Tuan Pham v The Queen
[2018] VSCA 308
•21 November 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0269
| TUAN PHAM | Appellant |
| 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 308 |
| JUDGMENT APPEALED FROM: | DPP v Pham [2017] VCC 1858 (Judge Murphy), 6 December 2017) |
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CRIMINAL LAW – Sentence – Appeal – Appeal against sentence – Cultivating a commercial quantity of cannabis – Two charges of theft – Sentenced to 4 years and 6 months’ imprisonment – Whether specific deterrence relevant – Whether sentence manifestly excessive – Whether sentences or order for cumulation outside boundary of the proper exercise of sentencing discretion – Sentence not manifestly excessive – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J O’Connor | Haines & Polities |
| For the Respondent | Mr J B B Lewis | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA:
For the reasons given by Ashley JA, whose judgment I have had the considerable advantage of reading in draft, I agree that the appeal should be dismissed.
ASHLEY JA:
Tuan Pham, the appellant, was sentenced on 6 December 2017 to a total effective sentence of 4 years and 6 months’ imprisonment. The Judge fixed a non-parole period of 2 years and 9 months’ imprisonment. Sentence was imposed after the appellant pleaded guilty to a charge of cultivating a commercial quantity of cannabis (Charge 1) for which a sentence of 4 years’ imprisonment was imposed, and to two charges of theft (Charges 2 and 3) on which sentences of 4 months and 9 months’ imprisonment respectively were imposed. On Charge 3, 6 months of the 9 months sentence was cumulated on the sentence on Charge 1. So was arrived at the total effective sentence of 4 years and 6 months’ imprisonment.
Grounds
The appellant appeals by leave[1] on two grounds:
[1]Granted by Priest JA on 13 April 2018.
(1)The sentencing Judge erred in finding that specific deterrence was of relevance to the sentencing of the appellant.
(2)The sentences imposed on the charge of cultivating of a commercial quantity of cannabis and two charges of theft of electricity, the non-parole period and the orders for cumulation:
(a) were manifestly excessive; and
(b)were outside the range of sentences reasonably open in the circumstances of the offence and the offender; and
(c)resulted in a total effective sentence and non-parole period that was manifestly excessive.
Circumstances
The circumstances of the offending were not in contest. The Judge below described them this way:
You and your wife had been living in a property at Wollert (‘the Wollert property’). You had purchased that property in March 2014. On 29 September 2015 you purchased another property in Epping (‘the Epping property’). You had been living in the Wollert property, but moved to the Epping property. The mailing address for the Epping property remained the Wollert property.
Charge one is a rolled up charge of cultivating a commercial quantity of cannabis committed by you at both of the properties.
In December 2015, neighbours of the property in Wollert noticed that the blinds on the house at Wollert were drawn and that there was a hose running into the house through a window. The smell of cannabis was also detected. Around December a report was made to the police but no action was taken.
Police raided the Wollert property on 12 February 2016 and found a sophisticated cannabis crop within the property. Power had been bypassed and the value of the stolen electricity is $8786.83 (charge three). Four rooms and a backyard shed were being used for cultivation. A total of 90 cannabis plants weighing 119.32 kilograms were found. 51 of the plants were assessed as weighing more than 25 kilograms as at late December 2015. The usual items associated with a hydroponic plantation were found, including a bypass, a power board, transformers, light globes and light shades. Numerous documents in the name of you and your spouse were also found.
At the time police were executing the search warrant of the Wollert property, you were seen driving past the property.
The police then executed a search warrant at your Epping property. They located a second hydroponic cannabis crop at the rear of the property in a shed. You were found in possession of the keys and remote controls to the Wollert property. There was also an electrical bypass installed. The value of the stolen electricity was $1120.62 (charge two).
Six cannabis plants with a net weight of 4.84 kilograms were located in the shed of the Epping property. The usual equipment for hydroponic operation consisting of a bypass, power board, six transformers, light globes and light shades were found. Similar features of the two crops were noted including an unusual rope pulley system attached to the light shades and additional pumps to assist with drainage. There was also an unusual nutrient delivery system and the use of a thin silver wire.
The total number of plants across the two locations was 96% of a commercial quantity by number, and nearly 5 times a commercial quantity by weight, being 123.76 kilograms.
You were not interviewed until 22 February 2016 and told the police that you had rented out the Wollert property three months prior. You said that you did not know the names of the tenants and that the tenants were to pay rent to you, however, they had not done so. You also said that you didn’t pay attention to the house as you drove past while police were executing the search warrant. In the record of interview, you made a number of no comment answers.
The case against you was put that both of the properties were the subject of similar setups and thus, charge one is a rolled-up charge.[2]
[2]DPP v Tuan Pham [2017] VCC 1858 (‘Sentencing Remarks’) [4]–[13].
Notwithstanding what he had said when interviewed by the police on 22 February 2016, the appellant pleaded guilty shortly before trial. He could not claim that his plea was an early one.
As the Judge noted, the Wollert and Epping properties were purchased, respectively, in March 2014 and late September 2015. The Epping property was the family home at the time when the appellant was arrested in February 2016.[3] Both properties were purchased, so far as the material before the Judge revealed the situation, before the appellant commenced his criminal activity. Nonetheless, having regard to the offence the subject of Charge 1, restraining orders were made in respect of both properties. At the time when the plea was heard, the appellant’s wife had made an exclusion application in respect of her interest in the properties.[4]
[3]Ibid [4].
[4]Ibid [45].
Judge’s assessment of the gravity of the offending
The Judge expressed the following conclusions with respect to the gravity of the appellant’s offending:
Using the two clusters of cases referred to in Nguyen 2016,[5] your counsel did not dispute that this offending was to be categorised with cluster two, the more serious of the clusters. Your counsel did not suggest that you would fall into cluster one, that involves ‘crop-sitters’ or other functionaries.
[5]Nguyen v The Queen (2016) 311 FLR 289, 316 [84] (citation in original); [2016] VSCA 198 [84].
The position of the learned Crown prosecutor was that, regardless of the particular label to be ascribed to your conduct, you were to be treated as if you were a ‘principal’. I agree with this characterisation.
There are a number of matters relevant to assessing your role in the seriousness of the offending here. First, the actual period of offending is just under three months. Second, by your plea to charge two you have accepted responsibility for the theft of the electricity at the Epping property for the period 6 November 2015 to 12 February 2016. The span of offending is relevant to your culpability and to the seriousness of your offending.
Third, although the activity at the Wollert property had been brought to the attention of police in December 2015, the search warrant was not executed until 12 February 2016. As I have indicated, the biologist who tested and weighed the plants assessed some 51 of the plants as having an aggregate mass in excess of 25 kilograms as of late December 2015.
The assessed age of the plants post nursery as at 12 February 2016 varied between 2–3 weeks for the plants found in the shed at Wollert; 7–8 weeks for the plants at the Epping property; and 14–16 weeks for the balance of the plants at the Wollert property.
There was, thus, a range of ages which indicates a sophistication and continuity in the cultivation operation.
…
As I noted, the learned Crown prosecutor submitted that you are to be treated as a ‘principal’. This applied, notwithstanding that your case was that you did not have the expertise to install the bypass arrangements or the hydroponic set up you must had assistance from others, but there is no material to ascertain who funded the whole arrangement.
Given that you controlled the two properties and the two setups were similar, and your admission to the psychologist that you were to be paid for the cannabis, the appropriate way to characterise you is as a principal in a joint criminal enterprise with one or more unknown individuals, for financial reward.
It does not lessen your culpability that others were also involved given that you were the owner of and in control of both properties.
When this is combined with the scale of the operation, in terms of the number of plants, the quantity and the span of offending, I regard your offending as, at least, in the mid-range of cluster 2 cases.
As indicated in Nguyen 2016, there are features of the cases referred to that do not apply here. The duration of your offending is of mid-range, with the culpability significant given the duration of the counts of theft of electricity.[6]
[6]Sentencing Remarks [21]–[32].
In so concluding, the Judge had largely not accepted submissions for the appellant that, notwithstanding a concession that the offending was serious and that the hydroponic setup was sophisticated,[7] nonetheless —
[7]Ibid [17], [58].
(1) There was a lack of sophistication with respect to the Wollert operation, which was fairly obvious to neighbours.[8]
[8]Ibid [17].
(2) There was no evidence that there had been any previous crop or evidence that plants were ever harvested.[9]
[9]Ibid [18].
(3) There was no evidence that the appellant had received any financial reward.[10]
(4) There was no evidence of the appellant engaging in trafficking activity.[11]
(5) There was no evidence that the appellant was living a life of luxury or that he had been enriched by the enterprise.[12]
[10]Ibid.
[11]Ibid.
[12]Ibid.
Matters relied upon in mitigation of sentence on the plea
On the plea, the appellant relied upon the following circumstances:
(1)Born in Vietnam, he had migrated to Australia in August 2008. He had studied English, and had enrolled in a finance and technology course. He had been employed in various jobs.
(2)He had become a permanent resident of Australia in 2016. But, as a non-citizen, he faced the real prospect of deportation. His wife, on the other hand, whom he had married in 2009,[13] had sat her citizenship test, and was waiting to be allocated to a citizenship ceremony. There were now three children of the marriage, aged six, three and one. All of the children were born prematurely, and had some residual health problems.
(3)The appellant was of good character, having no previous convictions either in Vietnam or Australia, and having good prospects of rehabilitation.
(4)The appellant’s late plea of guilty nonetheless had ‘full utilitarian benefit’.
(5)The automatic forfeiture provisions with respect to the Wollert and Epping properties constituted an additional punishment, which should be brought to account in the sentencing synthesis.
(6)A psychologist’s report, dated 30 November 2017, expressed the conclusion that the appellant had previously experienced such significant drug-related and alcohol problems as to warrant a diagnosis of ‘cannabis-use disorder’ and ‘alcohol-use disorder’, both of which would be classified at the ‘moderate’ level, but could be specified as being ‘in sustained remission’.
(7)Further, according to the psychologist’s report, the appellant had ‘depressive and anxiety-related symptoms of moderate intensity’, these being related to his current predicament.
(8)Finally, the appellant had made an offer to police to provide certain details of another person involved in the criminal activity, an offer which the police had rejected.
[13]Other materials stated that the marriage took place in 2011.
With respect to matters raised in mitigation, the Judge assessed the appellant’s prospects of rehabilitation as ‘reasonable’.[14] Having referred to the absence of prior convictions and the appellant’s good work ethic in Australia, the Judge observed that:
You will need, however, to address your alcohol and drug problems and address becoming competent in English.[15]
[14]Ibid [41].
[15]Ibid.
With respect to the prospect of deportation, the Judge correctly noted that, as a consequence of a sentence of imprisonment of more than 12 months being imposed, the appellant’s visa would be cancelled and he would be liable to deportation, although the Minister had power to revoke the deportation order.[16]
[16]Ibid [42].
In the event, the Judge expressed himself satisfied that the prospect of deportation would increase the burden of imprisonment.[17]
[17]Ibid [43].
Further, the Judge accepted that, in the event that the appellant was deported, he would have lost the opportunity to settle permanently in Australia, this being an additional burden that he took into account. Relatedly, his Honour also took into account that leaving Australia would result in separation from his wife and children.[18]
[18]Ibid [44].
Finally, the Judge stated that he had regard to the prospect that the Wollert and Epping properties would be forfeited.[19]
[19]Ibid [45].
Sentencing considerations identified by the Judge
The Judge referred to various decisions of this Court in recent years in which sentences have been imposed for the cultivation offence the subject of Charge 1. His Honour rightly observed that whilst the cases provided some assistance in ascertaining current sentencing practices, such practices are simply one matter for consideration in the sentencing synthesis.[20]
[20]Ibid [48]–[56].
His Honour then observed that the present case involved a sophisticated hydroponic setup, and that there was a period of three months over which the offence had been committed. It had been conceded by his counsel that the appellant was not to be dealt with as if he was a crop sitter.[21] Allowing for matters in mitigation, his Honour then made these observations, immediately before passing sentence:
General deterrence must play a principal role in sentencing. This is economic crime and a signal has to be sent to all tempted to engage in such crime that
heavy sentences will be imposed. Your conduct in being involved in this significant cannabis operation must be utterly condemned.
In your case, specific deterrence is also of some relevance notwithstanding that you have no prior convictions. This is because you do have a cannabis disorder that, although in remission, requires appropriate treatment.[22]
[21]Ibid [58]–[59].
[22]Ibid [61]–[62].
Proposed Ground 1
Appellant’s submissions
It was submitted for the appellant in writing that the sentencing principle of specific deterrence had little, if any, weight to play in sentencing the appellant, because he had no prior convictions or subsequent or pending matters. The fact that he was an excessive user of cannabis did not mean that the principle of specific deterrence should be given weight in the sentencing calculus. The Judge erred by concluding to the contrary. Necessarily, his Honour had imposed a more punitive sentence than would otherwise have been the case.
Orally, counsel submitted that, error being apparent, the Court should be satisfied that a different sentence should be imposed.[23] The circumstances of the offending and the offender compelled a conclusion favourable to the appellant. The enquiry that the Court must undertake was not the same as that arising under Ground 2, where complaint of manifest excess was made, but sentencing considerations bearing upon the answers to those questions were the same.
[23]Criminal Procedure Act 2009 s 281(1)(b). The burden resting upon the appellant.
Respondent’s submissions
It was submitted for the respondent in writing that appellant’s trial counsel had conceded that specific deterrence had a role to play. Reliance was placed upon DPP (Cth) v Maxwell,[24] a case involving the importation of a commercial quantity of a border-controlled drug for financial reward by a first time offender, where this Court had stated that sentencing judges were justified in treating the scale of the anticipated reward as relevant to considerations of deterrence, both specific and general. It was thus relevant in the present case that the appellant offended in anticipation of financial reward. Thus, specific deterrence did have a role to play in sentencing the appellant and it was inconsequential that the Judge found that specific deterrence was of some relevance because the appellant had a cannabis disorder.
[24][2013] VSCA 50.
Orally, counsel did not formally concede that the Judge had erred. But he stated that he was not submitting that there was ‘a logical link’ between specific deterrence and the appellant’s past drug abuse; and he referred to the Judge’s ‘apparent misidentification’ of the basis for a conclusion that specific deterrence was also of ‘some relevance’.
Counsel’s principal oral submission on this Ground, as I apprehend it, was this:
(1) It was common ground below that specific deterrence had some role to play.
(2) The Judge had said only that it was a factor of ‘some relevance’. That was accurate.
(3) When one considered the scale (production of more than five times the threshold of a commercial quantity), sophistication (of the hydroponic set-up), and duration of the offending, carried out at two premises (one of them being his home) by a man who was not simply a crop sitter (his counsel had acceded to the Judge’s characterisation of the appellant as ‘a co-principal’) and who was offending for anticipated reward, and considered also the circumstances of mitigation, the Court should not be satisfied that a different sentence should be imposed.
Analysis
It is instructive, in my opinion, to note the course of the plea. There was this interchange between appellant’s counsel and the Judge:
COUNSEL: Clearly in cases of cultivation of cannabis general deterrence and denunciation are significant importance of sentencing of this kind. The case law indicates that but it’s my submission, given his personal circumstances, specific deterrence will have less of a role.
HIS HONOUR: Why?
COUNSEL: Well, Your Honour, he’s somebody with no priors. He’s not entrenched into the criminal justice system. He’s not involved in a syndicate.
HIS HONOUR: He’s involved in something.
COUNSEL: Well, there’s something but it’s not a high level syndicate with numerous properties, trafficking occurring. He’s not entrenched in criminality, in my submission. I am not saying it shouldn’t be any specific deterrence but it’s less of a role in my submission.
HIS HONOUR: But the doctor says his future is problematic.
COUNSEL: Well, he says it’s guarded given his lack of understanding and treatment in relation to his drug addiction.
HIS HONOUR: Yes.
COUNSEL: He’s been abstinent now for quite a long period of time, it’s a good start.
The written submissions for the appellant below under the heading ‘Deterrence’, said this:
It is accepted that general deterrence and denunciation are of significant importance in sentencing of offences of this kind. It is submitted that given Mr Pham’s personal circumstances that specific deterrence has less of a role.
It is apparent, as the respondent submitted in this Court, that the appellant did not contend below that specific deterrence had no part to play in the sentencing synthesis. But equally, appellant’s counsel advanced a submission that it had little part to play because his client had no prior criminal history and was not entrenched in offending.
It is next apparent that the Judge went off at a tangent. His Honour referred to the psychologist’s report in saying that the appellant’s future was problematic. This, it seems, was the genesis of his Honour’s observation in his sentencing remarks that specific deterrence was of relevance because the appellant had a cannabis disorder which, although in remission, required appropriate treatment.[25]
[25]Sentencing Remarks [62].
It might be said that appellant’s counsel below failed to appreciate the possible meaning and intent of the Judge’s remark in argument; and that he ought to have disabused the Judge of the notion that the appellant’s substance abuse disorder made specific deterrence a relevant sentencing consideration. But be that as may, I consider that the circumstance identified by the Judge was not a basis for a finding that specific deterrence had a role to play in the sentencing synthesis. It was akin to saying that the appellant needed to be deterred not from reoffending, but from relapsing into substance abuse which might, in turn, lead on to further offending for intended financial gain. Additionally, of course, the Judge’s rejection of the appellant’s claim that he had grown the cannabis at the Epping address for his own use[26] meant that it was not open to his Honour to reason that the appellant needed to be deterred from growing cannabis in order to feed his drug habit.
[26]Ibid [17].
The Judge might have concluded that specific deterrence did have some part to play in the sentencing synthesis, in that the sentence imposed should deter the appellant from engaging in future drugs offending with a profit motive. But that is not what his Honour said.
In the event, in my opinion, the appellant established error. But I am not satisfied that a different sentence should be imposed. To my mind, the circumstances noted at [21](3) above, though giving full weight to matters urged in mitigation,[27] lead to that conclusion.
Ground 2
[27]Orally, appellant’s counsel particularly relied upon — (1) his client’s plea of guilty, (2) evidence of remorse, (3) absence of prior convictions, (4) reasonable prospects of rehabilitation, (5) the burden of imprisonment by reason of the prospect of deportation and separation from his wife and children if deported, and (6) forfeiture of his interest in the Wollert and Epping properties.
Appellant’s submissions
It was submitted for the appellant in writing that, whilst there was no challenge that the appellant fell into ‘cluster two’ as comprehended by the decision of this Court in Nguyen v The Queen,[28] and was not to be sentenced as a crop sitter, nonetheless his offending occurred over a relatively short period of time. Furthermore, the scope of his offending was very limited at the second address. Again, there was no evidence of betterment or financial gain, although it was accepted that there was an expectation of financial reward.
[28][2016] VSCA 198 [84].
On the credit side of the ledger, the appellant could call in aid his plea of guilty, cooperation with the police, some evidence of remorse, absence of prior convictions, a good work ethic and sound employment history, difficulties with cannabis and alcohol, limited English skills, the presence of depressive and anxiety symptoms, his status as a married man with three young children, all of the children having medical issues, the increased burden of imprisonment by reason of prospect of deportation, separation from his wife and young children, and finally, the Judge’s finding that the appellant had reasonable prospects of rehabilitation.
In the event, it was submitted, a sentence of four years’ imprisonment on Charge 1 was simply too long. Further, the sentences imposed on the charges of theft were disproportionate. The amounts involved would not justify an immediate term of imprisonment, let alone sentences of the magnitude imposed. Further again, cumulation of two thirds of the sentence on the second charge of theft, Charge 3, could not possibly be justified.
Respondent’s submissions
It was submitted for the respondent in writing that this was serious offending. There were plants of different ages found at the different properties. This demonstrated sophistication in continuity in the cultivation operation. The hydroponic setup at both properties was sophisticated. The cultivation was committed for expected financial gain. The appellant owned both the properties at which the offending occurred. He was a principal and not a mere crop sitter.
As to circumstances relied upon by the appellant in mitigation, it was submitted that the Judge took into account each of the matters called in aid by the appellant, save that —
(1)It had been conceded on the plea that the appellant lied in his record of interview.
(2)It had been submitted on the appellant’s behalf that he had told police that his offending at Epping was for personal use, and that this was so. But the Judge had rejected this account of events.
(3)The appellant’s offer of assistance had been late-made and his counsel below had conceded there should be no discount of sentence.
(4)Appellant’s counsel had not relied upon R v Verdins[29] in connection with his depressive and anxiety-related symptoms.
(5)It had not been submitted that the Judge should find there would be family hardship because of what was said to be the problems with his children’s health.
(6)The Judge’s finding with respect to the prospect of the appellant being deported, and its consequences for him and his family, was ‘generous’.
(7)The theft of electricity associated with cannabis cultivation was a separate form of offending which warranted orders for cumulation.[30] Further, with respect to cumulation and concurrency, the ‘widest discretion is conferred’,[31] and there is often more than one acceptable solution.[32]
[29](2007) 16 VR 269.
[30]Counsel cited Nguyen [2013] VSCA 63 [23]–[24] (Kaye AJA).
[31]R v Mantini [1998] 3 VR 340, 348 (Callaway JA).
[32]Ibid 349.
Orally, counsel accepted, in effect, that the sentences imposed on the theft charges invited some scrutiny. It might be said that there should have been some cumulation of the sentences on Charges 2 and 3 on the sentence on Charge 1, rather than extensive cumulation only of the sentence on Charge 3. Nonetheless, the Court should not be satisfied that the sentences on those charges or the order for cumulation were outside the boundary of the proper exercise of the sentencing discretion. Even if, counsel added, there was force to a complaint about the structure of the sentences imposed, the total effective sentence should be no different.
Analysis
In my opinion, the appellant’s complaint with respect to the sentence passed on Charge 1 cannot be sustained. Given some variability in sentencing for the particular offence, the sentence cannot be viewed as an outlier, a description which would suggest that the sentencing discretion had miscarried. I add that whilst the ground of manifest excess raises a question which is conceptually different from the question which must be answered under s 281(1)(b) of the Criminal Procedure Act2009 when error has been established, it is difficult to see how an answer adverse to an appellant to the latter question could leave any room for a finding of manifest excess.
Further in my opinion, the appellant’s complaint with respect to the sentences on the theft charges should not be upheld; and likewise with the order for cumulation. I was, for a time, attracted to a conclusion that cumulation of 6 months of the 9 months sentence on Charge 3 on the sentence on the cultivation charge was outside the boundary of what might reasonably have been done in the exercise of the sentencing discretion. But, in the end, I consider that the wide discretion given to judges with respect to matters of concurrency and cumulation means that the appellant’s complaint must be rejected. It follows, when regard is had to the entirety of the appellant’s offending and to the circumstances called in mitigation, that in my view it cannot be said that the total effective sentence which was imposed was manifestly excessive.
Order
Despite the attractive and well-developed arguments advanced by appellant’s counsel, I would dismiss the appeal.
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Tuan Pham v The Queen [2018] VSCA 308
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