Quan Quan Le v The Queen
[2018] VSCA 309
•21 November 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0174
| QUAN QUAN LE | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and ASHLEY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 November 2018 |
| DATE OF JUDGMENT: | 21 November 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 309 |
| JUDGMENT APPEALED FROM: | DPP v Nguyen & Ors [2018] VCC 985 |
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CRIMINAL LAW — Sentence — Appeal — Cultivating cannabis — Role as ‘crop-sitter’ —Sentence of two years’ imprisonment with non-parole period of 18 months — Parity with co-offenders — Whether sentence manifestly excessive — Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C K Wareham | Valos Black & Associates |
| For the Respondent | Ms S M K Borg | Mr John Cain, Solicitor for Public Prosecutions |
PRIEST JA:
Introduction
Quan Quan Le, the applicant, pleaded guilty before a judge in the County Court on 25 June 2018 to an indictment charging him with cultivating cannabis at Curlewis on 28 July 2017 (charge 3).[1] Co-offenders Dung Van Ngo and Hung Hong Nguyen pleaded guilty respectively to cultivating cannabis in not less than a commercial quantity[2] (charge 1) and cultivating cannabis (charge 2) at Queenscliff.
[1]Drugs, Poisons and Controlled Substances Act 1981, s 72B. The maximum penalty is 15 years’ imprisonment.
[2]Drugs, Poisons and Controlled Substances Act 1981, s 72A. The maximum penalty is 25 years’ imprisonment.
On 28 June 2018, the judge sentenced the applicant to be imprisoned for two years, and fixed a non-parole period of 18 months. The judge sentenced Ngo to be imprisoned for two years and six months, with a non-parole period of two years; and sentenced Nguyen to be imprisoned for two years, with a non-parole period of 18 months.
The applicant seeks leave to appeal against his sentence on two grounds as follows:
1. In all the circumstances;
(a) the sentence imposed on the applicant for charge 3 on indictment C1711394 (cultivation of a narcotic plant); and
(b) the sentence imposed on his co-offenders Dung Van NGO (on a charge of cultivation of a narcotic plant in a commercial quantity – charge 1) and Hung Hong NGUYEN (on a charge of cultivation of a narcotic plant – charge 2);
gave rise to a justifiable sense of grievance.
2. When regard is had to the following circumstances:
·the applicant’s early plea of guilty and the stage at which it was entered;
·the applicant’s lack of prior convictions;
·the personal circumstances of the applicant; and
·the applicant’s role in the offending;
the sentence of [two years’] imprisonment with a non-parole period of 18 months’ imprisonment are manifestly excessive.
In my opinion, leave to appeal should be refused. My reasons follow.
The offending
Presently, the applicant, Ngo and Nguyen are all aged 34 years.[3]
[3]The applicant’s date of birth is 15 September 1984; Ngo’s date of birth is 10 October 1984; and Nguyen’s date of birth is 12 March 1984.
Their offending was described in the Summary of Prosecution Opening as follows:
ARREST: NGUYEN and NGO
1. On the 27th of July 2017 at approximately 5.30 pm, investigators from the Geelong Divisional Response Unit were conducting reconnaissance at 65 Stokes Street, Queenscliff, in relation to an ongoing investigation into the suspected cultivation of cannabis at this address.
2. Investigators observed a black Alpha Romeo bearing Victorian registration ZBC866 at the address. This vehicle is registered to NGUYEN.
3. At approximately 6.04 pm, Investigators observed vehicle ZBC866 leave the address and drive west towards Geelong on the Bellarine Highway.
4. Investigators intercepted this vehicle a short time later at the intersection of Christies Road and Bellarine Highway, Leopold. NGUYEN and NGO were located inside the vehicle and taken into custody. NGO was the driver of this vehicle and NGUYEN was seated in the front passenger seat of this vehicle.
5. A search of the vehicle ZBC866, NGUYEN and NGO was conducted, in which the following items were located:
(a) 1 x white Apple iPhone in the pocket of NGUYEN
(b) 1 x white Apple iPhone in the pocket of NGO
(c) 1 x set of keys with a blue tag in the pocket of NGO
(d) 1 x white Samsung Galaxy phone and 1 x black Apple iPhone on the front passenger seat of the vehicle where NGUYEN was seated
(e) 4 x sets of keys located in the door and centre console of the vehicle
(f) wallet containing personal cards in NGUYEN and NGO's names
6. The white Samsung mobile phone that was located was identified as having the contact number 0401981289. This mobile phone was located in the front passenger seat of the vehicle, where NGUYEN was seated. Enquiries into this phone showed that this contact number 0401981289 was the contact number provided to Powercor for the Power accounts for both 65 Stokes Street, Queenscliff and 28 You Yangs Avenue, Curlewis.
7. This contact number 0401981289 was also provided as the primary contact number on the lease for 65 Stokes Street Queenscliff and 28 You Yangs Avenue, Curlewis.
65 STOKES STREET, QUEENSCLIFF (CHARGE 1 & 2)
8. On the 27th of July 2017 at 7.07 pm, NGUYEN and NGO were conveyed to 65 Stokes St, Queenscliff, where Investigators executed a search warrant issued under the Drugs, Poisons and Controlled Substances Act 1981. The set of keys with a blue tag seized from NGO’s pocket were used by investigators to gain access to this address. Two separate keys on this set of keys fitted the locks on both the front and rear door of 65 Stokes Street, Queenscliff.
9. After gaining access to 65 Stokes Street, Queenscliff, investigators located a hydroponic setup throughout the house, which was being used to cultivate cannabis. Investigators identified that a power bypass was installed above the kitchen cupboards. Powercor was notified to attend the following day, and a crime scene guard was established overnight.
10. On the 28th of July 2017 at 8.15 am, investigators re-attended at the address with Powercor. Power was cut to the address, making it safe. A full search of 65 Stokes Street was conducted and four rear rooms had been set up as hydroponic growing rooms, each containing cannabis plants growing under lights and shrouds. The following items were located, seized and weighed:
(a) 12 x large cannabis plants located in room 1, weighing 13.46 kilograms
(b) 14 x large cannabis plants located in room 2, weighing 16.48 kilograms
(c) 40 x large cannabis plants located in room 3, weighing 12.06 kilograms
(d) 52 x small cannabis seedlings located in room 3A, the walk in robe of room 3, weighing 117.9 grams
(e) 12 x cannabis plants located in room 4, weighing 10.90 kilograms
(f) a total of 47 shrouds, 48 globes and 54 transformers were seized
11. There were a total of 130 cannabis plants located at 65 Stokes Street, Queenscliff, with a total weight of 53.018 kilograms.
12. Investigators also located assorted chemicals, plant nutrients and irrigation hosing. A number of clothing and personal items, gloves, straws and drink bottles were also seized for DNA analysis with the following results:
(a) NGO’s DNA was found on a toothbrush
(b) NGUYEN is a contributor of a mixed DNA profile (two contributors) found inside one glove
28 YOU YANGS AVENUE, CURLEWIS (CHARGE 3)
13. On the 27th of July 2017 at 8.00 pm NGUYEN and NGO were also conveyed to 28 You Yangs Avenue, Curlewis, where investigators executed a search warrant under the Drugs, Poisons and Controlled Substances Act 1981. A set of keys seized from NGUYEN’s vehicle was used by investigators to gain access to this address.
14. After gaining access to 28 You Yangs Avenue, Curlewis, investigators located a hydroponic setup throughout the house, which was being used to cultivate cannabis. Investigators identified that a power bypass was installed behind a couch in the bottom floor front room. Powercor was notified to attend the following day, and a crime scene guard was established overnight.
15. On the 28th of July 2017 at 11.00 am, investigators re-attended the address with Powercor. Power was cut to the address, making it safe. A full search of this address was conducted and three rooms on the second floor of the property had been set up as hydroponic growing rooms, each containing cannabis plants growing under lights and shrouds. A fourth bedroom was set up containing lights and shrouds however no cannabis plants were currently growing in this room. The following items were located and seized:
(a) 21 large cannabis plants in room 1, weighing 17.12 kilograms
(b)42 small cannabis plants in room 2, weighing 2.70 kilograms
(c) 21 large cannabis plants in room 3, weighing 17.16 kilograms
(d) a total of 47 shrouds, 24 globes and 52 transformers were seized.
16. There were a total of 84 cannabis plants located at 28 You Yangs Ave, Curlewis, with a total weight of 36.98 kilograms.
17. Police also located assorted chemicals, plant nutrients and irrigation hosing as well as Bunnings receipts and paperwork consistent with the purchase of these items.
18. A number of clothing and personal items, water bottles and kitchen utensils were seized for DNA analysis. LE’s DNA was found on two Mount Franklin water bottles and a pair of Bonds underwear.
ARREST: LE
19. At approximately 12.20 am on the 28th of July 2017, the crime scene guards at 28 You Yangs Avenue, Curlewis, observed LE driving a red Mitsubishi sedan, Victorian registration WFV715, north on You Yangs Avenue, Curlewis. LE observed police at 28 You Yangs Avenue and parked his vehicle near the intersection of May Street and You Yangs Avenue, approximately 30 metres from the address. LE walked away from the address on foot, and was located a short time later by police hiding in the rear yard of a house on the corner of May Street and Pierview Drive, Curlewis.
20. LE was subsequently taken into custody and searched, at which time police have located a set of house keys to the address of 28 You Yangs Avenue, Curlewis.
21. A search of LE’s vehicle was conducted. In the boot of LE’s vehicle, investigators located black heavy duty tubs, retractable vents, and plant nutrients that were the same as the hydroponic items used to cultivate cannabis, located inside both 28 You Yangs Avenue, Curlewis and 65 Stokes St, Queenscliff.
22. Enquiries made by investigators show that a vehicle matching the description of the vehicle registered to LE, had been observed coming and going from 28 You Yangs Avenue for approximately a week prior to the execution of the Drugs, Poisons and Controlled Substances Act 1981 search warrant and LE’s arrest.
INTERVIEWS:
23. NGO was interviewed with the assistance of a telephone interpreter and made admissions to attending the Queenscliff property a few times to visit friends. He also admitted to having slept overnight at the property but said he was unaware of the hydroponic setup and was not involved in the cultivation of cannabis. He also denied ever attending Curlewis and could not explain how those house keys came to be in the car he was driving.
24. NGUYEN was interviewed with the assistance of a telephone interpreter and made admissions to regularly attending Queenscliff to look after the gardens for friends. He stated that he had been inside the house, mainly in the living area and kitchen, and was unaware of the hydroponic setup and was not involved in the cultivation of cannabis. He denied ever attending Curlewis and could not explain how the house keys came to be in his car. He also denied having any knowledge of a cannabis crop at that location.
25. LE was interviewed with the assistance of a telephone interpreter and made no admissions stating he had never been to the area and got lost driving around. He declined to answer further questions put to him by investigators.
Ground 1 — Parity
As will have been noticed, the applicant fell to be sentenced with respect to the 84 cannabis plants located at 28 You Yangs Ave, Curlewis, which had a total weight of 36.98 kilograms, whereas Ngo and Nguyen were sentenced with respect to the 130 cannabis plants located at 65 Stokes Street, Queenscliff, with a total weight of 53.018 kilograms. It should also be noted that the cultivation of a commercial quantity of cannabis alleged against Ngo embraced the period of a month (between 27 June and 27 July 2017); whereas in the case of both Nguyen and the applicant, the relevant cultivation was limited to a single day (27 July and 28 July 2017 respectively).
Under cover of the first ground, counsel for the applicant submitted that, since the applicant was to be sentenced in relation to 46 fewer cannabis plants — weighing 16.038 fewer kilograms — than Ngo and Nguyen; and further given that Ngo was to be sentenced for the more serious offence of cultivation of a narcotic plant in not less than a commercial quantity; there should have been disparity between the applicant’s sentence and Nguyen’s, and greater disparity between the applicant’s sentence and Ngo’s. It was contended that the fact that the applicant’s sentence was the same as Nguyen’s, and only six months less than Ngo’s, engendered a justifiable sense of grievance, such that appellate intervention was warranted.[4]
[4]Counsel cited Postiglione v The Queen (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ); Lowe v The Queen (1984) 157 CLR 606, 613-4 (Mason J); Hilder v The Queen [2011] VSCA 192; and Mitchell v The Queen [2018] VSCA 158, [46]–[48].
As I have indicated, the applicant’s counsel limited his submissions under ground 1 to the differences in the relevant offending. That is because — as counsel acknowledged in oral argument — there is little, if anything, in the personal circumstances of the applicant and his co-offenders that would justify their different treatment. Each is of similar age, pleaded guilty and was remorseful. All three are without prior convictions, and all three were found to have good prospects of rehabilitation. Each had come to Australia on a tourist visa so as to find work and send money home to family. All three had wives and children in Vietnam, without financial support, which the judge found is likely to make the service of any prison sentence more burdensome than would otherwise be the case.
In my opinion, however, despite the submissions of the applicant’s counsel to the contrary, there is little to discriminate between the three so far as their offending is concerned. As counsel for the respondent submitted in oral argument, any differences between the cultivation undertaken at Curlewis and that undertaken at Queenscliff were ‘superficial’, each cultivation being attended by a similar level of ‘commerciality’. Perhaps more importantly, the applicant and his co-offenders were each said simply to be a ‘crop-sitter’, having only a minor role in the relevant cultivation. In my view, the relatively small difference in the number, and in the weight, of the cannabis plants located at the two ‘crop-houses’,[5] justified no greater differentiation between the sentence imposed on the applicant and that imposed on Nguyen. The different sentence imposed on Ngo is justified by his plea to a charge carrying a greater maximum penalty (although, realistically viewed, his offending might be thought to be not so different to that of the applicant and Nguyen).
[5]I also note that although the Queenscliff cultivation involved 130 plants, 52 of those were seedlings. There were thus 78 mature plants at Queenscliff, and a greater number — 84 plants — at Curlewis.
In Ryan, the Court (Weinberg, Whelan and Priest JJA) observed:[6]
As to parity, an appellate court will intervene where there exists such a manifest discrepancy between the sentences imposed on co-offenders as to engender a justifiable sense of grievance 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, it does not involve judgment about the feelings of the person complaining of disparity. Because sentencing is a discretionary exercise the authorities emphasise that the disparity must be ‘marked’ or ‘manifest’. No justifiable grievance arises in circumstances where differences between co-offenders mean that it was reasonably open to the sentencing judge to differentiate in the way in which he or she did.
[6]Ryan v The Queen [2016] VSCA 255, [42].
When proper regard is paid to the roles and personal circumstances of the applicant and the co-offenders, the failure to differentiate between the applicant and Nguyen was well justified, as was the modest differentiation between the applicant’s and Ngo’s sentence.
Ground 1 cannot be sustained.
Ground 2 — Manifest excess
The complaint that the sentence is manifestly excessive is also unsustainable.
In support of ground 2, counsel for the applicant relied on the fact that the applicant has no prior criminal history and is otherwise of good character. Further, as the judge accepted, the applicant’s plea of guilty was made at an early stage, and both had utilitarian benefit and demonstrated remorse. It was submitted that the applicant came to Australia lawfully on a tourist visa in 2015, and shortly thereafter made an application for refugee status. His financial position was, it was submitted, ‘precarious’ as a consequence of not being entitled to social security benefits. The applicant has no family or other supports in Australia, which will make imprisonment more burdensome on him. He will be deported at the completion of his sentence. Finally, counsel submitted that the applicant’s role in the offending was relatively minor.
It having been accepted that the applicant’s was the relatively minor role of ‘crop-sitter’, I regard the sentence of two years’ imprisonment imposed upon him as stern.[7] Additionally, I consider the non-parole period imposed — equating to 75 per cent of the head sentence — is also stern. Intervention is not warranted, however, simply because the members of this Court would not have imposed the same sentence as the primary judge. It is only if the sentence first imposed is altogether outside the range of those open in the sound exercise of the sentencing discretion that intervention is justified.
[7]For example, compare Muaremov v The Queen [2018] VSCA 298 (Maxwell P and Kaye JA).
Notwithstanding the able arguments of the applicant’s counsel, and my own impression that the sentence imposed on the applicant is stern, in the end I am not persuaded that the sentence imposed is wholly outside the available range. Hence, the contention that the sentence is manifestly excessive cannot be upheld.
Conclusion
The application for leave to appeal against sentence must be refused.
ASHLEY JA:
I agree with Priest JA that leave to appeal against sentence must be refused. In my view, there was no merit to ground one. With respect to ground two, it is enough to conclude, as I do, that it was not reasonably arguable that the sentence imposed was outside the boundary of the permissible exercise of the sentencing discretion.
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