Vu v R

[2018] NSWCCA 122

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Thiu Dieu Vu v Regina [2018] NSWCCA 122
Hearing dates:	30 May 2018
Date of orders:	22 June 2018
Decision date:	22 June 2018
Before:	Payne JA at [1]; Johnson J at [75]; Adamson J at [79]
Decision:	(1)   Leave to appeal against sentence granted;  (2)   Appeal dismissed.
Catchwords:	CRIME – appeal against sentence – guilty plea to three counts under Drug Misuse and Trafficking Act 1985 (NSW) – further offences taken into account on each count on Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) – three co-offenders – whether sentencing judge erred in approach to indicative sentences leading to excessive aggregate sentence – parity – whether justifiable sentence of grievance when comparing sentence imposed upon one co-offender – whether sentence manifestly excessive
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Electricity Supply Act 1995 (NSW)
Cases Cited:	Andreata v R [2015] NSWCCA 239 Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 Crowley v R [2017] NSWCCA 99 Gill v R [2010] NSWCCA 236 Green v The Queen (2011) 244 CLR 463; [2011] HCA 49 Hughes v R [2018] NSWCCA 2 JM v R [2014] NSWCCA 297 Kremissis v R [2016] NSWCCA 257 Miles v R [2017] NSWCCA 266 Nguyen v R [2012] NSWCCA 42 Petrovski v R [2017] NSWCCA 309 Portolesi v R [2012] NSWCCA 157 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 Tan v R [2013] NSWCCA 164 Thangavelautham v R [2016] NSWCCA 141 Wan v R [2017] NSWCCA 261 Wei v R [2015] NSWCCA 66
Texts Cited:	None
Category:	Principal judgment
Parties:	Thiu Dieu Vu (Applicant) Crown (Respondent)
Representation:	Counsel: S. Pararajasingham (Applicant) H. Roberts (Respondent)   Solicitors: Lyndon Nguyen Legal (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2015/340035
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Crime Citation: N/A Date of Decision: 05 July 2017 Before: Sides QC DCJ File Number(s): 2015/340035

HEADNOTE

[This headnote is not to be read as part of the judgment]

Following a police investigation into the cultivation of cannabis plants by enhanced indoor means at four premises in Sydney, the appellant pleaded guilty to an indictment containing three counts. Further offences were taken into account with respect to each count on a Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The sentencing judge sentenced Ms Vu together with three co-offenders, Mr Pham, Mr Vu and Mr Nguyen. The applicant was sentenced to an aggregate sentence of imprisonment for 8 years. A non-parole period of 4 years was fixed to commence on 18 November 2015 and expire on 17 November 2019.

The issues on appeal were:

(i)    whether the sentencing judge erred in his approach to Ms Vu’s indicative sentences leading to an excessive aggregate sentence;

(ii)   whether Ms Vu suffers a justifiable sense of grievance when comparing the sentence imposed upon the co-offender Mr Vu to the sentence imposed upon her; and

(iii)   whether Ms Vu’s sentence is manifestly excessive.

The Court (Payne JA, Adamson and Johnson JJ agreeing), held:

Per the Court (Payne JA, Johnson and Adamson JJ), dismissing the appeal:

In relation to issue (i), per Payne JA at [46] (Johnson J agreeing at [75], Adamson J agreeing at [79]):

This is not a case where the determination by the sentencing judge of the same period of indicative sentences in counts 1 and 3 indicates that some error of principle has been made in fixing the aggregate sentence of 8 years or the non-parole period of 4 years. The sentencing judge, having conducted the required instinctive synthesis in relation to two counts on the indictment, with different Form 1 offences attached to each, which yielded the same indicative sentences, was not required to create an artificial distinction between the counts by the addition or subtraction of weeks or months merely to demonstrate a difference that his Honour did not perceive, lest there be error in the fixing of the aggregate sentence.

JM v R [2014] NSWCCA 297 at [39] applied.

In relation to issue (ii), per Payne JA at [57] and [63] (Johnson J agreeing at [75], Adamson J agreeing at [79]):

This is a case where the differences in the indicative sentence are reasonably explained by the degree of difference between the role of the co-offenders in the syndicate and the nature of their respective offending conduct. The disparity in the sentences imposed was justified by those differences and no error has been shown in the sentencing judge’s decision.

Wan v R [2017] NSWCCA 261, Gill v R [2010] NSWCCA 236 and Green v The Queen (2011) 244 CLR 463; [2011] HCA 49 applied.

Thangavelautham v R [2016] NSWCCA 14 considered.

In relation to issue (iii), per Payne JA at [68] and [72] (Johnson J agreeing at [75], Adamson J agreeing at [79]):

What is important in sentencing is consistency in principle, rather than numerical equivalence. This is not a case where intervention by this Court is warranted on the basis that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. The aggregate sentence imposed was not manifestly excessive.

Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2, Hughes v R [2018] NSWCCA 2, Obeid v R [2017] NSWCCA 221, Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 applied.

Crowley v R [2017] NSWCCA 99, Portolesi v R [2012] NSWCCA 157, Andreata v R [2015] NSWCCA 239, Tan v R [2013] NSWCCA 164, Nguyen v R [2012] NSWCCA 42, Wei v R [2015] NSWCCA 66 considered.

Judgment

1. PAYNE JA: This is an application for leave to appeal against the sentence imposed by Sides QC DCJ on 5 July 2017 at the Parramatta District Court. The sentencing judge sentenced the applicant to an aggregate sentence of a non-parole period of 4 years with a 4 year additional term. The applicant is first eligible for release on parole on 17 November 2019.

Background facts

2. In August 2014, a police investigation commenced into the cultivation of cannabis plants by enhanced indoor means at four premises in Sydney. The premises were in Eastwood, North Parramatta, Chipping Norton and Carlingford. Police utilised a combination of physical and electronic surveillance to identify people involved in the cultivation and distribution of cannabis from these premises. The applicant was identified and charged as a person involved in the cultivation and distribution of cannabis from these premises.

3. The applicant ultimately pleaded guilty to an indictment containing three counts:

1. knowingly take part in the cultivation of not less than the commercial quantity of cannabis plants (105 plants) at Chipping Norton under s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) (count 1);

2. supply prohibited drug (9.4kg of cannabis leaf) under s 25(1) of the Drug Misuse and Trafficking Act (count 2); and

3. cultivate not less than a commercial quantity of prohibited plants (91 cannabis plants) at Eastwood under s 23(2)(a) 23(1)(a) of the Drug Misuse and Trafficking Act (count 3).

Count 1

4. The subject matter of count 1 was that the police intercepted telephone calls which revealed that the applicant was assisting a co-offender, Mr Nguyen, with the cultivation of 105 cannabis plants at the Chipping Norton premises. Count 1 concerned the applicant assisting Mr Nguyen to cultivate cannabis plants at the Chipping Norton house between 14 May 2015 and 18 November 2015.

5. A further three offences were taken into account with respect to count 1 on a Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW):

1. cultivate prohibited plants by enhanced indoor means for a commercial purpose at the Carlingford premises under s 23(1A)(b) of the Drug Misuse and Trafficking Act; and

2. two counts of knowingly dealing with the proceeds of crime under s 193B(2) of the Crimes Act 1900 (NSW) – being amounts of $160,060 and $1,090 the police found at the Carlingford and Eastwood premises respectively.

Count 2

6. The subject matter of count 2 was that on 14 July 2015, the police intercepted a telephone conversation in which the applicant was heard agreeing to supply cannabis. The next morning, the police observed the applicant putting a plastic bag and a cardboard box into the boot of a car. Police obtained a search warrant and located 1.3 kilograms of cannabis leaf in a plastic bag and a further 8.1 kilograms of cannabis leaf in a cardboard box in the car.

7. One further offence was also taken into account on a Form 1:

1. supply 2kg of a prohibited drug (cannabis leaf), in contravention of s 25(1) of the Drug Misuse and Trafficking Act.

Count 3

8. The subject matter of count 3 was that on 18 November 2015, the police executed a search warrant at the Eastwood house and found 91 cannabis plants being grown by enhanced indoor means in four rooms as well as other related items. Of those 91 plants, 33 plants were about one metre high.

9. A further six offences were taken into account on a Form 1:

1. knowingly directing activities of a criminal group under s 93T(4A) of the Crimes Act;

2. using electricity without authority under s 64(1) of the Electricity Supply Act 1985 1995 (CthNSW); and

3. four charges of cultivate prohibited plants by enhanced means for a commercial purpose under s 23(1A)(b) of the Drug Misuse and Trafficking Act (for 3 separate periods in 2015 at the Eastwood premises and for most of 2015 at the North Parramatta premises).

10. On 5 July 2017, the sentencing judge sentenced the applicant together with three co-offenders, Mr Pham, Mr Vu and Mr Nguyen.

11. The applicant was sentenced to an aggregate sentence of imprisonment for 8 years. A non-parole period of 4 years was fixed to commence on 18 November 2015 and expire on 17 November 2019. The indicative sentences identified by the sentencing judge were:

1. count 1 – 5 years, 6 months imprisonment;

2. count 2 – 1 year, 9 months imprisonment; and

3. count 3 – 5 years, 6 months imprisonment.

12. On 22 March 2018, the applicant filed a notice of application for leave to appeal.

Remarks on sentence

13. After setting out the factual background that gave rise to the charges, the sentencing judge made findings about the four offenders. (at ROS16)

14. His Honour found that each of the four offenders were part of a syndicate and each knew that the other three were members of the syndicate that cultivated cannabis for sale. There were other members of the syndicate including a co-offender, Ms Cao, who is the ex-wife of Mr Nguyen.

15. The sentencing judge found that the applicant undertook the role of co-ordinating some of the syndicate’s activities including negotiating sale prices for cannabis cultivated by the other members of the syndicate. That process involved negotiations with a number of wholesale buyers and meeting with those buyers. The applicant also told the others about the procedures to be followed in the cultivation of the cannabis. The applicant also directed aspects of distribution and sale of the cannabis.

16. Based on intercepted telephone calls, his Honour inferred that the applicant reported the activity of the syndicate to a person described in the calls as “Tung”.

17. The sentencing judge found that the applicant was responsible for dealing with the money obtained from the sale of cannabis grown by members of the syndicate. These proceeds were substantial as the cannabis crops at the houses had a growth cycle of between six and eight weeks between harvests.

18. The sentencing judge found that financial proceeds of the crime derived by the syndicate from the sale of cannabis were very substantial and the syndicate members each received a substantial distribution.

19. The sentencing judge found that the total amount of cannabis plants cultivated by the syndicate was not known, but that the intercepted telephone calls between Messrs Pham and Nguyen provided evidence of unexplained cash wealth and the commercial context of the criminal enterprise.

20. The sentencing judge then went on to consider the subjective features and criminality of each offender individually. His Honour noted that the Court proposed to extend leniency because of prior good character in all four cases (ROS19). Before dealing with each offender individually, his Honour noted that no one offence was treated as an isolated aberration because of the other offences and matters on the relevant Form 1. The sentencing judge said at ROS19:

“…In connection with each offence the Court is satisfied beyond a reasonable doubt that, at the time of their respective participation, each Offender was participating in a criminal group or syndicate and each knew he or she was enmeshing himself or herself in organised criminal activity and that their involvement in each offence was premeditated. The extent to which each Offender participated or enmeshed themselves in the syndicate varied. It is clear that others were involved in the syndicate.”

21. The balance of the summary of the remarks on sentence relates only to the applicant and to the offender the subject of ground 2 of the appeal, Mr Vu.

The applicant (from ROS38)

22. The applicant was 32 at the time of sentencing. She grew up with her grandparents after her parents separated when she was 14 years old. The applicant claimed that her mother had a substantial gambling problem for much of her adult life and that this was the cause of her parent’s marriage breakdown and resulted in the loss of the family home and bankruptcies. The sentencing judge found that “[c]learly…she experienced considerable difficulties during her early life because of financial problems created by her mother’s gambling. However, there is no evidence that her upbringing lacked moral guidance”. Accordingly, the sentencing judge was not satisfied that she had the disadvantage of a dysfunctional upbringing.

23. The applicant suffered from anxiety about being caught and a psychologist indicated that she suffered “…severe levels of anxiety and depression”. However, the sentencing judge noted that there was no evidence before him that the applicant was suffering from any mental health issues when she became involved in the offences. The sentencing judge found that her current state of mental health will make her time in custody “more burdensome”.

24. The sentencing judge found that the applicant’s mother’s debts “explains but does not excuse her offending behaviour”. His Honour was satisfied that the applicant became involved in these offences because of an intention to repay her mother’s debts, rather than because of greed.

25. In assessing the criminality of the applicant, the sentencing judge characterised her role as “some sort of mid management role that involved a level of trust and responsibility within the syndicate that was higher than the other three before the Court”. (Ros40) His Honour found that the applicant’s role included coordination, selling and negotiations connected with selling cannabis, handling large sums of money, distribution of money to other members of the syndicate, some supervision of others and providing advice to others.

26. In relation to count 1 (cultivation of cannabis at the Chipping Norton premises), the sentencing judge found that the applicant’s criminality was “at the very upper end of the lower range”. In relation to count 2 (supplying 9.4 kilograms of cannabis), the sentencing judge found this offence “is around the middle of the low range”. In relation to count 3 (cultivation of cannabis at the Eastwood premises), the sentencing judge found that her criminality was “within the midrange”.

27. The sentencing judge was satisfied that the applicant’s prospects of rehabilitation and of not reoffending were good. The sentencing judge discounted the applicant’s sentence by “about” 25 per cent to reflect the utility of the early guilty pleas.

28. The indicative sentences pursuant to s 53A(2)(b) were count 1 (5 years, 6 months); count 2 (21 months) and count 3 (5 years, 6 months).

Mr Vu (ROS33)

29. Mr Vu was 41 at the time of sentencing. He is not related to the applicant. There was no evidence that he had experienced a dysfunctional upbringing. He was educated in Vietnam and came to Australia on an international student visa in 1996. He told a psychologist his visa was revoked when he was caught working, but he remained in Australia and maintained a sound work history until his arrest. There was no evidence that Mr Vu suffered from any mental health issues or an intellectual disability or that his time in custody would be unusually burdensome. The sentencing judge was satisfied beyond a reasonable doubt that Mr Vu’s involvement was motivated by greed (ROS35).

30. In relation to count 1 (cultivation of cannabis plants at the Eastwood house), the sentencing judge found it to be “a tad below the midrange”. (ROS36). In relation to count 2 (cultivation of 143 cannabis plants at the North Parramatta premises), the sentencing judge found it to be “midrange” (ROS37). The sentencing judge explained Mr Vu’s role in the syndicate in these terms:

“His role was tending the plants and harvesting them. Obviously if involved in harvesting, he would in some way be involved in handling what was harvested. There is no evidence that he handled any money or was directly involved in selling the harvested cannabis. Apart from decisions made in connection with the cultivation at the two houses, there is no evidence he had any managerial, organisational, coordinating or supervising role within the syndicate. Of these four, he is probably lowest placed within the syndicate, but was involved in it for about 12 months.”

31. The sentencing judge was satisfied that Mr Vu’s prospects of rehabilitation were good.

32. Mr Vu was sentenced to a period of imprisonment of 5 years with a non- parole period of 2 years and 8 months. The indicative sentences were 3 years (count 1) and 3 years, 9 months (count 2).

Grounds of appeal

33. In her application for leave to appeal filed on 22 March 2018, the applicant advanced three grounds of appeal:

1. the sentencing judge erred in his approach to the applicant’s indicative sentences leading to an excessive aggregate sentence;

2. the applicant suffers a justifiable sense of grievance when comparing the sentence imposed upon the co-offender Mr Vu to the sentence imposed upon her; and

3. the applicant’s sentence is manifestly excessive.

The applicant’s submissions

Ground 1 – the sentencing judge erred in his approach to the applicant’s indicative sentences leading to an excessive aggregate sentence

34. The applicant submitted that the sentencing judge erred when he stated the same indicative sentences for counts 1 and 3. It was submitted that whilst the sentencing judge gave some consideration to the offences on the Form 1 documents, his Honour did not have sufficient regard as to how they should affect the indicative sentences for the principal offences.

35. The applicant submitted that an erroneous approach in the indication of the sentence that would have been imposed for an individual offence may reveal error in the aggregate sentence reached: R v Brown [2012] NSWCCA 199 at [17]. It followed, the applicant submitted, that because there were significant differences between each offence that should have led to different indicative sentences.

36. The applicant argued that a distinction should have properly been drawn between the Form 1 offences attaching to count 1 and those attaching to count 3. The applicant submitted (at [33]-[34]):

“…While numerical comparison of the number of offences on each Form 1 was of limited utility there were broad differences:

a. Overall there are 3 fewer offences attaching to count 1.

b. Count 1 had 1 offence contrary to s 23(1A) of the DMTA, whereas count 3 has 4 instances of that offences.

c. Count 1 had 2 proceeds of crime offences.

d. Count 3 had an offence contrary to s 64(1) of the Electricity Supply Act.

Secondly, count 1 was objectively less serious than count 3.

a. The sentencing judge found that count 1 was “at the very upper end of the lower range”, whereas count 3 was “within the midrange”.

b. Unlike count 3 and the Eastwood premises, the applicant was not the lessee of the premises relating to count 1, and therefore her role was not found to be crucial as it was in respect of count 3.”

37. It was submitted that the identical indicative sentences between counts 1 and 3 was suggestive of error. Specifically, the applicant submitted that the distinct findings as to the objective seriousness in respect of counts 1 and 3 were given insufficient regard by the sentencing judge in determining the relevant indicative sentences for those offences.

38. The applicant relied upon JIRS statistics for offences contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW), for which there is data from 57 cases. In those matters, 54 offenders pleaded guilty and 33 received a penalty of full time imprisonment. Of those offenders who received a sentence of imprisonment, when the “principal offence” is considered alone, the applicant says the following information is available: 32 offenders received a lesser term of sentence for the “principal offence only” than that “received” by the applicant as an indicative sentence for count 1.

39. It was submitted that a lesser indicative sentence for count 1 was required, and by extension the Court should exercise its sentencing discretion and re-sentence the applicant by way of an aggregate sentence, in a manner that takes into account an indicative sentence for count 1 that is not infected by error.

Consideration of ground 1

40. Count 1 was an offence of knowingly taking part in the cultivation of 105 cannabis plants at the Chipping Norton house. This was found to be at “the very upper end of the lower range”. Count 3 was an offence of cultivating 91 cannabis plants at the Eastwood house where the applicant was the lessee. This offence was within the “midrange”. Neither finding is challenged by the applicant.

41. The applicant’s point is rather that there is a difference between an offence at “the very upper end of the lower range” and one in the “midrange” so that the Court should conclude that the fact that the same indicative sentence was imposed for each offence bespeaks an error of principle.

42. That submission should not be accepted. In this case the Form 1 offences provide a cogent explanation and a sufficient justification for the course the sentencing judge took.

43. Each of the Form 1 matters was serious. It was open to the sentencing judge, however, to regard the different, and serious, nature of the criminality involved in the proceeds of crime offences as distinguishing the cases such that the appropriate indicative sentence for count 1 should be the same as the appropriate indicative sentence for count 3, despite the slight difference in finding about the objective seriousness of the offences the subject of counts 1 and 3 themselves.

44. The sentencing judge carefully set out the facts which were applicable to each of the offences, and made a separate assessment of the seriousness of the offending, before expressly referring to the Form 1 matters. This approach was not a “blanket” approach of the kind criticised by R A Hulme J in R v Nykolyn [2012] NSWCCA 219 at [57]. In that case the sentencing judge had simply said “I am imposing an aggregate sentence. In my opinion each of these four offences is of similar seriousness and each would warrant, taking into account the discount for early plea, a sentence of four years imprisonment…”. In the present case, the sentencing judge set out, in over 50 pages, his detailed findings about the matters relevant to sentence. He identified in detail his reasoning process for the aggregate sentence ultimately imposed on the applicant, including the finding of special circumstances so that the statutory ratio became only 50 per cent in the applicant’s case. Unlike Nykolyn it was not suggested in the present case that the sentencing judge failed to have regard to the Form 1 matters. That was the correct approach as plainly he did.

45. The applicant’s reliance upon JIRS statistics for offences contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW), takes the matter no further. A comparison between JIRS statistics for sentences of imprisonment in cases limited to ones where s 23(2)(a) of the Drug Misuse and Trafficking Act is the “principal offence” and the present indicative sentence for an offence to which a number of serious Form 1 offences attach, and in the context of three serious counts on an indictment being considered together, is of little, if any assistance. Shorty put, such a comparison is apt to mislead.

46. This is not a case where the determination by the sentencing judge of the same period of indicative sentences in counts 1 and 3 indicates that some error of principle has been made in fixing the aggregate sentence of 8 years or the non-parole period of 4 years. The sentencing judge, having conducted the required instinctive synthesis in relation to two counts on the indictment, with different Form 1 offences attached to each, which yielded the same indicative sentences, was not required to create an artificial distinction between the counts by the addition or subtraction of weeks or months merely to demonstrate a difference that his Honour did not perceive, lest there be error in the fixing of the aggregate sentence. At least one purpose of aggregate sentencing is to obviate the need to engage in the laborious and sometimes complicated task of creating a “cascading or ‘stairway’ sentencing structure” when the principle of totality requires, as in this case, some accumulation of sentences: JM v R [2014] NSWCCA 297 at [39] per R A Hulme J, with whom Hoeben CJ at CL and Adamson J agreed. The sentencing judge here turned his mind to the relevant issues and, having taken them into account, came to the same indicative sentence for each of grounds 1 and 3. No error of principle is demonstrated.

47. Ground 1 should be dismissed.

Ground 2 – the applicant suffers a justifiable sense of grievance when comparing the sentence imposed upon the co-offender Mr Vu to the sentence imposed on her

48. The applicant’s aggregate sentence was longer than Mr Vu’s. The applicant received a longer non-parole period than Mr Vu; 4 years as compared to 2 years and 8 months. Taking into account the additional term imposed, the applicant’s sentence was 3 years longer than Mr Vu’s; 8 years as compared to 5 years. The applicant submitted that the sentencing judge failed to address the principle of parity correctly. Had the sentencing judge done so, the sentences of the applicant and Mr Vu would have been “less disparate”.

49. The applicant submitted that the principle of parity requires identity of outcome in cases that are relevantly identical and different outcomes in cases that are different in some respect, per Wong v The Queen (2001) 207 CLR 584 at [65]. All component parts of the sentence must be compared, not just the head sentence: Postiglione v The Queen (1997) 189 CLR 295 at 302.

50. The applicant submitted that on a parity point, a comparison of indicative sentences between co-offenders may be made: Miles v R [017] NSWCCA 266 at [60] per Rothman J and at [67] per Hamill J; Kremissis v R [2016] NSWCCA 257 at [122] (Button J, Hoeben CJ at CL and Adams J agreeing); Thangavelautham v R [2016] NSWCCA 141 at [70]-[78].

51. The errors said to have been made by the sentencing judge were as follows:

1. In relation to the offences of cultivation of a commercial quantity of cannabis plants by advanced indoor means at the Eastwood premises, the applicant accepted that there were relevant differences in the criminality between her and Mr Vu. However, she submitted that there were a number of other factors which ought to have operated in the applicant’s favour. These included that the applicant’s motivation for committing the offence was to pay off her mother’s substantial gambling debts, whereas Mr Vu’s was motivated by greed (ROS 43), that the applicant had no prior convictions, while Mr Vu did and the applicant’s time in custody will be more burdensome than Mr Vu’s (ROS39). Against the background that the number of plants cultivated was the same, their involvmentinvolvement in tending to the plants was the same, their prospects of rehabilitation and likelihood of reoffending were the same and the discounts they received for their pleas were the same, the applicant submitted that the discrepancy of 2 years and 6 months between the indicative sentences was not justified;

2. In relation to the cultivation by enhanced indoor means at the Chipping Norton premises, the applicant received an indicative sentence of 1 year and 9 months longer than Mr Vu’s. The applicant submitted that there are three factors that suggest this was inappropriate. First, Mr Vu had 2 more offences to be taken into account on a Form 1. Secondly, the number of plants found in respect of Mr Vu’s indictment was 2.8 times the commercial quantity. The applicant’s was just over two times the commercial quantity. Thirdly, the motivations of each offender were different, their criminal histories were different, and time in custody will be a more burdensome experience for the applicant than it will be for Mr Vu.

52. The applicant submitted that the disparity of the sentences for Mr Vu and the applicant demonstrate a failure by the judge to properly consider and give effect to the principles of parity. This gives rise to a justifiable sense of grievance on the part of the applicant that should be rectified by this Court.

Consideration of ground 2

53. The principles applicable to the determination of a ground asserting a justifiable sense of grievance by reason of disparity of sentence between co-offenders were recently summarised by Beech-Jones J (with whom Fagan J and I agreed) in Wan v R [2017] NSWCCA 261:

[39] The reference in this ground of appeal to a “justifiable sense of grievance” invokes the discussion of the parity principle in Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 610 (per Gibbs CJ), at 613 (per Mason J) and at 623 (per Dawson J, “Lowe”). The parity principle holds that there should not be a “marked disparity” between the sentences imposed on co-offenders such as to give rise to “a justifiable sense of grievance” in one of them (Lowe at 610 per Gibbs CJ, with whom Wilson J agreed at 616 and at 612 to 613 per Mason J and at 623 per Dawson J). The parity principle has its foundation in the obligation of the Courts to afford “equal justice” (Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] per French CJ, Crennan and Kiefel JJ, “Green”).

[40] Two aspects of the parity principle are of relevance to this application. First, the principle is not just concerned with identical outcomes in cases that “are relevantly identical”. It also seeks “different outcomes in cases that are different in some relevant respect” (Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at 608 per Gaudron, Gummow and Hayne JJ, “Wong”). …...

[41] Second, the application of the parity principle is not excluded by the circumstance that participants in a criminal enterprise are charged with different offences. The application of the principle is governed “by considerations of substance rather than form” (Green at [30]). Nevertheless, the “greater the differences between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the [applicant]” (Green at [30]). ….

[42] In DS v R [2014] NSWCCA 267 at [39] the Court (Bathurst CJ, Fullerton and Davies JJ) described the approach to be adopted as follows:

“The sense of grievance complained of when the sentence for one offender is compared relative to that of a co-offender or co-offenders, is to be assessed objectively governed by considerations of substance rather than form. It is only triggered where differences in the sentences imposed on co-offenders is disproportionate to relevant distinctions in the role each played in the commission of the offence (even if the roles might be differently described or involve different conduct) and in an offender's subjective circumstances. There are necessarily degrees of both similarity and difference in the criminal conduct of co-offenders and in their subjective circumstances. In some cases this requires that different sentences be imposed. However, it is only where the discrepancy between sentences is not reasonably explained by the degree of difference between co-offenders and their offending that the disparity is such that appellate intervention is required. For there to be a justifiable sense of grievance, the disparity must be ’gross’, ’marked’ or ’glaring’…..”

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

“[58] Finally, it should be understood that considerable obstacles are faced by an applicant seeking to invoke the parity principle in circumstances where the sentencing judge was fully aware of sentences imposed upon a co-offender, and the reasons for those sentences, and indicates in the sentencing remarks why the judge is departing from the co-offender’s sentences…”

55. The relevant comparison of indicative sentences here is between one of 5 years and 6 months (for the applicant – count 3) and 3 years for Mr Vu (his count 1) in respect of the cultivation of a large number of cannabis plants at Eastwood, albeit during different cultivation cycles.

56. This case raises quite different issues to the careful and qualified comparison of indicative sentences which the Chief Justice (with whom Hoeben CJ at CL agreed) explained was permissible when considering parity in Thangavelautham v R 2016] NSWCCA 141 at [70]-[78]. The indicative sentences imposed may be a guide to whether the aggregate sentence is excessive, but it is the aggregate sentences which must ultimately be compared.

57. In this case there are many significant differences between the applicant and Mr Vu identified by the sentencing judge in his remarks. The applicant was being sentenced for three offences on indictment with a total of 10 offences on Form 1 documents. Mr Vu was being sentenced for two offences on indictment with a total of six offences on Form 1 documents. The applicant was the lessee of the Eastwood house which was the place where the enhanced cultivation of cannabis the subject of the comparison counts occurred. The applicant’s offending in the Eastwood house started earlier and continued for a longer period. The applicant, but not Mr Vu, was involved in selling cannabis leaf, the product of the cultivation offences.

58. An additional, and critical, difference between the offenders was that Mr Vu had no managerial role within the syndicate but the sentencing judge’s unchallenged finding was that the applicant filled a mid-management role that “involved a higher level of trust and responsibility within the syndicate” than the others, including Mr Vu. The sentencing judge’s findings in relation to the co-offender Mr Vu set out at [30] above are noteworthy. Of the four offenders, “he is probably lowest placed within the syndicate”; the applicant was the highest placed in the syndicate of the four.

59. In Green v The Queen (2011) 244 CLR 463; [2011] HCA 49, French CJ, Crennan and Kiefel JJ explained at [31] “…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”.

60. This is a case where “the part each has played in the relevant criminal conduct or enterprise” is important. The significant difference in the roles the applicant played in the syndicate on the one hand, and Mr Vu played on the other justified the different aggregate sentences that were imposed.

61. There was no error, even confining attention to the comparison of the two indicative sentences addressed above. The sentencing judge found that all of the offenders knowingly took part in organised criminal activity (ROS 19) and that the financial proceedings were “very substantial” (ROS18). It was the applicant (and not Mr Vu) who distributed the money obtained from the sale of cannabis grown by members of the syndicate.

62. The sentencing judge did not err in imposing, in the same proceedings, a lower aggregate sentence on Mr Vu than that imposed on the applicant. The sentencing judge considered the respective roles of the co-offender Mr Vu and of the applicant in the criminal organisation as well as their subjective circumstances. All of the applicant’s favourable subjective circumstances referred to on this appeal were appropriately taken into account, especially in the making of a finding of special circumstances and the application of a 50 per cent ratio between the non-parole period and the additional term. How those matters manifested themselves in the ultimate sentences imposed was a matter for the assessment and discretion of the sentencing judge: Petrovski v R [2017] NSWCCA 309 at [74]-[81]. The sentences imposed were not disproportionate to relevant distinctions in the role each played in the commission of the offence.

63. This is a case where the differences in the indicative sentence are reasonably explained by the degree of difference between the role of the co-offenders in the syndicate and the nature of their respective offending conduct. The disparity in the sentences imposed was justified by those differences and no error has been shown in the sentencing judge’s decision.

64. Ground 2 should be rejected.

Ground 3 – the applicant’s sentence was manifestly excessive

65. The applicant submitted that the following factors are relevant in demonstrating the manifest excessiveness of the sentence imposed by the sentencing judge. The applicant had no prior convictions; she was not the principal in the syndicate hierarchy; she had good prospects for rehabilitation and was unlikely to re-offend; her time in custody was more burdensome owing to her anxiety and depression and her motivation for offending was to pay for her mother’s substantial gambling debts. The applicant also submitted that the appropriate starting point for the indicative sentences in respect of counts 1 and 3 should have been lower, even prior to a 25 per cent discount for a plea of guilty being applied (at [63]).

66. The applicant outlined cases which she said are comparable. The applicant submitted that, even if this Court does not accept that the non-parole period was manifestly excessive, the balance of term of 4 years is manifestly excessive. She submitted that a different sentence with a shorter balance of term is warranted (at [67]).

Consideration of ground 3

67. In Hughes v R [2018] NSWCCA 2, I cited what this Court had said in Obeid v R [2017] NSWCCA 221 (R A Hulme J, Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) at [443]:

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:

(i)   appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

(ii)    intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;

(iii)   it is not to the point that this Court might have exercised the sentencing discretion differently;

(iv)   there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

(v)   it is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

68. Whilst potentially comparable cases may provide the Court with guidance and a useful yardstick, their limitations must be recognised: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45; 242 CLR 520 at [54]. What is important in sentencing is consistency in principle, rather than numerical equivalence: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2. The cases relied upon by the applicant here are quite different to the present case and do not demonstrate error on the part of the sentencing judge:

1. Crowley v R [2017] NSWCCA 99 involved one offence only. In Crowley 128 plants were involved. A non-parole period of 2 years with an additional term of 12 months was held not to be manifestly excessive. The real issue in that case was whether the applicant had cultivated the plants for his own consumption. That claim was rejected. Crowley does not provide any real assistance as a comparator with the present case;

2. Portolesi v R [2012] NSWCCA 157 is a case a little closer to the present. Portolesi involved cultivation of 197 plants and the supply of 3.37kg of cannabis leaf. A combined non-parole period of 4 years and an additional term of 1 year and 6 months was found not to be manifestly excessive. Portolesi was obviously a much less serious case than the present. The comparison afforded by that case tends against the applicant’s contention that the sentence imposed on her was manifestly excessive;

3. Andreata v R [2015] NSWCCA 239 involved the cultivation of a commercial quantity of cannabis plants (found to be 50 plants on appeal) and the supply of 2.45 kg of cannabis leaf. The role of the offender was described as “limited”. The sentences imposed were 12 months on the supply charge and a non-parole period of 18 months with an 18 month additional term on the cultivation charge. There was a degree of accumulation, of 3 months, between the two sentences. The smaller number of counts, the much smaller number of plants and the additional matters affecting the applicant here mean that Andreata is of only limited assistance to the applicant in this case;

4. Tan v R [2013] NSWCCA 164 involved the cultivation of 53 cannabis plants by enhanced means. On appeal, a non-parole period of 2 years and 2 months was imposed with a balance of term of 10 months. Given the very substantial differences from the present case, which involves more counts and more serious offending, Tan provides little assistance as a relevant comparable sentence;

5. Nguyen v R [2012] NSWCCA 42 involved one count of the cultivation of 157 plants. Mr Nguyen was sentenced to a non-parole period of 3 years with an additional term of 2 years and 3 months. That was a much less serious case than the present. The comparison afforded by Nguyen tends against the applicant’s contention that the sentence imposed here was manifestly excessive;

6. Wei v R [2015] NSWCCA 66 involved one count of cultivation and 2 matters on a Form 1, being deemed supply and consume electricity without authority. Mr Wei was sentenced to a non-parole period of 1 year and 6 months with an additional term of 1 year and 1 month. Mr Wei was found to be a “gardener” being used as a “pawn” by those in control of the operation. Wei is a much less serious case than the present and provides little assistance.

69. It will be recalled that the applicant pleaded guilty to 3 counts, each involving significant Form 1 matters. Unlike any of the suggested comparable cases she was involved in significant cultivation activities at 2 separate premises and had significant cultivation activities at 2 further premises taken into account as Form 1 matters. The amount of cannabis involved in her supply charge was larger, by a considerable extent, than in any of the “comparable” cases. Significant counts of knowingly dealing with the proceeds of crime were dealt with as Form 1 matters.

70. The circumstances of the offending conduct in each of the cases said to be comparable was less serious than that involved in the present case, both in terms of the number of offences, the scale of the overall operation, and (with the exception of Tan which is of little relevance for other reasons) the role of the applicant. The criminality engaged in by the applicant was serious and recognised as such by the sentencing judge. To the extent that assistance can be derived from the comparison cases, Portolesi and Nguyen provide the closest comparisons, although each involved less serious conduct than the applicant’s conduct here. Those cases tend clearly against the submission that the sentence imposed here was manifestly excessive.

71. So far as the non-parole period imposed of 4 years is concerned, I am comfortably satisfied that it fell within the discretion afforded to the sentencing judge. The additional term of 4 years, whilst a stern sentence, did not fall outside the range of permissible sentences for the conduct encompassed in the applicant’s pleas of guilty in this case.

72. This is not a case where intervention by this Court is warranted on the basis that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. The aggregate sentence imposed was not manifestly excessive.

73. Ground 3 should be dismissed.

Conclusion and orders

74. For the foregoing reasons I would propose the following orders:

1. leave to appeal against sentence granted;

2. appeal dismissed.

75. JOHNSON J: I have had the advantage of considering the judgment of Payne JA. I agree with the orders proposed by his Honour and with his Honour’s reasons subject to what follows.

76. I would not characterise the total aggregate term of eight years’ imprisonment as “stern” (see [71] above). The applicant was an important participant in a substantial organised criminal syndicate devoted to the cultivation and supply of cannabis. Amongst other things, the applicant co-ordinated activities, negotiated sale prices, instructed co-offenders concerning the cultivation of cannabis and directed aspects of distribution and sale of the drug. She was the tenant of one of the premises used for cultivation and played a hands-on role transporting cannabis with respect to Count 2.

77. The applicant’s offending extended to four separate residential dwellings in Eastwood, North Parramatta, Chipping Norton and Carlingford. Rather than these properties being used to house families and other members of the community, each was devoted wholly to the cultivation of a drug crop. This process involved the substantial unlawful diversion of another valuable community service – electricity. In these additional ways which are specific to this class of offending, the applicant’s offences served to harm the community: s.3A(g) Crimes (Sentencing Procedure) Act 1999.

78. The aggregate sentence imposed by the sentencing Judge for the applicant’s several serious offences (and Form 1 offences) fell more than comfortably within the range of available sentences for criminality of this type.

79. ADAMSON J: Save for one matter, I agree with the reasons of Payne JA and with the orders proposed by his Honour. While Payne JA has expressed the additional term of 4 years as being a “stern sentence”, I would prefer not to express an opinion on its relative length.

Amendments

25 June 2018 - 25 June 2018: Head note and paragraphs [14], [29], [50], [68] amended to correct typographical errors. Paragraph [59] amended to insert the words "...is justified by differences...".

Decision last updated: 25 June 2018