R v Quan

[2006] NSWCCA 382

CITATION:	R v Quan [2006] NSWCCA 382
JUDGMENT DATE:	27 November 2006
JUDGMENT OF:	Sully J at 9; Hidden J at 1; Latham J at 12
EX TEMPORE JUDGMENT DATE:	11/27/2006
DECISION:	Leave to appeal granted, appeal allowed, sentence in District Court quashed. Applicant sentenced to imprisonment for two years and two months, to date from 12 August 2005, with a non-parole period expiring on 27 November 2006. Court directs the applicant's release not later than 4pm that day.
CATCHWORDS:	CRIMINAL LAW: Application for leave to appeal against sentence - cultivating commercial quantity of cannibas - whether sentence manifestly excessive.
CASES CITED:	R v Godden [2005] NSWCCA 160 Lowe v The Queen (1984) 154 CLR 606
PARTIES:	Sau Khoan Quan (applicant) Regina (Repsondent)
FILE NUMBER(S):	CCA 2006 /1932
COUNSEL:	(Applicant) - A Bellanto QC (Crown) - P Miller
SOLICITORS:	(Applicant) - T Pham, AKN and Associates (Crown) - S Kavanagh, Solicitor for Public Prosecutions
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DCZ1551
LOWER COURT JUDICIAL OFFICER:	Ainslie-Wallace DCJ
LOWER COURT DATE OF DECISION:	26 May 2006

2006 / 1932

SULLY J
HIDDEN J
LATHAM J

27 NOVEMBER 2006

Sau Khoan QUAN v Regina

JUDGMENT

1 HIDDEN J: The applicant, Sau Khoan Quan, pleaded guilty in the District Court to a charge of cultivating a commercial quantity of a prohibited plant, being cannabis. He also asked that three further offences be taken into account on a Form 1. He was sentenced to imprisonment for three years and two months, comprising a non-parole period of two years and a balance of term of one year and two months, to date from 12 August 2005. Although he was dealt with in May 2006, the sentence was backdated to allow for a period during which he had been held in custody prior to being released on bail. He seeks leave to appeal against that sentence.

2 The facts were succinctly summarised in the remarks on sentence of the learned sentencing judge as follows:

On 22 February 2005 police executed a search warrant at the offender's premises. A hydroponic system had been installed in three bedrooms in the house and in the garage to the property. Police found 284 plants in various stages of maturity. The system allowed for electric light, heat and ventilation in each room in which the plants were being grown.

The offender made admissions to the police about growing the plants. Of the plants, 100 were one metre tall and 184 were more than one metre tall.

The matters on the Form 1 are: unauthorised diversion and use of electricity; this relates to tampering with the electricity supply to divert it to the growing operation. Goods in custody; an amount of $2405 was found in the house. Possess prohibited drug; this relates to a bag of 45.6 grams of cannabis heads found in the kitchen of the offender's house.

3 Her Honour found it difficult to determine the appellant’s precise role in the offence, he having given evidence that it was initiated by a friend. However, it appears that her Honour found it unnecessary to resolve that matter. She characterised his criminality in this way:

Even if that is the case, it is not to be overlooked that the offender was engaged in a sophisticated operation in which a large number of cannabis plants were being grown in his house. Whatever his role was, he was participating in a planned criminal activity which would have resulted in the cannabis eventually being sold. The only objective of cultivation on that scale must be profit from the drugs. His admitted use of cannabis was small, so he told the maker of the pre-sentence report. I can only find that he grew these plants for money.

4 In the light of the manner in which oral argument developed this morning, it is not necessary to examine in any detail the applicant's subjective case. It is sufficient to say that he is a mature man with no previous convictions. He came to this country some years ago from North Vietnam, in effect as a refugee. He is married with children. He had had a significant problem with alcohol and gambling, and it is his case that it was accumulated gambling debts which placed him in financial difficulty and motivated him to become involved in the present offence. Her Honour had regard to his early plea of guilty and to evidence that, since being released on bail, he had taken steps towards his rehabilitation.

5 Mr Bellanto QC prepared written submissions advancing the application on a number of bases. In the event, however, it is sufficient to refer to one only, as to which the Crown Prosecutor this morning very properly made a concession.

6 The sentence which her Honour passed, as it happens, is exactly the same as the sentence passed at first instance in R v Godden [2005] NSWCCA 160. Whether her Honour had regard to Godden in arriving at those figures is not entirely clear. What is of significance, however, is that this Court set aside that sentence and substituted a lesser sentence. The Court did so after an examination of several other decisions of the Court dealing with offences of this kind, and the sentence at which it arrived was determined after an examination of such pattern of sentence as emerged from those other cases.

7 The Crown Prosecutor this morning, as I say, properly and realistically, acknowledged that the sentence with which we are dealing does appear difficult to accommodate with the pattern which emerges from Godden, and he also realistically acknowledged that there is nothing of significance in the objective facts or the subjective circumstances in Godden which distinguish it from the present case. In my view, this is sufficient to warrant this Court's intervention, such as to impose a sentence virtually the same as that which the Court imposed in Godden.

8 Accordingly, the orders I propose are these: Leave to appeal be granted; the appeal be allowed and the sentence in the District Court quashed. In lieu, I would sentence the applicant to imprisonment for a total term of two years and two months, to date from 12 August 2005, with a non-parole period expiring today. I would direct the applicant's release in accordance with that order today.

9 SULLY J: I agree with the orders proposed and wish to add one brief thing on my own account, which is this. In the well-known decision of Lowe v The Queen it was said in the High Court, and among other things, that inconsistency in sentencing is “a badge of unfairness”. It is upon the basis of that perception that I join in the judgment latterly given by my brother Hidden and the orders proposed by his Honour.

10 I would not wish it to be thought that the decision of this Court, were there no comparable decision in the matter of Godden, would necessarily, or should necessarily, have led to the conclusion to which the Court has come in the instant appeal.

11 Subject to those matters, and as I have said, I agree with the orders proposed.

12 LATHAM J: I agree with the orders proposed by Hidden J and I also agree with the reasons expressed by Sully J.

13 SULLY J: Orders accordingly. We direct the appellant's release accordingly today not later than 4 p.m.