Bui v R

COUNSEL: G. Wendler (Applicant) N. Norman (Crown)

SOLICITORS: AKN and Associates (Applicant) Solicitor for Public Prosecutions

IN THE COURT OF CRIMINAL APPEAL 2007/11465

McCLELLAN CJ at CL HOWIE J HISLOP J

Thursday 18 December 2008 VAN PHINH BUI v R Judgment 1 McCLELLAN CJ at CL: I agree with Hislop J. 2 HOWIE J: I agree with Hislop J. 3 HISLOP J: The applicant pleaded guilty in the District Court to an indictment in the following terms: "[The applicant] on 15 March 2007 at Bradbury in the State of New South Wales cultivated a prohibited plant, namely cannabis plant, cultivated by enhanced indoor means, being a quantity of 281 plants, which is not less than the large commercial quantity applicable to cannabis plant cultivated by enhanced indoor means." 4 The applicant was convicted and sentenced on 7 February 2008 in respect of that offence to a non parole period of imprisonment of three years to date from 15 March 2007 and conclude on 14 March 2010 with a further parole period of two years to date from 15 March 2010 and conclude on 14 March 2012. In sentencing the applicant, the sentencing judge took into account on a Form 1 an offence of possessing a prohibited drug, namely 168 grams of cannabis leaf. 5 The applicant has sought leave to appeal against sentence. The grounds of appeal are:

(1) The sentencing judge erred in law by proceeding to sentence the applicant for an offence contrary to s 23(2)(a) of the Crimes Act when there was no such offence.

(2) The sentencing judge erred by finding: the amount of cannabis was capable of continuing to fuel the addiction of addicts in the community and introduce new addicts to the [sic] addiction with consequential serious harmful effects.

(3) The sentence was manifestly excessive. 6 The facts of the offence were set out by the sentencing judge in his remarks on sentence as follows: "On 15 March 2007 at approximately 10.15 am police arrived at the residential premises at [Bradbury] in order to execute a lawfully obtained search warrant. At that time the offender owned the premises. Police knocked on the front door of the residence on three occasions and after receiving no answer forced entry into the premises. There was no person or persons at home at the time. The police then conducted a physical search of the premises. The residence is described as being a two storey brick home with four large bedrooms, a small bathroom, lounge room and large kitchen dining room. A large garage and further two rooms are located on the ground floor. Off one of the rooms on the ground floor police noticed excavations had been made into the foundations of the house to create another area or room that could be accessed by a person bent at the waist. A small room was also located off this excavated area. The police commenced the search of the kitchen and dining room. In the freezer police located the following large plastic bag containing 168 grams of cannabis, approximately 450 seed starters were located in a cardboard box in the pantry. Also in the pantry police located seventy cannabis seedlings, which were approximately six inches high growing in a plastic container under a fluorescent light. Police also observed a length of industrial ducting connecting the lower ground level with a ceiling behind some home made timber panels in the corner of the dining room. Police searched bedroom one and observed a double bed that appeared to be recently occupied and numerous items of male clothing and containing various personal items of the offender. In bedroom two police located twenty-eight cannabis plants, which were approximately 1.2 metres high in black pots with soil. Eight lampshades with large wattage globes attached were suspended above the cannabis plants and the light globes were on. Police observed that there were electrical leads running from the lampshades to beneath the floor of the excavation room connected to eight transformer boxes. There were also two electric fans placed in opposite corners of the room. White plastic sheeting had been placed over the bedroom window and nailed down. White plastic sheeting had also been placed on the floor beneath the plants. Police observed that all twenty-eight cannabis plants were healthy and appeared to be well cared for, recent water being applied to each pot. Police observed that bedroom three was empty, although it had a built in wardrobe against one wall. Police noted that the floor of the built in wardrobe had been converted to a trap door and that a stepladder through the trap door allowed access to lower rooms beneath the house. Police also observed black industrial ducting from the floor to the filters in the roof. During the search of bedroom four, police located thirty cannabis plants, which were approximately 1.2 metres high in black pots with soil. Eight lampshades with large wattage globes attached were suspended above the cannabis plants and the light globes were on. Police observed that there were electrical leads running from the lamp shades to a built in wardrobe in the corner of the room that was connected to eight transformer boxes. There are also two electric fans placed in opposite corners of the room. White plastic sheeting had been placed over the bedroom window and nailed down. White plastic sheeting had also been placed on the floor beneath the plants. Police observed that all thirty cannabis plants were healthy and appeared to be well cared for, recent water being applied to each pot. The toilet had been converted into a storage room and located amongst other items were one large black hundred litre container with water that contained an electric water pump and hand held water sprinkler with hose attached. Police also located two large four litre containers of fertiliser in the makeshift storage room. Police then commenced the search of the rooms on the ground floor. During the search of room one police located seventy-seven cannabis plants, which were approximately 600 millimetres high in black pots with soil. Sixteen lampshades with large wattage globes attached were suspended above the cannabis plants and the light globes were on. Police observed that there were electrical leads running from the lamp shade to the excavated room where they were connected to sixteen transformer boxes and also two electric fans placed in opposite corners of the room. White plastic sheeting had also been placed on the floor beneath the plants. Police observed that all seventy-seven cannabis plants were healthy and appeared to be well cared for and recent watering had taken place. Police also located a hundred litre water container, electric water pump and hand held hoses. Police then commenced searching the small enclave off room 1 on the lower ground floor and have located thirty times five kilograms of CO brand potting soil, electrical wiring, three litre containers of fertilisers, bottles of chemicals, including Super Grow, along with a tool box and several other electrical items such as light globes, electrical leads, water pumps and electrical timers. During the search of room two police located seventy-six cannabis plants approximately twelve inches tall in small black pots with soil. Three lampshades with large wattage globes attached were suspended above the cannabis plants and the light globes were on. Police observed that there were electrical leads running from the lampshades of that excavated room that connected to the three transformer boxes. Police observed that the walls and ceiling of this room had been lined with silver paper to reflect the heat and light from the lampshades. Police commenced searching the excavated area and located the eight transformer boxes connected to leads in bedroom two, the two transformer boxes connected to the lamp shades in lower ground floor room two and the two banks of fourteen power points connected to transformers. Also observed was a stepladder beneath the trap door in the roof leading to bedroom three. Police then searched the roof of the premises and located two large industrial sized charcoal filters in the roof connected to industrial air ducting leading it through the first floor to the lower ground floor via the dining room. Police also located three photographs depicting the offender in the roof cavity. During the course of the search warrant employees of Integral Energy Australia attended the premises and inspected the electrical wiring. They observed that the electricity had been redirected from the main. They saw power used upstairs in the house was going through the normal meter, however all other power used the hydroponic lights and the ground floor was redirected and coming through the underground service mains. In effect the premises were not metered or paying for their full electricity usage as a result of the bypass. At approximately 9.45 am on 23 March 2007 the offender attended Campbelltown Police Station with his solicitor and was placed under arrest. He declined to be interviewed in relation to the matter. He did consent to samples of his DNA being obtained. On 23 July 2007 Detective Leading Constable Watson received the fingerprint of palm impressions that had been previously lifted by crime scene [officers] from electronic transformers and the lampshades. The offender's fingerprints were identified on the electric transformers and several lampshades. The cannabis plants located at this cultivation had been grown using an enhanced indoor means, which aims to produce a number of harvests in a given year. Police estimate that based on the number of plants located in the cultivation, approximately ten to twenty pounds of cannabis head per harvest would be produced. There are 443 grams per pound of cannabis head and each pound of cannabis could be sold for approximately $3,000 to $3,300." 7 His Honour, in assessing objective criminality, described the operation as a sophisticated set-up to grow a number of cannabis plants. All the plants were healthy and well looked after. A great deal of time and money had been spent setting up the operation. The potential value of the harvest on the open market was considerable. The whole operation was for profit only, the offender not being an addict. His Honour stressed this was a serious objective offence involving an operation which was well organised and planned. His Honour stated that it was very important to send a message that such activities would be met with condign punishment. 8 As to subjective features, his Honour noted:

(a) The applicant was born in Vietnam in 1960 and came to Australia as a refugee in 1995 with his family, a wife and three children, according to the Probation and Parole report, which was adopted by the [applicant] as to factual matters. [He] completed his schooling at 16 years of age. He has very little English. His eldest son operates a bakery and he has been employed there for the past six years. His son told the Probation and Parole Service that he would re-employ his father at the conclusion of his sentence and assisted in paying off his debts. Debts through gambling are apparently the reason that the applicant got involved in the cultivation of cannabis to raise money to pay those debts.

(b) The applicant said in the witness box that he intended to seek help with his gambling problem whilst in prison and continue to seek counselling on his release.

(c) The applicant had no prior record of any relevance. The only matter on his record is a negligent driving charge.

(d) The applicant pleaded guilty at the first opportunity and will receive the full discount of 25 percent.

(e) There were special circumstances on the basis of the applicant's need for rehabilitation and the fact that it will be his first experience of prison.

Ground 1: The sentencing judge erred in law by proceeding to sentence the applicant for an offence contrary to s 23(2)(a) of the Crimes Act when there was no such offence 9 His Honour in his revised remarks on sentence said: "The offender is before me today for sentence following his plea to the offence of cultivate prohibited plants being not less than a large commercial quantity applicable to prohibited plants contrary to s 23(2)(a) of the Crimes Act . The maximum penalty for this offence is twenty years in prison. The number of plants seized was 281 cannabis plants. A large commercial quantity is defined as 200 plants." 10 Section 23(2)(a) of the Crimes Act is a procedural provision which concerns the defence of provocation in homicide. It discloses no offence as such. The applicant submitted he did not plead guilty to an offence under that section of the Crimes Act, that the District Court had no jurisdiction to sentence him for an offence pursuant to that provision and that the sentence imposed should be quashed for jurisdictional error and the matter remitted to the District Court for sentence. 11 There is no substance in this ground of appeal Obviously, the reference to a plea to an offence under s 23(2)(a) of the Crimes Act, in the remarks on sentence was a slip. It is quite apparent that his Honour should have referred to s 23(2)(a) of the Drug Misuse and Trafficking Act, 1985. 12 There is nothing to suggest any misunderstanding on his Honour's part as to the charge upon which he was sentencing the applicant. The maximum penalty was correctly stated. The applicant was arraigned on an indictment, the back sheet of which contained the numbered reference for the Drug Misuse and Trafficking Act [Act 226/1985], a reference to s 23(2)(a) and the current Law Code. His Honour's associate has recorded the conviction on this sheet which has been duly signed by his Honour. 13 The applicant pleaded guilty to an offence known to law on a valid indictment. There is no question of jurisdictional error, the charges being properly before his Honour. The inadvertent slip does not warrant referral back to the District Court to make the minor correction to the remarks on sentence. It is not an error of any substance and does not affect the conviction or the record of it.

Ground 2: The sentencing judge erred by finding: the amount of cannabis was capable of continuing to fuel the addiction of addicts in the community and introduce new addicts to the [sic] addiction with consequential harmful effects 14 His Honour in his remarks on sentence said: "The amount of cannabis was capable of continuing to fuel the addiction of addicts in the community and introduce new addicts to the addiction with consequential serious harmful effects." 15 The applicant submitted this finding "had the legal effect of creating an additional aggravating factor in the absence of any evidence that cannabis use leads to wide scale addiction. By this finding the sentencing judge effectively catalogued cannabis as a high range illegal drug alongside drugs such as heroin and cocaine…This finding inflated the objective seriousness of the offence moving his Honour to remark: 'that such activities will be met with condign punishment'." 16 There is no error in his Honour's remark. The court may assume that the Parliament has legislated against the use and supply of this drug because of its harmful and addictive nature. It is incorrect to suggest that his Honour's comment catalogued cannabis as a high range illegal drug alongside drugs such as heroin and cocaine. 17 As his Honour made clear, condign punishment was required because of the serious nature of the offence, committed purely for profit.

Ground 3: The sentence was manifestly excessive 18 The applicant submitted the discount (for the early plea) was titular in the sense the applicant ended up with a sentence devoid of any sentencing discount. The overall sentence of five years was too high having regard to the applicant's age, character and antecedents weighed against the applicant's objective level of criminality. 19 His Honour, in determining sentence, weighed the objective seriousness of the offence with the appellant's subjective factors. 20 A sentencing judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) informing the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies - Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [27]. 21 This Court will interfere with a sentence imposed in the court below only if it be shown that the sentencing judge was in error and then only if this court forms the positive opinion that some other, less severe, sentence is warranted in law and should have been passed - R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [79]. 22 In my opinion, error has not been established nor has it been established that some other sentence, less severe, is warranted in law and should have been passed. Accordingly, whilst I would grant leave to appeal, I would dismiss the appeal. 23 I propose the following orders:

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