Tan v R

[2013] NSWCCA 164

Court of Criminal Appeal

New South Wales

Case Title:	Tan v R
Medium Neutral Citation:	[2013] NSWCCA 164
Hearing Date(s):	26 April 2013
Decision Date:	01 July 2013
Before:	Hoeben CJ at CL at 1 Latham J at 2 Barr AJ at 31
Decision:	Leave to appeal granted Appeal allowed The sentence imposed on 27 April 2012 is quashed In lieu a non-parole period of two (2) years and two (2) months is imposed commencing 3 June 2011 expiring 2 August 2013.  The balance of term is ten (10) months expiring 2 June 2014.  The applicant is to be released on 3 August 2013.
Catchwords:	CRIMINAL LAW - leave to appeal against sentence - offence of cultivate not less than a commercial quantity of prohibited plant - whether sentence manifestly excessive - whether sentence within appropriate range - significant remorse demonstrated - reference to previous cases and statistics of some utility - starting point of sentence outside appropriate range - leave to appeal granted - appeal allowed
Legislation Cited:	Drug Misuse and Trafficking Act 1985
Cases Cited:	DPP (Cth) v De La Rosa [2010] NSWCCA 194 Hili v The Queen ; Jones v The Queen [2010] HCA 45 Hili v The Queen ; Jones v The Queen [2010] HCA 45 Jones v The Queen [2010] HCA 45 Markarian v R [2005] HCA 25 Nguyen v R [2012] NSWCCA 42 Papworth v R [2011] NSWCCA 253 Pham v R [2009] NSWCCA 266 R v Daoulas NSWCCA (28 October 1993) R v Godden [2005] NSWCCA 160
Category:	Principal judgment
Parties:	Kim Kwei Tan - Applicant Regina - Crown Respondent
Representation
- Counsel:	Counsel G Brady / J Lee - Applicant J Baly - Crown
- Solicitors:	Solicitors Legal Aid NSW - Applicant Solicitor for Public Prosecutions - Crown Respondent
File Number(s):	2011/184097
Decision Under Appeal
- Before:	Syme DCJ
- Date of Decision:	27 April 2012
- Court File Number(s):	2011/184097

JUDGMENT

1. HOEBEN CJ at CL : I agree with Latham J.

2. LATHAM J : The applicant, Kim Tan, seeks leave to appeal against a sentence of four (4) years and six (6) months' imprisonment, including a non parole period of two (2) years and nine (9) months, imposed by Syme DCJ for an offence of cultivate not less than a commercial quantity of a prohibited plant (s 23(2)(a) Drug Misuse and Trafficking Act 1985). An offence of possess cannabis (36gms) was taken into account on a Form 1.

3. The offence carries a maximum penalty of 15 years' imprisonment.

4. The single ground of appeal asserts that the sentence is manifestly excessive in all the circumstances of the case. Taking into account the full discount afforded to the applicant for his early plea of guilty, the proposition is that the starting point of 6 years is manifestly excessive.

The Offence

1. On 3 June 2011 a search warrant was executed at the applicant's home. A sophisticated indoor cultivation operation, consisting of an array of filters, lamps, pumps, hoses, watering equipment, nutrients and artificial lights, was discovered in the home. Fifty three cannabis plants were found, ranging in size between 20 cm and 1 m high. This is three plants more than the prescribed commercial quantity applicable to cultivation by enhanced indoor means.

2. Of the five bedroom home occupied by the applicant, only one of the bedrooms was used for anything other than the cultivation of cannabis. That was the room occupied by the applicant. The applicant rented the premises for $600 a week.

3. Following his arrest, he admitted that he was the principal in the commission of the offence. He acknowledged that he had personally purchased all of the equipment used in the indoor cultivation of the cannabis. He also diverted electricity to enable him to undertake cultivation. A charge in relation to the diversion of electricity resulted in the imposition of a wholly concurrent sentence.

4. The applicant spent approximately $10,000.00 setting up the plantation. It was anticipated that he would receive a gross amount in the vicinity of $187,000.00 on the harvest and sale of the cannabis.

The Applicant's Subjective Circumstances

1. The applicant was 33 years of age at the time of the commission of the offence. His criminal history consists of summary property offences and motor vehicle offences between 1999 and 2009. There is a significant gap between 2000 and 2008 during which the applicant did not offend. Prior to the imposition of the instant sentence, he had not received a sentence of imprisonment.

2. The applicant is the youngest of three children whose parents separated in 1989 when his mother migrated from Malaysia to Australia. The applicant came to Australia in 1992 and obtained his citizenship in 1997. He completed his secondary education to year 10. His employment consisted largely of unskilled labouring positions.

3. The applicant was married for four years but divorced his wife in early 2011 due to his drug and gambling activities.

4. The applicant claimed that he used cannabis on a daily basis from the age of 22 and had progressed to using ice on a weekly basis at the age of 28. He developed an extensive gambling problem that deprived him of all available funds, including loans from banks and friends. His gambling debts and ongoing illicit drug use was said to be the motive for the commission of the offence. The applicant resigned from his employment to devote himself full-time to the cultivation of cannabis. He borrowed money from friends and family members to pay for the necessary equipment.

5. The applicant demonstrated significant remorse. The applicant gave evidence before the sentencing judge and claimed that he had learnt from his mistake, that he would refrain from the use of illicit drugs and that he was thankful he had not distributed any of the drugs into the community.

6. A psychological report indicated that he has a low to medium risk of re-offending, which was capable of being reduced if he undertook programs that addressed his gambling and drug addiction. The applicant appeared motivated to engage in such programs.

Manifest Excess ?

1. Where there is no complaint of any patent error in the exercise of the sentencing discretion, this Court may nonetheless conclude that the sentence is unreasonable or plainly unjust, and therefore deserving of the description "manifestly excessive" : Markarian v R [2005] HCA 25 at [25] ; Hili v The Queen ; Jones v The Queen [2010] HCA 45 at [59].

2. Counsel for the applicant recognised that the relevant question is whether the sentence is within "a proper range" (or appropriate range) and that sentencing statistics and/or "a detailed analysis of other decided cases" are of limited utility in answering that question : Papworth v R [2011] NSWCCA 253 at [53] - [55]. Nonetheless, counsel sought to demonstrate that proper range by reference to R v Godden [2005] NSWCCA 160 (including the cases reviewed therein), a table of District Court cases handed up to the sentencing judge and the relevant JIRS statistics. Early pleas of guilty apply to that material and to the analysis that follows.

3. I accept that reference to previous cases and statistics may be helpful in identifying the appropriate range for offences of the type committed by the applicant, in so far as it can :-

   provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence. But it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned: Wong and Leung, at [59].
   In the end, the sentencing discretion is individual: it must be exercised by the individual judge, in respect of the individual offender. Significant sentencing considerations include the role played by the offender in the particular importation or enterprise, the quantity of the drug involved, and its estimated street or wholesale value (having regard, inter alia, where relevant, to its purity). Also of considerable significance are the character and antecedents of the offender ... This last consideration bears upon the offender's prospects of rehabilitation, and also to any claim for leniency made on his or her behalf by reason of prior good character.

   DPP (Cth) v De La Rosa [2010] NSWCCA 194 at [304] - [305]: referred to with approval by the plurality in Hili v The Queen ; Jones v The Queen [2010] HCA 45 at [54].

4. There are two qualifications to the utility of the material relied upon by the applicant that should be observed. The first is that, arguably, the table of 26 District Court cases carries less weight than sentences that have been reviewed by an intermediate appellate court : per Basten JA in De La Rosa at [144]. The second arises out of Pham v R [2009] NSWCCA 266 concerning the change in the statutory regime which prescribes the quantity of plants for the purposes of a commercial quantity. I repeat what I said in that case (Young JA and Hidden J agreeing) :-

   13 The applicant seeks to support [the contention that the sentence is manifestly excessive] by reference to two decisions of this Court [namely R v Godden [2005] NSWCCA 160 and R v Quan [2006] NSWCCA 382], both of which relate to the hydroponic cultivation of a commercial quantity of cannabis plants, prior to the introduction on 14 July 2006 of the penalty regime applicable to cultivation by "enhanced indoor means". In practical terms, these decisions relate to the hydroponic cultivation of more than 250 plants, because at that time the Act did not reflect the potential for increased risk of harm to users of hydroponically grown cannabis. Following recognition of the significantly increased yield of the more potent parts of the cannabis plant when grown hydroponically, the legislature prescribed 50 plants as the commercial quantity for such crops.
   14 ............[It] is noteworthy that this reduction of the threshold for a commercial quantity in such cases was intended to signal an increase in the gravity of the offence of cultivation by these means, as viewed by the legislature. The second reading speech introducing the Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Bill on 25 May 2006 included the following :-

   Cannabis plants cultivated by hydroponic and other enhanced indoor means grow much faster than plants grown by traditional outdoor methods, and produce between five and seven times the yield. The current quantity amounts in the Drug Misuse and Trafficking Act at which maximum penalties apply for cannabis cultivation offences are based upon the yield, harvest patterns and profitability of outdoor, or "bush grown" cannabis. They are not an accurate reflection of the commerciality of hydroponic cannabis operations. This bill addresses this inequity.Schedule 1 amends the Drug Misuse and Trafficking Act 1985. Item [1] inserts in the Act a definition of "cultivation by enhanced indoor means" in relation to a prohibited plant. The two leading methods of enhanced indoor cannabis cultivation-hydroponics and aeroponics-are covered by the definition. Item [16] inserts a new plant category into schedule 1 of the Act entitled "Cannabis plant cultivated by enhanced indoor means", with the commercial and large commercial quantities being set at levels five times lower than for outdoor cannabis to reflect the much higher yields produced by this method. This means that existing maximum penalties for cultivation offences involving commercial and large commercial quantities will cut in at these lower levels in respect of cannabis cultivated by enhanced indoor means to reflect the commerciality of operations of this size.

5. Thus, reliance upon Godden is of limited assistance to the applicant. While the quantity of plants in that case was 319, it was only 69 plants above the then prescribed commercial quantity of 250, not more than 6 times the commercial quantity that now applies to indoor hydroponic cultivation.

6. However, it remains true to say that there is some relativity between the applicant's case and Godden. The offender in Godden was 43 years of age, had a minor record but was on a bond at the time of the commission of the offence, had a favourable subjective case, was genuinely remorseful and had good prospects of rehabilitation. The quantity of plants he grew hydroponically as the principal was 27% more than the relevant commercial quantity. The sentence of 3 years 2 months was reduced on appeal to 2 years and 2 months.

7. By way of comparison, the applicant hydroponically cultivated 6% more than the relevant commercial quantity.

8. None of the cases referred to in Godden allow for a meaningful comparison. One was a Crown appeal, in another the quantity of plants is unknown, and in R v Daoulas NSWCCA (28 October 1993) the offender performed a secondary role to the principal. They cultivated 816 plants on the banks of the Darling river, that is, more than 3 times the relevant commercial quantity. The offender took part in the cultivation after losing his employment following retrenchment. He was 36 years of age with no priors. He was genuinely remorseful. A sentence of 4 years 8 months was reduced to 3 years 4 months on appeal.

9. In Nguyen v R [2012] NSWCCA 42, the Court dismissed an appeal against the severity of a sentence of 5 years and 3 months, imposed upon a principal, 34 years of age, who cultivated 157 plants (3 times the relevant commercial quantity) inside residential premises. The offender had no priors and was not remorseful. The offence was committed in part because of gambling debts.

10. In the course of that decision, Davies J (McClellan CJ at CL and Garling J agreeing) reviewed the following cases of indoor cultivation at [35] :-

    (a) Nguyen v R [2008] NSWCCA 322
    In this matter the Applicant pleaded guilty to a charge of cultivating not less than the commercial quantity of cannabis by enhanced indoor means. There were 105 plants involved. He also pleaded guilty to supplying cannabis in that he had in his possession 3708.7 grams of cannabis leaf. The maximum penalty for the first offence was 15 years imprisonment. His Honour considered that the offences fell within the middle range of seriousness. He allowed a 30% discount for the plea of guilty and for his remorse and contrition. It appears that he was the principal involved in the cultivation. In relation to the first count of cultivation he was sentenced to a total sentence of 5 years imprisonment with a non-parole period of 3 years and 6 months. An appeal to this Court was dismissed.
    (b) Thi Lan Nguyen v R [2009] NSWCCA 181
    In this matter the Applicant pleaded guilty to cultivating not less than the commercial quantity of cannabis by enhanced indoor means. The charge involved 172 cannabis plants. The maximum penalty for the offence is 15 years imprisonment. It was found that she agreed to look after the house where the plants were cultivated in return for financial gain and accommodation. There was no evidence to suggest that she initiated the cultivation. She was given a 25% discount for an early plea and sentenced to a period of imprisonment of 4 years with a non-parole period of 2 years and 6 months. An appeal to this Court reduced the sentence to a period of 3 years with a non-parole period of 1 year and 10 months.
    (c) Van Cuong Pham v R [2009] NSWCCA 266
    The Applicant pleaded guilty to an offence of cultivating by enhanced indoor means a commercial quantity of cannabis. There were 112 plants involved. The maximum penalty is 15 years imprisonment. The Judge found that the Applicant's role in the commission of the offence was at a relatively low level, he having been recruited by other unidentified persons. In effect he acted as a "babysitter" for the crop in return for receiving something between $10,000 and $15,000. The Applicant was given a 25% discount for an early plea. He was sentenced to a period of imprisonment of 3 years with a non-parole period of 18 months. An appeal to this Court alleging that the sentence was manifestly excessive was dismissed.
    (d) Thi Don Truong v R [2009] NSWCCA 41
    The applicant pleaded guilty to the offence of cultivating not less than the commercial quantity of cannabis. The maximum penalty was fifteen years imprisonment. There were 189 plants involved. The judge considered her criminality fell a little below the middle of the range. The applicant received a 25% discount for an early plea and was sentenced to a non-parole period of 18 months with an additional term of two years. On appeal to this court against the severity of the sentence it was held that even if she did not initiate the cultivation enterprise she took it over and maintained it for commercial gain. The appeal against severity was dismissed.

11. In (b), (c) and (d), the offenders were aged between 43 and 45, had no criminal history and had cultivated between two and four times the relevant commercial quantity of 50 plants. The sentences confirmed on appeal ranged between three and three and half years' imprisonment. The case of Nguyen in (a) is silent on the question of the offender's age and priors. A starting point of 7 years appears to have been adopted by the sentencing judge for the cultivation offence.

12. Of the 26 District Court cases summarised in the table, eleven relate to the indoor cultivation of more than 50 but less than 100 plants. Only five of those concerned a principal. All but one of those five had no relevant prior convictions. These offenders were between the ages of 20 and 53 and committed the offence for reasons of financial hardship. The sentences imposed ranged between 18 months (suspended) and two years and nine months' imprisonment.

13. Finally, the JIRS statistics reveal that, of 21 cases between October 2005 and September 2012, where the offender pleaded guilty and had no prior criminal history, 20 offenders received between one and three years' imprisonment. One offender received a sentence of 8 years' imprisonment. A proportion of these cases may have involved the cultivation of more than 250 plants.

14. Having regard to this material, it is clear that the judge's starting point in the instant case was outside the appropriate range established by current sentencing practice. In my view, the appeal must succeed.

15. The judge found special circumstances in order to allow the applicant to address his gambling and drug addiction under supervision. Accordingly, there should be a moderate alteration to the statutory ratio.

16. The orders I propose are :-

    (1)Leave to appeal granted.

    (2)Appeal allowed.

    (3)The sentence imposed on 27 April 2012 is quashed.

    (4)In lieu, a non-parole period of two (2) years and two (2) months is imposed, commencing 3 June 2011, expiring 2 August 2013. The balance of term is ten (10) months, expiring 2 June 2014. The applicant is to be released on 3 August 2013.

17. BARR AJ : I agree with Latham J.