for his pleas of guilty, the indicative sentences were 2 years and 3 months for Sequence 5 and 4 years and 6 months with a non-parole period of 2 years and 6 months for Sequence 6, taking into account the Form 1 offence.

The ratio of the aggregate non-parole period to the total sentence was 63.6 per cent.

4. The applicant sought leave to appeal against sentence on the following grounds of appeal:

Ground 1 – The sentencing judge erred in his assessment of the objective seriousness of the offences;

Ground 2 – The sentencing judge erred in his approach to parity in relation to the first offence, particularly having regard to the co-offender being dealt with for an additional offence and their respective roles in the offence;

Ground 3 – The sentence is manifestly excessive.

FACTUAL BACKGROUND

5. The results of police investigations were set out in an agreed statement of facts. The applicant did not take issue with those facts. The applicant did not give evidence in the sentence proceedings but relied upon assertions by him to his father and partner contained in letters by them addressed to the Court. He also relied on statements to Ms Tatiana Leist, psychologist, whose report was tendered on his behalf.

6. The agreed facts were as follows:

1. The offender was a Vietnamese national who was unlawfully in Australia at the time of the offences.

2. In July 2017, State Crime Command Drug Squad officers commenced investigating properties across North Western Sydney which were suspected of being used by a South East Asian crime syndicate to hydroponically grow cannabis plants.

Offences at Victoria Road, Parramatta

1. At around 10am on 25 October 2017, the applicant and another Vietnamese male, Van Thu Chu, were seen on CCTV footage entering Avis Rent-A-Car (Avis) premises at Revesby.

2. The applicant used his own name to hire a white Toyota Hiace van. Both he and Chu provided the Avis sales agent with NSW driver’s licences in their own names as proof of identity. Chu paid for the hire of the vehicle using a credit card.

3. At about 10.10am, CCTV showed the applicant driving out of the Avis carpark in the Hiace van.

4. At about 3.02pm, police surveillance observed the Hiace van parked in the driveway of premises in Victoria Road, Parramatta (the Parramatta premises). The applicant and an unidentified Asian male were observed to be moving large objects between the Hiace van and the house.

5. At about 3.23pm, the unidentified male got into the driver’s seat of the van and the applicant got into the front passenger seat. The vehicle then drove away.

6. At about 10.30am on 28 October 2017, the applicant returned the Hiace van to Avis Revesby. After the van had been returned, the applicant was seen on CCTV footage getting into the passenger seat of a silver Volkswagen Passat which then departed from the Avis carpark.

7. At about 2.51pm that day, police again observed the Volkswagen Passat parked in the driveway at the Parramatta premises. This vehicle was registered to a Mr Nguyen at that time.

8. At about 6.35pm on 19 November 2017, police surveillance observed the Volkswagen Passat parked in the driveway of the Parramatta premises. At about 6.39pm, a white Toyota Hiace van pulled into the driveway behind the Passat.

9. The Hiace van parked very close to the side of the house so that the sliding door of the van was adjacent to the side entrance of the premises.

10. At about 6.50pm, police observed the applicant and two unidentified Asian males moving back and forth between the van and the house taking objects out of the vehicle and carrying them inside the house. The applicant was seen to be wearing gloves.

11. At about 7.10pm, the van backed out of the driveway and drove towards Parramatta.

12. At about 8.15am on 5 December 2017, police lawfully entered the Parramatta premises pursuant to a warrant.

13. Police discovered that the house was being used to cultivate cannabis by enhanced indoor means. The six rooms of the house contained a total of 288 cannabis plants at various stages of maturity. A total of 63 plants were greater than one metre in height.

14. An elaborate system of heat lamps, reflectors, charcoal filters, irrigation pipes and timers had been installed to facilitate the cultivation of the cannabis plants. The windows were either covered in plastic or boarded up and the walls and floor of each room were covered in white material.

15. Police found a large bank of transformers and power boards in the hallway between two of the main grow rooms. Technicians from Endeavour Energy inspected the property and determined that the electricity supply had been bypassed, providing an unmetered supply of electricity to the residents from the main power grid. Endeavour Energy estimated that the value of the electricity used via the illegal bypass but not paid for, totalled $315,786.82.

16. In the hallway of the property police found a pair of blue and white gardening gloves. Subsequent forensic testing identified the applicant’s DNA profile on the inside of the right gardening glove.

17. In the bathroom of the house were large tubs of liquid fertiliser. Bags of Canna Coco growing medium were found on the floor in the hallway.

18. Police subsequently made inquiries with Harcourts Carlingford, the real estate agency which managed the Parramatta premises. Harcourts provided police with a copy of the residential tenancy agreement which revealed that the property had been leased on 16 September 2017 to an Asian female using the identity “Lucy Kim”.

19. Further investigation established that “Lucy Kim” was in fact Ngan Thi Pham, a Vietnamese national who had rented the property using fraudulent identity documents. Ms Pham has since pleaded guilty to offences in relation to the Parramatta premises and as of 5 December 2017, was awaiting sentence.

20. Harcourts Carlingford also provided police with a copy of a National Australia Bank deposit slip, dated 27 September 2017, for a cash payment of $2,350. The deposit reference had been entered on the slip as “Ref 133” and the name of the depositor had been entered by way of a telephone number as “xxxx558485”. When the real estate agent telephoned this mobile number, an unknown person answered and confirmed that the payment represented the rent for the Parramatta premises.

21. That mobile telephone number was the number that the applicant provided to Australia Post for a PO Box held in his name and was the same mobile number that the applicant provided when he leased storage units at Rent a Space in Padstow.

Offences at Jenkins Road, Carlingford

1. At about 7.15pm on 20 August 2017, police were conducting physical surveillance of premises at Jenkins Road, Carlingford (the Jenkins Road premises). Police observed Duong Dai Le park a Toyota Camry in the vicinity of Jenkins Road. This motor vehicle was registered to Le at that time. At about 7.23pm, police observed Le approaching the Jenkins Road premises while looking up and down the street.

2. At about 7.25pm on the same day, police observed a Toyota Aurion parked off-centre in the driveway of the Jenkins Road premises, with the passenger side door very close to the gate used to access the southern side of the house. The Toyota Aurion was registered to the applicant at that time.

3. On 2 November 2017, the applicant hired another Toyota Hiace van from Avis Rent-A-Car in Hurstviile. The applicant hired the vehicle in his own name.

4. At about 11.15pm on 5 November 2017, police observed the hired Toyota Hiace parked in the driveway of the Jenkins Road premises, at an unusual angle. The passenger side door appeared to be open and was positioned very close to the gate used to access the southern side of the property.

5. Soon after, police observed the Toyota Camry belonging to Le parked about 200 metres away from the Jenkins Road premises.

6. On 5 December 2017, police arrested Le and charged him with cultivation offences in relation to the Jenkins Road premises. Police seized Le’s mobile telephone, which they subsequently unlocked and inspected.

7. Police identified that on 2 December 2017, Le had received a phone call from xxxx558485, a mobile telephone service associated with the applicant and that on 3 December 2017 Le had telephoned the applicant’s number twice. On 4 December 2017, there were text messages between the two phone numbers in Vietnamese.

8. On 1 December 2017, Le had telephoned xxxxxx2470, which was the mobile telephone number that the applicant provided to Avis Revesby on 25 October 2017 when he hired the white Toyota Hiace (see (3)-(8) of the agreed facts).

9. At about 7am on 5 December 2017, police lawfully entered the Jenkins Road premises pursuant to a warrant.

10. Police located a total of 165 cannabis plants at various stages of maturity growing in five rooms of the house. A sophisticated reticulation system and a network of heat lamps had been installed to nurture the cannabis plants. The windows of the property were covered with plaster board sheeting.

11. Integral Energy attended the premises and found that the power mains had been illegally bypassed to provide an unmetered supply of free electricity to the property.

Storage units at Rent A Space, Padstow

1. On 21 June 2018, police obtained search warrants for storage units 817 and 818 at Rent A Space Self Storage, located in Davies Road, Padstow.

2. Police executed the warrants later that day. Inside storage unit 817, police found a bag of bamboo stakes, numerous 50 litre bags of Canna Coco growing medium, and tubs of liquid fertiliser. The fertiliser, Canna Coco and bamboo stakes were of the same type as police had found in the search warrant at the Parramatta premises.

3. Storage unit 818 was empty.

4. Police obtained copies of the Storage Agreement for the two units. The applicant had rented the storage units in his own name on 31 May 2018. The applicant had provided Rent A Space with a copy of his NSW driver’s licence and had given his contact mobile telephone number as xxxx558485.

5. As the applicant could not be located, police charged him on 8 January 2018 with cultivation offences by way of Future Court Attendance Notices and were granted a warrant for his arrest.

6. On 14 September 2018, the applicant was arrested during a vehicle stop at Smithfield. The warrant was executed and he was remanded in custody.

7. On 3 December 2018, police attended the MRRC Silverwater. Police cautioned the applicant with the assistance of a Vietnamese interpreter. The applicant declined to participate in an electronically recorded interview. He consented to providing a buccal swab.

8. The applicant was then charged with additional offences in relation to the Jenkins Road premises.

7. In relation to the Form 1 matter – participate in a criminal group – the agreed facts stated that the applicant was part of criminal group, together with Le and the other unidentified males seen at the two properties. The purpose of this criminal group was to grow, harvest and sell hydroponically grown cannabis for commercial gain. This criminal group operated by leasing residential properties under false identity details in order to facilitate the cultivation of commercial quantities of cannabis undetected by the authorities.

Sentence proceedings

8. The sentencing judge discussed the objective seriousness of the applicant’s offending. He referred to the observations of Johnson J in in Tepania v R [2018] NSWCCA 247 at [112] where his Honour said:

“In sentencing for an offence (whether or not a standard non-parole period offence), a Court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment...”

9. The sentencing judge also had regard to the discussion by Johnson J of moral culpability and the part it played in assessing the objective seriousness of offending.

10. The sentencing judge did not accept that the applicant had been subject to some form of non-exculpatory duress, this having been abandoned by his counsel in the sentence proceedings. His Honour found that on the whole of the material, financial reward was the applicant’s motive in participating in the offending but he was not able to quantify the amount involved.

11. The sentencing judge’s conclusion as to the objective seriousness of the offence involving the large commercial quantity was:

“It is always a matter of judgment as to where the offence should be placed on the scale and minds will often differ, but in my view for this offender the objective seriousness should be assessed to be somewhere between a point at midrange and halfway between midrange and the low end. Perhaps towards the low end of that limited scale.

...

I am satisfied in this case that the offender was engaged upon these enterprises for financial gain. I do not take that into account, however, as an aggravating factor but as part of the factual matrix upon which to assess sentence. It is integral to such conduct that the purpose is financial reward. I am not in a position to make a finding as to precisely what reward the offender was receiving for his involvement in these crimes. The evidence just does not allow me to go so far; the offender did not participate in an interview with police and has not given evidence before me to fill the void in the factual matrix with which the Court is left. I note, however, that he was perfectly entitled to take that position both with the police officers and in this courtroom and he suffers no penalty or adverse finding against him by reason of those decisions.” (Sentence judgment 4.3-5.4)

12. In his consideration of objective seriousness, the sentencing judge said:

“It was said on behalf of the offender that there is no evidence to suggest that the offender was responsible for the installation bypassing the electricity and the theft of the electricity to that value but this was a joint criminal enterprise which involved the use of illegally obtained electricity for the cultivation of these plants and regardless of who it was who actually made the necessary connections and installed the equipment the offender’s participation in the enterprise must carry with it a measure of responsibility for that aspect of the crime. There is a series of images showing the plants as they were found in the premises together with an image of the electrical apparatus by means of which the power source was accessed by way of a bypass.” (Sentence judgment 11.3)

13. In fixing the non-parole period and length of sentence, his Honour had regard to the important guideposts provided by the maximum penalty and in the case of the offence involving a large commercial quantity, the standard non-parole period. His Honour also had regard to the sentencing purposes which underpinned ss 3A, 21A and 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). In relation to the commercial quantity offence, his Honour was “of the view that the other offence which does not carry a standard non-parole period would fall somewhere about the same point along the scale of objective seriousness (as did the more serious offence)” (Sentence judgment 5.9).

14. His Honour had regard to the offence of participate in a criminal group which was dealt with by way of a Form 1, which had to be taken into account when sentencing in respect of the large commercial quantity offence. In relation to that offence, his Honour noted the importance of personal deterrence and denunciation.

15. In relation to the role of the applicant in the offending, his Honour found:

“The evidence does not allow me to conclude that he is a principal in the enterprise but he is, in my view, clearly someone above the role of crop-sitter. He had important roles to play, which are described in the facts before me, over an extended period of time. It is difficult where to place him in the hierarchy but it is significant to note that he must have had some measure of trust extended to him by those with whom he was engaged because he was involved in two enterprises by means of which this cannabis was being cultivated and he performed significant roles as I shall outline.” (Sentence judgment 7.7)

16. His Honour had regard to the specific activities performed by the applicant when he was under observation before his arrest. His Honour found beyond reasonable doubt that the gloves which the applicant was seen to be wearing, one of which contained his DNA, showed that his activities for the syndicate were considerable. The gloves appeared to have been used to transport items to and from the two houses and to and from motor vehicles which were acquired from time to time for unknown tasks relating to the two premises where the offending took place. Given the sophisticated layout and equipment used in each location, his Honour found that the applicant would have been fully aware of the substantial extent of the criminal activities taking place at the two locations.   

17. When considering the role of the applicant, his Honour also had occasion to compare his participation with that of Le. On that issue, his Honour said:

“Another offender, Duong Dai Le, was sentenced on 4 May 2018 to one count of cultivating a prohibited plant in a commercial quantity, with a further offence of using electricity without consent on a Form 1. He was sentenced to imprisonment for 18 months with a non-parole period of 12 months. I have the facts that were before his Honour Judge O’Brien for the determination of that sentence. I have his antecedents, which have him born in 1993, without any antecedent criminal offences in this country, and I have his Honour’s judgment on sentence. He was dealt with as a mere crop-sitter with a very limited role in respect of one of the premises, those at Carlingford, and thus it is not surprising that his sentence fell within the range adopted by his Honour, allowing for a discount of 25% for the utility of his plea of guilty. Moreover, there was compelling evidence of contrition and remorse in that case. When he was arrested he cooperated with the police officers, participated in an interview and made disclosures regarding his role and the benefit that he derived from his participation in that particular plantation.

It was suggested to me on behalf of this offender that parity would have a role to play in the determination of the sentences for this offender. I do not agree with that submission. As was made clear by the Crown in his submission, this is a different case, involving more than one charge, and with this offender engaged upon a more extensive role.” (Sentence judgment 8.1)

18. His Honour made the following findings in relation to the applicant’s subjective case. He was born in 1988 and was aged 31 at the time of sentence. He had no criminal record, either in Australia or Vietnam. A letter from his father asserted that he had a close and supportive family and had excelled at school. He was allowed to travel to Australia in order to study. His parents had borrowed in order to facilitate that opportunity.

19. In 2014 the family business in Vietnam failed and his father became sick and had to retire. He was unable to financially support the applicant in Australia. The father expressed the family’s dismay at the decision by the applicant to involve himself in these crimes.

20. A letter from the applicant’s partner to the court described their close relationship and spoke of his high work ethic. She described his belief that his job as a delivery driver did not involve illegality and he was very upset when he learned that such was not the case. She said that he was embarrassed and remorseful. She said that he understood the irreversible damage which his conduct had brought about to their relationship and to his family.

21. Before the court was a psychologist’s report which was prepared by way of an audio-visual link with the gaol. His Honour noted that this reduced the value of the report and took into account that the applicant had not given evidence in the sentence proceedings. When assessing the report, his Honour adopted what was said by Smart J in R v Qutami [2001] NSWCCA 353:

“While statements made by a prisoner to psychiatrists or psychologists are admissible in evidence, very considerable caution should be exercised in relying upon them where there is no evidence given by the prisoner. In many cases only very limited weight can be given to such statements.”

22. The psychologist recorded that the applicant had been brought up in a loving family and that there was nothing in his background that could explain why he would turn to such criminal misconduct. The only possible explanation was that his devotion to his family had to some extent influenced his decision to participate in this criminal enterprise for financial gain. His Honour reiterated that other than the agreed facts recording his joining a criminal group for commercial gain, there was an absence of evidence as to precisely what reward he received from his offending.

23. In relation to the applicant’s position in the criminal organisation, his Honour found:

“The combination of representation attributed to him suggests that his role in this case was of delivery driver at the behest of others in the enterprise. I am not prepared to find that that was how he was engaged in this case. The findings by the police in the storage units, their observations of him, his role that he played in the acquisition of the motor vehicles from Avis, by way of rentals at least, and his participation in the transaction all suggest that he was involved beyond the level of a mere delivery driver. I am satisfied beyond reasonable doubt that he should be seen in the light of at the higher level.

It was said to me that he demonstrated such lack of sophistication that I would find it more probably than not that he was something of a pawn in the hands of others involved in this enterprise; I paraphrase in that summary. I do not agree with that; the fact that he was willing to use his own licence and a mobile phone number to which he subscribed no doubt made it easier for the police to develop their case for presentation to the prosecuting authority. I would agree that there does seem to be a limited measure of sophistication in the way he went about his affairs in this enterprise but that is of limited significance in his favour in my view. There could be no finding other than he was well aware of what was going on and that he played instrumental roles in both enterprises with which he is charged. The suggestion that he was doing odd jobs for the associate, such as going to the bank, I would not accept as a fair description of his role in these enterprises.” (Sentence judgment 17.9-18.7)

24. His Honour did not accept the proposition that the applicant felt worried when he saw the cannabis plants at one of the residences and that when he raised the matter, he was told to keep it a secret. While his Honour accepted the applicant’s submission that one of his motivations for engaging in the offending was to provide assistance for his family, his Honour did not consider that it constituted a significant mitigating factor.

25. His Honour rejected the proposition that the Sentence Assessment Report was an objective document which strengthened the applicant’s subjective case. His Honour reached that conclusion because all that the Community Corrections Officer (CCO) could do was to regurgitate what was told to her by the applicant. His Honour found that there was no basis upon which he could assess the veracity or reliability objectively of what the applicant had told the CCO.

26. His Honour noted that the applicant had accepted that no penalty, other than a sentence of imprisonment, would be appropriate for these offences. His Honour found that all of the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act were engaged in this case. He found that general and specific deterrence had their role to play. His Honour found that the frequency with which persons from Asia engaged in such conduct in this country required that the court give appropriate weight to general deterrence so that such persons would be made aware that they will suffer appropriate punishment if they offend in this way.

27. His Honour found that the applicant’s prospects of rehabilitation were good but that he must be held accountable for his conduct. Such conduct must be denounced and recognition given to the harm done by persons who participate in this kind of crime.

28. His Honour was not prepared to make a finding as to the existence of any aggravating factors which were not already part of the offending. In particular, his Honour was not prepared to find that the motivation of financial gain should be taken into account as a separate matter aggravating the offence. His Honour was, however, prepared to accept that the applicant had demonstrated contrition and remorse by his early plea of guilty.

29. His Honour found special circumstances because this was the first time the applicant had been incarcerated, that he was Vietnamese and English was not his first language, and that he would be to some extent, isolated in the gaol community.

Ground 1 – The sentencing judge erred in his assessment of the objective seriousness of the offences

30. The applicant submitted that the sentencing judge erred in assessing the objective seriousness of the applicant’s conduct in the light of the role he fulfilled in the commission of the offences. The applicant submitted that his Honour’s characterisation of his role as being “significant” was an overstatement of his conduct as revealed by the facts and as could be properly determined by inference from the evidence. The applicant submitted that his role at its highest was to transport and deliver items to each house on two occasions, to assist in the storage of fertiliser, growing medium and stakes and on one occasion to have made a rental payment for the Parramatta grow house. The applicant submitted that in those circumstances it was simply not open to his Honour to make the findings which he did as to his role. The applicant submitted that to the extent that his Honour took into account any contribution by him to bypassing electricity, his Honour was in error.

31. The applicant submitted that his Honour appeared to conflate the nature and extent of the cultivation operation with his role within the syndicate. The applicant submitted that in doing so, his Honour committed the type of error identified in Kay v R [2019] NSWCCA 275 per Harrison J (Payne JA and N Adams J agreeing):

1. It is however a mistake in my view to elide or conflate the sophistication of the organisation that employed Ms Kay with her role working for the syndicate as a “runner”. Having regard to the agreed facts, I am unable to accept that Ms Kay played what his Honour described or characterised as “a very significant part”. ... Ms Kay was clearly at the very bottom of the hierarchy in every sense of the term. ...”

   32. The applicant submitted that a similar error had occurred in the present case in that there was insufficient evidence for a finding to be made beyond reasonable doubt that his role was anymore than that of a transporter and performer of odd jobs. The applicant submitted that on the evidence, he could be seen to be doing no more than assisting the operation from the periphery on a very limited number of occasions over a relatively limited period of time. He submitted that he was not fulfilling any integral function of actual cultivation of the prohibited plants, nor could he be seen as having any input into the workings of the operation. He submitted that he was not irreplaceable, nor could it be inferred that he stood to earn any great amount of money from his role. The applicant submitted that it could not be inferred that he was well aware of what was going on and played a significant role in both enterprises.

   33. The applicant submitted that it was not open to the sentencing judge to attribute liability to him on the basis of him being a member of a “joint criminal enterprise” engaged in by those involved in the substantive operation, i.e. the cultivation. The applicant submitted that such a finding implicitly carried with it a further finding that he (the applicant) must have been part of that enterprise to the extent of being involved in the substantive cultivation process. The applicant submitted that there was no evidence upon which such a scope of liability could be attributed to him. The applicant submitted that his plea to an offence of “knowingly take part” in the cultivation only carried with it an admission of being involved to such a degree so as to ground the definition of that offence. The applicant submitted that findings which went beyond the minimum level of culpability, admitting the elements of the offence, had to be inferred from the evidence and that in this case such evidence was not available.

   34. The applicant submitted that findings as to an involvement in the electricity bypass and in the joint criminal enterprise of those persons involved in the substantive cultivation operation were not open on the evidence. The applicant submitted that as a result of his Honour’s approach, there was a miscarriage of discretion so that the Court ought proceed to make its own consideration of the appropriate sentence.

Consideration

35. To the extent that his Honour relied upon the applicant being part of a joint criminal enterprise and therefore should accept some responsibility for the theft of electricity and for the sophistication and extent of the cultivation process, his Honour was in error. There was no evidence which connected the plaintiff to the theft of electricity and there was no evidence, either implicitly or expressly, of the applicant being part of a joint criminal enterprise which encompassed the whole cannabis cultivation exercise.

36. It is, however, not clear to what extent his Honour took those findings into account when assessing the objective seriousness of the applicant’s offending. His Honour’s finding was that in relation to both offences, the objective seriousness was somewhere between a point at midrange and halfway between midrange and the low end of what his Honour saw to be a limited scale. Such an assessment appears to be out of step with the anterior findings of responsibility for the theft of a substantial amount of electricity and being part of a joint criminal enterprise engaged in a substantial and sophisticated hydroponic cannabis production operation.

37. In any event, the factual findings impugned by the applicant were not open to his Honour and involved error on his part. Accordingly, Ground of Appeal 1 has been made out and in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 it will be necessary for the applicant to be resentenced.

Ground 2 – The sentencing judge erred in his approach to parity in relation to the first offence, particularly having regard to the co-offender being dealt with for an additional offence and their respective roles in the offence

38. The applicant noted that the role of the co-offender Le was not wholly described in the agreed facts tendered in his [the applicant’s] sentence proceedings. The agreed facts in the proceedings against Le revealed that he was seen to visit the Carlingford grow house on a number of occasions throughout August to November 2017 and that when arrested, he made admissions to having attended the residence every two-three days in order to water the plants and ensure the water storage containers were full. In exchange for doing so, he was paid $200-$300 per week and his family in Vietnam were paid $50-$100 per week.

39. The applicant noted that Le was sentenced for his role in his offence by Judge O’Brien on 4 May 2018 and was found to have participated in the operation in line with his admissions after having been recruited by others to whom he was “vulnerable”. The objective seriousness of his offending conduct was found to fall “well below midrange”. His culpability also extended to being liable for an offence of Use Electricity Without Authority (contrary to s 64(1) Electricity Supply Act 1995 (NSW)). This offence carried a maximum penalty of 5 years imprisonment which was dealt with on a Form 1. Judge O’Brien found that were it not for his plea of guilty, he would have sentenced him to a head sentence of 2 years. After a 25 per cent utilitarian discount was applied, the sentence which was imposed was imprisonment for 18 months with a non-parole period of 12 months.

40. The applicant further noted that when Judge Bennett SC addressed the issue of parity in his case he assessed his [the applicant’s] role as “more extensive” and noted the evidence of contrition and remorse shown by Le which he did not find present (to the same degree) in the applicant’s case. The indicative sentence imposed on the applicant for the Carlingford offence was 2 years 3 months which was 9 months higher than that of Le for the same offence. The applicant submitted that this was so even though there was no evidence of him actually entering the premises or tending to the crops, nor was there any extra charge dealt with via a Form 1. The applicant submitted that in those circumstances, his role could not properly be described as “more extensive” than that of Le, nor could his objective culpability be seen as greater than Le’s when one considered the additional liability provided for by the Form 1 offence.

41. The applicant submitted that his Honour erred in his approach to parity by not appropriately providing for the differences in criminality on sentence. He submitted that the nature and extent of his involvement in the Carlingford offence was much less than that of Le, as was his criminal conduct overall. He submitted that the indicative term imposed on him was 9 months higher than that imposed on Le and that this constituted a difference which was not properly justifiable by any difference in subjective circumstances. The applicant submitted that his sentence by comparison ought to have been less than Le’s and that this would have resulted in a lesser aggregate sentence.

42. In support of those submissions, the applicant relied upon the following cases: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 where the plurality (French CJ, Crennan and Kiefel JJ) said:

1. ... Consistency in the punishment of offences against the criminal law is 'a reflection of the notion of equal justice' and is a fundamental element in any rational and fair system of criminal justice. It finds expression in the 'parity principle' which requires that like offenders should be treated in a like manner. As with the norm of 'equal justice', which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances ...

2. Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may “reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender.” The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen:

   “the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.”

The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.”

43. In Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 Gaudron, Gummow and Hayne JJ said:

1. ... Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.”

   44. In R v Barri [2004] NSWCCA 221 Dowd J (with whom Beazley JA and Greg James J agreed) said:

2. ... A matter to be taken into account is the role played by each offender in the commission of the offence, and a different role would be an appropriate basis for some discrimination between the sentences. This matter was also considered in R v Canino [2002] NSWCCA 76.”

   45. In Gill v R [2010] NSWCCA 236 McColl JA (with whom RS Hulme and Latham JJ agreed) said:

“57    Application of the parity principle takes into account that different sentences may reflect different degrees of culpability or the co-offenders’ different circumstances and, that if that is done appropriately by the sentencing judge, the notion of equal justice is not violated: Postiglione v The Queen (at 301) per Dawson and Gaudron JJ.”

46. The applicant submitted that the instant case was one where the difference in culpability between him and Le did not justify a marked difference in sentences and that his [the applicant’s] overall criminality was so much less than that of Le as to give rise to a justifiable sense of grievance on his part.

Consideration

47. It needs to be kept in mind that the appeal in this matter lies against the aggregate sentence not the indicative sentences. It can be accepted, however, that a useful start point is a comparison between the sentence indicated by his Honour in respect of Sequence 5 and the sentence imposed on Le, albeit taking into account the theft of electricity on a Form 1.

48. A recent statement of the principles applicable to parity can be found in the judgment of R A Hulme J (with whom Beazley P and Button J agreed) in Fenech v R [2018] NSWCCA 160 where his Honour said:

1. A succinct statement of the parity principle may be drawn from the joint judgment of French CJ, Crennan and Kiefel JJ in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28]:

   “Consistency in the punishment of offences against the criminal law is ‘a reflection of the notion of equal justice’ and ‘is a fundamental element in any rational and fair system of criminal justice’ [Lowe v The Queen (1984) 154 CLR 606; [1992] HCA 29 at 610 per Mason J]. It finds expression in the ‘parity principle’ which requires that like offenders should be treated in a like manner [Leeth v The Commonwealth (1992) 174 CLR 455; [1992] HCA 29 at 470 per Mason CJ, Dawson and McHugh JJ]. As with the norm of ‘equal justice’, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances [Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 301 per Dawson and Gaudron JJ].

2. There has been some discussion in this Court in recent times about whether the epithets, “gross, marked or glaring” should be used in the application of the parity principle; see for example Cameron v R [2017] NSWCCA 229 at [86]-[90] (Hamill J); and Miles v R [2017] NSWCCA 266 at [9] (Leeming JA), [36]-[40] (Rothman J), and [67] (Hamill J). The better course in my respectful view is to confine discussion of the principle to the terms used in judgments of the High Court. There, the expressions, “marked disparity” or “marked and unjustified disparity” have been used in the majority judgment in Green v The Queen; Quinn v The Queen; see similarly Lowe v The Queen (1984) 154 CLR 606; [1992] HCA 29 per Gibbs CJ at 610, Mason J at 611, and Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 per Dawson and Gaudron JJ at 301.

3. In Lowe v The Queen, Dawson J also used the expression, “manifestly excessive” in the following context (at 623-624):

   “The view has been expressed in England that a court should not interfere unless the disparity is gross or glaring and the circumstances are ‘most exceptional’; see R v Stroud (1977) 65 Cr App R 150 at 153-154; R v Potter [1977] Crim LR 112 at 113. The decisions in this county do not appear to be quite as restrictive as this but on any view the interference with a court of appeal is not warranted unless the disparity is such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done. The difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice: see Pecora v The Queen [1980] VR 499; R v Tisalandis [1982] 2 NSWLR 430.”

4. It is well known that the description “manifestly excessive” signifies something that is “unreasonable or plainly unjust”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25].

5. In Postiglione v The Queen (at 302), Dawson and Gaudron JJ also spoke in terms of there being “due proportion” between sentences when regard is had to the “different circumstances of the co-offenders in question and their different degrees of criminality”.”

   49. Apart from age (the applicant was 30 at the time of sentence and Le was 24) there is little difference in their subjective case. The major difference is in the position occupied by each of them in the criminal enterprise. Le’s involvement was that of a crop sitter who attended only the Carlingford location on a part time basis, i.e. every two or three days, for which he received a modest payment. It is not surprising that Judge O’Brien characterised his position in the offending as being well below the midrange. His duties were modest in the extreme, i.e. watering the plants and ensuring that the water storage containers were full.

   50. By way of contrast, the position of the applicant was, as Judge Bennett SC found, clearly above that of a crop sitter. A proper analysis of the agreed facts fully supports that conclusion by his Honour.

   51. Unlike Le, the applicant had responsibilities which extended not only to the Carlingford property, but also to the Parramatta property. In October 2017, he assisted in the hiring of a Hiace van which was used to transport heavy items to the Parramatta property where the applicant assisted in the unloading. Again on 19 November 2017, the applicant participated in the transportation of objects out of a Hiace van into the Parramatta premises. Whatever he was doing in those premises involved the wearing of gloves, which were found on those premises and which had the applicant’s DNA inside. There were containers of fertiliser and bags of a growing medium in the Parramatta premises which were identical to similar commodities stored in storage units in Padstow, which had been rented by the applicant. It was also apparent that the applicant had had dealings with the real estate agents responsible for the letting of the Parramatta premises and that these dealings had included on at least one occasion the payment of a substantial amount of rent, i.e. $2,350.

   52. From August 2017, there was an association between the applicant and the Jenkins Road premises where a motor vehicle registered to him was parked. In November 2017, the applicant hired a Hiace van and as with Parramatta, the applicant was engaged in some unloading or loading exercise in relation to the movement of heavy objects either to or from the Jenkins Road premises. The applicant appeared to have some relationship with Le in that there was telephone contact between them in December 2017. It was common ground that these activities were carried out for financial gain, although the precise amount could not be established.

   53. When one has regard to those matters, it is overwhelmingly clear that the position occupied by the applicant in the criminal group was considerably higher than that of Le. The applicant was trusted to make payments as he did in respect of motor vehicles, storage units and the payment of rent for the Parramatta property. Although the precise details of his activities are not known, they encompassed two properties not just one. Given the sophisticated hydroponic set up at each of the premises, it would have been obvious to the applicant that significant criminal activity was taking place at each of the premises. When those matters are taken into account, it is clear that the roles of the applicant and Le were very different and that that of the applicant was more important. It also follows that when his Honour was setting out the indicative sentence for the offending at the Jenkins Road premises, he was also obliged to take into account in the formulation of that sentence that this was not the only criminal activity which involved the applicant but that he was also at the same time engaged in criminal activity at the Parramatta premises.

   54. A comparison of the positions of Le and the applicant make it clear that the activities of the applicant were more significant and important. This is sufficient to distinguish his position from that of Le and to account for his indicative sentence in respect of the Jenkins Road premises being greater than that of Le.

   55. This ground of appeal has not been made out.

Ground 3 – The sentence was manifestly excessive/Re-sentence

56. Given the applicant’s success in relation to Ground 1, there is no useful purpose to be served in proceeding with Ground 3. However, the submissions in relation to Ground 3 can properly be taken into account as going to resentence and in particular, whether a lesser sentence is warranted in law.

57. In submissions the applicant accepted that in the case of an aggregate sentence, the principal focus in determining whether it was excessive is whether the sentence reflects the total criminality of the offending. The applicant accepted that indicative sentences were not themselves amenable to appeal. The applicant further accepted that while indicative sentences might be a guide to whether error is established in an aggregate sentence, the fact that indicative sentences are excessive did not necessarily mean the aggregate sentence is excessive.

58. The applicant submitted that in this case the combination of the length of the indicative terms and the manner in which they were notionally accumulated had resulted in a sentence which was manifestly excessive when one had regard to the total criminality of his conduct.

59. The applicant submitted that regard could be had to statistics extracted from the Judicial Information Research System compiled by the Judicial Commission of NSW (Sentencing Statistics) as a yardstick against which a particular sentence could be measured in order to compare lengths of sentences imposed. The applicant accepted, however, that the usefulness of such statistics was limited in that they said nothing about the details of the offences or of the circumstances of the offenders reflected in them. The applicant accepted that on their own such statistics provided little guidance for the purpose of sentencing. The applicant did, however, submit that despite these limitations, statistics could nevertheless assist in identifying a pattern of sentencing that might be indicative of an available range of sentences in a broad sense.

60. By way of illustration, the applicant referred to 126 sentences imposed between January 2008 and September 2018 relating to offences involving a large commercial quantity of a prohibited substance. 86.5 per cent of offenders received fulltime custodial sentences of which 85 per cent received a sentence of between 2 and 4½ years and 25 per cent received sentences of 4½ years or more. The applicant submitted that by reference to those statistics, the sentences imposed in this matter might be said to be high in that sentences of 4½ years or more were in the top 25 per cent.

61. The applicant submitted that in the case of an aggregate sentence, although the focus in determining a ground alleging manifest excess was whether the sentence reflected the total criminality, one still had to take into account the principles of accumulation, concurrency and totality. The applicant submitted that the requirements of Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 also remained applicable in that the criminality in each offence needed to be assessed separately and the principle of totality needed to be applied.

62. The applicant submitted that the potential for accumulation of the notional sentences could be examined to determine whether the aggregate sentence represented a sound exercise of sentencing discretion. In making that submission, the applicant accepted that the absence of any requirement to specify the beginning and end dates for each notional sentence might make it more difficult to demonstrate a relevant error in applying the totality principle.

63. While accepting that subject to the application of established principle, questions of accumulation were discretionary, the applicant submitted that even at the first stage of considering the appropriate penalty for each individual sentence, care had to be taken to ensure that an offender was not subject to double punishment for some element common to two or more offences and that this was not overcome by making sentences concurrent.

64. Applying those principles to the facts of this case, the applicant submitted that an aggregate sentence of 5 years and 6 months with a non-parole period of 3 years and 6 months, having regard to the indicative sentences, meant that the applicant’s sentences were accumulated by either 3 years and 3 months (on top of the commercial quantity sentence) or 1 year (on top of the large commercial quantity sentence). The applicant submitted that the relevance of that calculation was the need to have regard to the fact that there was some overlap between the facts and circumstances of each offence with the one continuing episode of offending conduct spanning four months from August to December 2017 and the other (Parramatta) spanning approximately two months. In making that submission, the applicant accepted that the sentence for the Parramatta offence also needed to recognise the additional effect of the Form 1 offence.

65. The applicant submitted that the combination of the length of the indicative sentences and the extent of their (notional) accumulation resulted in an aggregate sentence that was excessive having regard to the total criminality of the applicant’s conduct, i.e. that the aggregate sentence reflected an assessment of total criminality that was greater than that which the facts justified.

Consideration

66. As a result of the applicant’s success in Ground 1, the assessment of objective criminality has to be made without there being any reference to the theft of electricity and the applicant being a member of a joint criminal enterprise in the sense that he was part of a senior group responsible for the cultivation of cannabis at the two locations. In carrying out that exercise, however, it is clear that the objective seriousness of the applicant’s offending remains below midrange but certainly well above the bottom of the range. This is apparent when one has regard to the matters which separate the criminality of the applicant from that of Le (at [51]-[52] hereof).

67. As the analysis of the actions of the applicant set out in Ground 2 makes clear, his actions in relation to both locations where cannabis was grown was significant (whether or not one regards it as a single criminal activity carried on at two locations or as two separate episodes of criminal activity). He was hiring vehicles, transporting heavy objects/equipment, performing work at or about both premises, paying substantial sums of money by way of rent in respect of the Parramatta premises and paying for and hiring storage facilities. Even though it is not known precisely what activities the applicant was engaged in, it is well open to find beyond reasonable doubt that these activities were directed at advancing the success of the criminal activity at both locations, i.e. the cultivation and sale of the cannabis.

68. For example, even after the police shut down the two cannabis operations at Parramatta and Carlingford, the applicant was still engaged in some level of criminal activity which involved the leasing of the two storage units at Padstow in May 2018. While the applicant was not charged with any offence directly related to the use of those storage facilities, the continuation of some activity beyond December 2017 which involved the storage of fertiliser and similar substances provides some insight into the applicant’s role in the criminal activity.

69. Far from being a mere transporter, the agreed facts show a much wider range of activity on the part of the applicant, which included the expenditure of money and inferentially allow a finding that the persons higher up in the criminal hierarchy engaged in the cannabis production reposed some trust in the applicant.

70. Accordingly, I am satisfied beyond reasonable doubt that while the objective criminality of the applicant’s offending is below midrange, it is substantially above that of Le and was one of some importance to the cannabis cultivation activity.

71. It follows that on resentence, I have reached a conclusion as to the objective seriousness of the offending similar to, if not slightly above, that made by the sentencing judge. Implicit in that finding is a rejection of the applicant’s submission that the proper assessment of the objective seriousness of the offending is at the bottom of the range and less than that of Le. It is that finding which was fundamental to the applicant’s challenge to the sentencing judge’s finding as to the objective seriousness of the offending. Once that is rejected, most of the challenge to the aggregate sentence falls away.

72. Having determined that the objective seriousness of the offending was substantial, it is then simply necessary to apply sentencing principles having regard to those findings of the sentencing judge which were not challenged in this appeal.

73. The maximum penalties for each offence were substantial, as was the standard non-parole period, for the large commercial quantity offence. When the indicative sentences and the aggregate sentence are looked at against those guideposts and having regard to my finding as to the objective seriousness of the offending, they are well within an appropriate sentencing range. This is particularly so when one has regard to the Form 1 offence to be taken into account with the large commercial quantity offence.

74. When regard is had to the principles relevant to sentencing for offences of this kind, questions of denunciation and the application of general and specific deterrence are important. This is particularly so when one has regard to the sophistication of the cannabis growing enterprise carried out at each location.

75. There is nothing particularly persuasive about the applicant’s subjective case. Apart from the fact that he had had no previous convictions, there were no other compelling features. The motivation for the offending was financial gain. In that regard, it matters not that part of that motivation may have been to assist his family in Vietnam. There was no psychological or mental element which needed to be taken into account. The fact that the applicant was not fluent in English was already taken into account by the sentencing judge when finding special circumstances. The suggestion in the letter from the applicant’s partner to the effect that he did not realise that he was engaged in illegal conduct until it was too late is, with respect, fatuous. The indicia of illegal conduct were overwhelmingly obvious at each location. There is nothing in the statistics relied upon by the applicant which indicate that the sentence imposed by his Honour was outside the available range of sentences.

76. When one has regard to the principle of totality, the indicative sentences are well within his Honour’s discretion and are consistent with the available guideposts. When regard is had to the aggregate sentence, it is clear that there was a significant degree of notional concurrency having regard to the indicative sentences.

66. Accordingly, when one takes into account the objective seriousness of the offending, the principles of sentencing and the relative weakness of the applicant’s subjective case, I am not persuaded that on resentencing any lesser sentence is warranted in law.

67. Accordingly, the orders which I propose are:

1. Leave to appeal is granted.

2. The appeal is dismissed.

79. ROTHMAN J: I agree with the orders proposed by Hoeben CJ at CL. As I explained in Downes v R [2020] NSWCCA 167, there are circumstances where the norm of equal justice is breached and the error is other than manifest.

80. An error that gives rise to disparity, or an unjustified difference, may only become obvious or clear after detailed analysis of the comparable, relevant circumstances of the two offenders; or the error may be identifiable after proper analysis.

81. However, in the current situation, the alleged disparity is not manifest and would need to be. There is no justifiable sense of grievance. The parity principle has been applied and the difference between the two co-offenders is a result that rationally reflects the relevant difference in circumstances of offending and the subjective circumstances of each offender.

82. I otherwise agree with the reasons for judgment of Hoeben CJ at CL. In particular, even though error has occurred in relation to Ground 1, I consider, in light of the objective circumstances of the offence committed and the subjective circumstances of the offender that, having regard to the guideposts of the maximum sentence for each offence and the standard non-parole period for Sequence 6 (large commercial quantity), the aggregate sentence is lenient and no lesser sentence is warranted in law.

83. FAGAN J: I agree with the Chief Judge.

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Decision last updated: 23 July 2020