Bui v The Queen [2015] VSCA 313

Court of Appeal (Vic)|2015-11-25|Before: Mr P, Redlich JA, Whelan JA

DPP v Bui [2015] VCC 474 (Judge McInerney)

CRIMINAL LAW - Sentence - Offence of cultivation of commercial quantity of cannabis L - Whether error in assessing gravity of offending and appellant's culpability - Applicant's disadvantaged background - Relevance of squandered opportunity as refugee - Whether manifestly excessive - Statistics and comparable cases considered - Application refused/Appeal dismissed.

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 On 23 April 2015 the applicant/appellant ('the appellant') was arraigned and pleaded guilty to one charge of cultivation of a narcotic plant, namely cannabis L, in a quantity that was not less than the commercial quantity applicable to that narcotic plant, and one charge of theft of electricity. The County Court judge heard a plea on the appellant's behalf and sentenced him that same day as follows:

Cultivation of narcotic plants - commercial quantity

6AAA Statement: 6 years 8 months' imprisonment with a non-parole period of 4 years 5 months.

Disposal Order pursuant to s 77 of the Confiscation Act 1997.
Compensation Order pursuant to s 86 of the Sentencing Act 1991.
Forensic Sample Order pursuant to s 464ZF(2) of the Crimes Act 1958.

2 The appellant sought leave to appeal his sentence on two proposed grounds. They are:

The learned sentencing judge erred in assessing the gravity of the offending, and the applicant's culpability, by:

(a) treating the applicant's reasons for the offending as irrelevant; and

(b) failing to take into account in mitigation the applicant's disadvantaged background.

The sentence on charge 1, and the total effective sentence, are manifestly excessive.

3 On 12 August 2015 the appellant was granted leave to appeal on proposed ground 1. The question of leave on proposed ground 2 was referred to the Court that would determine the appeal on proposed ground 1.

4 On Tuesday 21 October 2014 police attended at the appellant's address to execute a search warrant. A search conducted at the premises revealed a bathroom which had been modified to cultivate cannabis. The internal windows had been covered with heavy duty black plastic and the perimeters sealed with duct tape. There were 64 plants in the bathroom in various stages of maturity. The plants were supported by a drip-fed irrigation system with grow lights and shrouds. Another 30 cannabis plants of mature size were found in two further rooms. These plants were also supported by a drip-fed irrigation system with grow lights and shrouds. In total 94 cannabis plants were found with a total weight of 56.54 kg. The hydroponic system was powered through an electrical bypass. Electricity estimated to total $10,903.33 had been stolen through this device.

5 On the day of the search a record of interview was conducted with the appellant. He admitted that he had been cultivating cannabis and that he had cultivated about 90 plants or perhaps a bit less in three rooms in the house. When asked how he had paid for all the equipment, he initially said that he could not remember and then said that he had obtained some of it free and that he had perhaps spent $5,000 or $6,000. When asked what his intention was when the plants had finished growing he said:

I would - I would cut them up and then dry them up and then sell them. Yeah, people told me that once you harvest and sell them you can get the big - big money.

6 At the end of that answer he asked if he could give some extra information. The police officer said that they could talk about that later but the appellant continued on saying that what he wanted to do was to explain the reason why he did it. He then gave a long explanation. He said a person had asked to hire him for this kind of work but he had refused because, in substance, he was concerned that he would do the hard work and not be paid enough. He then said that his family had had no knowledge of what he was doing. He went on:

The reason why I did this because I - I - I thought that I can get some - some - some money by the end of the year and then I planned to go to Vietnam and maybe marry and buy another ... for the rest of my life.

... I knew, you know, it was wrong but I did it for to try and get some - some quick money and then I go back to Vietnam and marry and - and redo my life. That's - that's - my purpose.

8 He confirmed in the record of interview that he had committed a previous offence of a similar kind 10 years ago. He said that he was on Centrelink benefits. He was asked about what the police described as 'expensive things' at the house. He said he either did not know about them or that they belonged to his daughter. He referred to a 'brain injury' he suffered a long time ago when in Vietnam. He was asked how he had paid the $5,000 to $6,000 for the equipment and he initially said that he 'used MasterCard to pay for them'. When asked later how he had bought the equipment using MasterCard he said that he did not use the MasterCard but that he withdrew cash from a MasterCard and then used the cash to buy the equipment. He was asked about a wallet in the bedside table which was new and which contained a thousand dollars cash. He said the wallet was a present for his birthday and that the money was obtained from 'a friend'. He was asked about the car in the garage. He said it was his son's car and that his son had given it to him. He was asked about the electricity bypass and he said that 'the whole thing was set up by me'. He said that he had learnt to do that from other people. Finally, he was asked questions about another address that has no present relevance.

9 The prior conviction for similar activity approximately 10 years ago, which was referred to in the record of interview, was a matter dealt with in the Melbourne County Court on 17 December 2004. The appellant was convicted of trafficking cannabis and theft. He received a 12 month sentence of imprisonment which was suspended for 12 months and was placed on a community based order for 12 months with conditions requiring assessment and treatment for alcohol and drug addiction and for programmes to reduce reoffending.

10 In the course of the plea the prosecutor referred to this prior conviction. She said that there were striking similarities between the offending on that occasion and the offences for which he was to be sentenced. She said that on that occasion there had been three rooms in a house where 121 plants had been found growing. There had been an electricity bypass.

11 On 7 August 2008 the appellant had appeared before the Sunshine Magistrates' Court. On a charge of possession of heroin and dealing with property suspected of being the proceeds of crime he was dealt with without conviction by an adjournment of two years with a condition requiring him to continue to receive support and advice for alcohol abuse and with a condition requiring continued specified medical treatment. The adjourned bond on those matters concluded on 6 August 2010. The offending to which the appellant pleaded guilty on 23 April 2015 took place between 29 July 2014 and 21 October 2014.

Other relevant material before the sentencing judge

12 A letter from the Phat Quang Buddhist Temple in West Footscray was tendered. The letter indicated that the appellant had been a volunteer at the Temple for 10 years and that he was 'a very good man'. It referred to the fact that he was 'financially poor' and that he had 'many health problems'. It indicated that the Temple had given him free accommodation in return for the help he had given the Temple over the years.

13 Counsel on behalf of the appellant also tendered a report from the psychologist, Michael Crewdson. The report gave a detailed history, referred to the prior convictions, and referred to the appellant's shame in relation to the actions which constituted the offences. Mr Crewdson administered a number of tests. Among other things, Mr Crewdson concluded that there were 'some elements of post traumatic legacy' in his presentation related to an assault which he had suffered in Vietnam in 1988. Mr Crewdson also referred to a 'breakdown' he had experienced in 2002 when his father died and his marriage was dissolved. Mr Crewdson expressed the opinion that the appellant seemed to be a 'very psychologically naive, vulnerable person'.

14 Mr Crewdson's report is very detailed but it does not refer to the motivation to which some reference was made in the record of interview concerning a desire to return to Vietnam and 'maybe marry'.

15 The sentencing judge set out the appellant's personal circumstances and prior history. At the time of sentence he was 65 years old and had been in Australia for over 20 years. He had come to Australia as a refugee. His Honour observed:

As I said, Mr Bui has been a resident of this country for over 20 years. It is most unfortunate in my view that he has chosen to commit criminality of such a serious nature. This community has indeed been enlightened in many ways by the impact of the Vietnamese community.

It is unfortunate when we have before the Court, persons who choose, despite having attained refuge in this country [to] commit offences of this nature. I understand, given the circumstances, the distress that Mr Bui has faced and has suffered and his concern in the circumstances as to the impact of these offences, in particular upon his three children who are here in court to support him.[1]

16 The sentencing judge made reference to some of the answers given in the record of interview and referred to the decisions of this Court in DPP v Duong[2] and R v Pidoto and O'Dea.[3]

17 In the course of the plea counsel for the appellant had put to the sentencing judge the following as to the reason for the theft:

Well, the reasons for it, your Honour, his instructions to me, and what he's indicated in the record of interview, is that the purpose was to get money to go to Vietnam and get married. So in my submission, the need for the financial remuneration had an end; it wasn't an ongoing means, and it certainly wasn't the desire for a lavish lifestyle.

18 The sentencing judge quoted the answer in the record of interview in which the appellant had indicated that he intended to harvest the plants when they were fully grown so as to obtain 'the big - big money'.[4] In relation to the submission made that his motive for wanting to get that money, namely to go to Vietnam and get married, was a relevant mitigating consideration or a consideration reducing the impact of his financial motivation, the sentencing judge said:

It was suggested that I should discriminate in the profit motive from the fact that you were simply not gaining money and putting it in the bank or wherever criminals may nefariously put their proceeds, [but] doing it for the purpose of travelling to Vietnam and marrying your wife, marrying your prospective wife. I think in reality, it makes not the slightest difference given the seriousness of charge 1.[5]

19 The sentencing judge accepted submissions which had been put that the appellant had been somewhat isolated and that it was as a result of this isolation that he was looking for the possibility of starting another family. The sentencing judge observed that there was nothing that led him to disbelieve that circumstance but that he considered it to be not really relevant 'except as perhaps an explanation'.[6] The sentencing judge referred to the breakdown of the appellant's marriage and to the appellant's reaction and upset as a result.[7] He referred specifically to Mr Crewdson's report in relation to remorse.[8]

20 The sentencing judge referred to the appellant's age, the full admissions which had been made and the guilty plea.

21 In relation to ground 1, it was submitted on behalf of the appellant that the sentencing judge had committed an error by entirely discounting the reason put forward for the offending, namely the desire to travel to Vietnam and marry, or possibly marry, again. It was submitted that the sentencing judge had disregarded that consideration and that he had been wrong to do so. It was also submitted that the sentencing judge had failed to take account of the appellant's 'disadvantaged background'. He had come to Australia as a refugee with little English and his opportunities to gain employment had been limited. These disadvantages had persisted to the present day. Rather than seeing these disadvantages as a mitigating factor it was submitted that the sentencing judge had treated the appellant's refugee status as being a factor rendering the offending 'all the more regrettable' and as representing a 'squandered opportunity'. It was submitted that this approach was erroneous.

22 On behalf of the respondent it was submitted that it was clear on the material before the sentencing judge that the appellant's motivation was to make money. It was submitted that what was described as the 'background motivation' being the reason why he wished to make money was not a mitigating factor. It was submitted that there was no altruistic purpose and that the desire to travel overseas in order to pursue a relationship was not in itself mitigating. It was submitted that the sentencing judge's view that the motivation proffered did not reduce the seriousness of the offending was a conclusion that was open to him and that there was no error in that respect.

23 As to the appellant's personal history, it was submitted on behalf of the respondent that the sentencing judge had taken that into account. It had been fully set out in Mr Crewdson's report. It was submitted that the sentencing judge had not treated the appellant's refugee status as a matter adverse to him, but in any event it was submitted relying on R v Tran[9] that even if he had done so it was open to him to treat the matter in that way and there was no error in doing so.

24 In relation to the ground upon which leave to appeal has not been obtained, manifest excess, it was submitted on behalf of the appellant that the relevant Sentencing Advisory Council ('SAC') statistics reveal that the sentence imposed here was in the top 4.6% of sentences for the offence of cultivation of cannabis. Reference was made to comparable cases including the table of cases annexed to the 2010 case of Nguyen v The Queen[10] ('Nguyen 2010'). Counsel for the appellant noted that 'only one' sentence in that table was greater than the sentence here, that being R v Mason.[11] Reference was also made to a recent County Court sentence: DPP v Corbell ('Corbell').[12] It was submitted that the sentence imposed for the offence of cultivation of cannabis was at the 'top end of the range' and that in the circumstances this was clearly 'unwarranted'.

25 On behalf of the respondent it was submitted that the appellant was a principal, that the offence took place over a period of three months, that he had a history of prior very similar offending, and that there were no significant mitigating factors (such as Verdins[13] or youth). Reference was made to the SAC publication, Major Drug Offences - Current Sentencing Practices (March 2015). It was submitted that this offence fell within what has been described in that report as 'cluster 2' where the median term is three years' imprisonment and the longest term six years nine months. Reference was also made to the extract of case summaries in the Victorian Sentencing Manual and to the 2013 case of Nguyen v The Queen ('Nguyen 2013').[14]

26 Despite the maximum penalty for the offence being 25 years, the appellant was able to call upon comparable cases and a SAC report to advance an argument that current sentencing practice cannot accommodate the sentence imposed in this case. The appellant argued that that sentence was at the very top end of sentences for this offence and the Crown accepted that it was at the top end. The fact that there is a basis for such submissions may indicate that something has gone astray in current sentencing practice, at least in the case of offences that fall within the more serious category of the offence.

27 The limitations upon the proper use of statistics and sentences passed in other cases are well known. They can and should provide guidance and stand as a yardstick against which to examine a particular sentence,[15] but they are not to be regarded as some sort of 'benchmark'.[16] The prior cases which might assist are ones where the seriousness of the offending is comparable and, where relevant, there are comparable antecedents of the offender.[17]

28 To the extent that aggregate statistics can assist, the SAC publication, Major Drug Offences - Current Sentencing Practices, provides the most useful data in relation to sentences for this offence over the period 2008-9 to 2012-13. The particular offending in this case falls within what that report characterises as 'cluster 2'. Cluster 2 cases, amongst other things, are more likely to concern a principal as opposed to what is known in this context as a 'house sitter' or a person in some other ancillary role, are more likely to concern offending extending over a duration of three months or more, are more likely to involve offenders over 35 years of age, and are more likely to involve offenders with a prior history of offending.[18] The amount of plants involved does not vary significantly between cluster 1 and cluster 2. There are only two clusters for this offence. The SAC analysis, by reference to total effective sentence (not individual charges), reveals that imprisonment was imposed in 61% of cluster 2 cases. The terms of imprisonment ranged from six months to six years nine months. The median term was three years.

29 Turning to cases coming before this Court since 2007, sentences imposed for the offence of cultivating a commercial quantity of narcotic plants where the offender was a principal range from 15 months[19] (where the offender received a discount for agreeing to give evidence against a co-offender) to six years nine months.[20]

30 There are three particular cases that might be considered relevantly comparable since 2007.

31 In Latif, Niyazi & Azmi v The Queen[21] three persons who had pleaded guilty to a charge of having cultivated a commercial quantity of narcotic plants and a charge of theft of electricity appealed against sentences imposed upon them. Two of the three, Kemal Latif and Serkan Niyazi, were sentenced to terms of three years six months' imprisonment on the cultivation charge and two months' imprisonment on the theft charge. Two weeks of the term on the theft charge had been ordered to be cumulative on the cultivation sentences, making a total effective sentence of three years six months and two weeks in each case. A non-parole period of two years four months was fixed in relation to one offender and two years two months in relation to the other. The cultivation in question was a sophisticated hydroponic set up in shipping containers in a factory, with 161 cannabis plants. At the time of the offending Latif and Niyazi were already on bail for cultivation of cannabis offences constituted by 'house sitting'. Prior to the sentences which were the subject of the appeal they had been dealt with for that earlier offending behaviour and had received a suspended sentence. They were each in their early 30s at the time of sentence. The sentencing judge was found to have made a specific error. She discounted the weight to be given to their remorse on the basis that they had not been 'forthcoming' as to how the criminal enterprise had been funded. There had been no evidence that Latif and Niyazi had been involved in obtaining the premises or the equipment used and there had been no evidence that they had contributed financially to the setting up of the system. Notwithstanding the specific error, their appeals were dismissed as the Court found that no different sentences should be imposed. The sentences which had been imposed were described as 'both moderate and entirely appropriate'.[22]

32 In Alecu & Theoharethes v The Queen[23] this Court considered appeals on conviction and sentence by two offenders in relation to a cannabis crop discovered in an underground water tank. The offending had taken place over a period of seven months. For present purposes it is only necessary to consider the position of Theoharethes. Theoharethes pleaded guilty to one count of theft of electricity and one count of possession of a drug of dependence. He accepted that he was guilty of the offence of cultivation but contested the issue of whether he had intended to cultivate a commercial quantity. He was found guilty after a trial of the offence of cultivating a commercial quantity of narcotic plants. On that count he was sentenced to a term of imprisonment of three years six months. He had prior drug-related convictions for trafficking a drug of dependence, being heroin, and had many other prior convictions. Again, a sentencing error was held to have been made, but, again, the appeal was dismissed because the Court was not satisfied that a different sentence should be passed.

33 R v Filipovic & Gelevski[24] was an appeal concerning two co-offenders. They had been convicted after a trial of cultivating a commercial quantity of a narcotic plant and trafficking a drug of dependence. Relevantly, they also pleaded guilty to theft of electricity. The offending involved a hydroponic system in a property leased and modified for the purpose. The offenders were prepared to plead guilty to the offence of cultivation and the issue in the trial had been whether they intended to cultivate a commercial quantity. Evidence had been given that they were both very heavy cannabis users and that they had cultivated the cannabis for their own personal use. The appeals on conviction in relation to one of the charges succeeded and it was accordingly necessary to re-sentence the offenders. One of the offenders, Gelevski, had a previous conviction for trafficking a drug of dependence (cannabis), possession of a drug of dependence (amphetamine) and theft. He had been fined for those offences. Gelevski was said to have had a very high dependence on cannabis. He was 26 to 27 years of age at the time of the offending. He was able to call favourable character evidence. The Court accepted that the motivation for the cultivation was personal use and that the offending was at the 'lower end of the scale'. Gelevski was sentenced on the count of cultivation of a commercial quantity of narcotic plants to imprisonment to a term of two years and four months. A sentence of six months' imprisonment was imposed on a charge of theft of electricity and three months of that sentence was cumulated on the sentence for cultivation. There was also a charge of intentionally damaging property for which he received a term of imprisonment of three months without cumulation. The total effective sentence was accordingly two years and seven months' imprisonment. A non-parole period of 15 months was fixed.

34 Finally, brief reference should be made to the two specific cases relied upon respectively by the appellant and the respondent and to the chart annexed to Nguyen 2010 relied upon by the appellant.

35 The appellant relied upon a recent County Court sentence, Corbell. The offender in that case pleaded guilty to cultivating narcotic plants in a commercial quantity and theft of electricity. The offender was 70 years of age. He had no prior convictions. The principles in Verdins applied. He was sentenced to terms of imprisonment of 12 months on the cultivation offence and four months on the theft. Two months cumulation was ordered making a total effective sentence of 14 months. A non-parole period of eight months was fixed.

36 The respondent relied upon Nguyen 2013. The offender in that case cultivated a commercial quantity of narcotic plants in large numbers over three locations. In all, well over 1,000 plants were discovered. He had no prior convictions. He was 60 years of age at the time of sentence and had come to Australia as a refugee from Vietnam. After a trial he had been found guilty of four charges of cultivating a narcotic plant in a commercial quantity, one charge of trafficking in a drug of dependence and four charges of theft of electricity. The County Court judge imposed a total effective sentence of six years and nine months' imprisonment with a non-parole period of four years nine months. On each of four charges of cultivation of a commercial quantity of narcotic plants the appellant was sentenced to five years' imprisonment. He was sentenced to a term of one year nine months' imprisonment on each of the four charges of theft. The Court of Appeal found that the sentences imposed were not manifestly excessive.

37 The table annexed to Nguyen 2010 sets out a number of prior sentences including sentences before 2007. For offenders with 'prior drug convictions' the range of sentences on the relevant offence is from suspended sentences to five years' imprisonment. There are only five cases on the table where the offender had prior drug convictions. To that extent the impact of the submission that 'only' one is higher than the sentence imposed here is reduced. The one sentence which is higher is the sentence imposed upon a re-sentencing by this Court in R v Mason ('Mason').[25]

38 In Mason a conviction appeal succeeded on a trafficking charge and this Court was then required to re-sentence the appellant on one charge of cultivation of cannabis in a commercial quantity and two charges of theft of electricity. The offending involved hydroponic crops in two houses using diverted electricity. The total number of plants in the two houses was 385. The appellant was the organiser of the overall operation. He had a prior conviction for producing cannabis in the Northern Territory 10 years earlier. At the time of re-sentence he was 69 years' old. His physical health was poor, and he also suffered from depression, anxiety and low self-esteem. His marriage had broken up at the time of his prior offence and he had since then lived on an invalid pension. He had owned one of the houses and that had been confiscated. He had pleaded guilty upon commencement of the trial. This Court re-sentenced him to a term of five years' imprisonment on the cultivation charge and six months' imprisonment on each of the theft charges. Cumulation of two months on each of the six month terms was ordered, making a total effective sentence of five years four months. A non-parole period of three years was fixed.

39 The ground upon which the appellant has leave to appeal contends that the sentencing judge made two specific errors, being that he treated the appellant's reason for the offending as irrelevant, and that he failed to take into account in mitigation the appellant's disadvantaged background.

40 The sentencing judge did not treat the appellant's reasons for offending as being irrelevant. He quoted the section of the record of interview in which the appellant said that he was motivated by the 'big money' to be made, and he set out what the appellant had alluded to in the record of interview, and what was put on instructions from the bar table during the plea, to the effect that the appellant had intended to use the money obtained to travel to Vietnam and possibly remarry.

41 The sentencing judge accepted that the appellant was socially isolated and he accepted that what he had been told about the appellant's intentions, which he said he had no reason to disbelieve, was perhaps an 'explanation'. What the judge also said, however, was that the appellant's motivation was profit and that the particular use which he had in mind for that profit made, in the judge's view, 'not the slightest difference given the seriousness of charge 1'. It was this conclusion which was said to constitute the error.

42 We do not consider that any error has been demonstrated in this respect. In our view, what the sentencing judge said was a conclusion open to him. The appellant's motive was profit. He was not growing cannabis for personal use. He was not working for someone else for payment. The appellant was the principal. It was his enterprise. The plans which he had for the use of the profit which he hoped to make were not altruistic in the sense of being motivated by a desire to assist others, nor were they related to some compelling necessity such as urgent medical treatment. It seems to us that, in the circumstances, what the judge said was fully warranted.

43 The second specific error contended for is that the judge had failed to take into account in mitigation the appellant's disadvantaged background.

44 The determination of an offender's moral culpability does not depend solely on an objective assessment of the actions and conduct of the particular offender. Such a determination necessarily involves a careful consideration of matters that are personal to the offender, and which may provide an appropriate or some explanation of how the offender came to commit the offence. An offender's personal history, including deprived and isolated circumstances, are matters which inform the notion of 'individualised justice';[26] they are always matters to which careful consideration should be given by a sentencing judge as bearing, in perhaps only a limited way, upon his level of moral culpability.[27]

45 Whilst judges must be given very great latitude as to the form and content of their reasons for sentence, if an important issue is given only brief attention, the impression may arise that the judge failed to appreciate its true significance.

46 Here the sentencing judge did give this matter only brief attention but he made sufficient reference to the appellant's deprived and isolated circumstances as to demonstrate that they were taken into account. It may be that the absence of greater attention to them in the sentencing remarks is to be explained by the fact that counsel who appeared for the appellant did not make much of them during the hearing of the plea in mitigation.

47 The appellant further submitted that the reference his Honour made to the appellant's refugee status was a statement to the effect that the appellant had squandered the opportunities made available to him in coming to Australia. It was said that his approach treated the appellant's refugee status as an aggravating circumstance and that it reflected the fact that his Honour was not treating the appellant's circumstances in Australia as capable of constituting a factor in mitigation.

48 It is the fact that the appellant came to Australia as a refugee and that he has 'squandered opportunities' in Australia. That is part of the appellant's relevant history.

49 In our opinion, his Honour was not treating that fact as an aggravating circumstance or as diminishing the significance of the appellant's disadvantaged background.

50 His Honour's remarks in this respect were open to misinterpretation. Whilst acknowledging that an overzealous analysis of sentencing remarks, particularly when made ex tempore, is to be avoided,[28] if observations are to be made concerning an entire section of the community, care should be taken to ensure that the basis upon which the remarks are made, and their relevance, is clear.

Analysis - proposed ground 2 - manifest excess

52 As has often been stated, manifest excess is a stringent ground difficult to make good. It must be shown that something has gone obviously, plainly or badly wrong. The sentence imposed must be wholly outside the range of sentencing options available.

53 The appellant does not have leave to appeal on this ground. In our view leave should be refused.

54 The maximum penalty for this offence is 25 years' imprisonment. The appellant's motive was profit. The appellant was the principal in the enterprise. He has a prior conviction for very similar conduct for which he received a suspended sentence approximately 10 years prior to the current offending. He has another drug-related conviction during the period between that offence and these offences.

55 The sentence imposed is above the median and is towards the upper end of the range as revealed by the relevant statistics. Subject to the earlier observation we made concerning current sentencing practice for this offence, that sentence is fully warranted by the circumstances of the case, and in particular by the appellant's role as a principal and his prior conviction for very similar offending.

56 The comparable cases do not suggest that the sentences imposed here are outside the range. The offenders in Latif had not been proved to be principals. They were sentenced to three years six months' imprisonment on the relevant counts as compared to the appellant's four years six months. Theoharethes had prior convictions, including drug trafficking, but it could not be said of him that he had previously engaged in almost the very same conduct. His sentence for commercial cultivation was also one year below that imposed on the appellant. Gelevski is not comparable as his offending involved cultivation for personal use. The position in Corbell was quite different to that here. That offender had no prior convictions and the principles in Verdins applied. The enterprise in Nguyen 2013 was significantly more extensive than here, but the offender in that case had no prior convictions and, in any event, the total effective sentence imposed there was higher than that imposed here. The table annexed to the decision in Nguyen 2010 does not assist the appellant. Indeed, it seems to us that the appellant's position is similar in many respects to that of the offender in Mason where a higher sentence was imposed.

58 For completeness we should state that even if specific error had been made out, we are not persuaded that a different sentence should be imposed.

59 Leave should be refused on proposed ground 2. The appeal on ground 1 should be dismissed.

[1] DPP v Bui (Unreported, County Court of Victoria, Judge McInerney, 23 April 2015) [8]-[9] ('Sentencing Reasons').

[13] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[15] R v Pham [2015] HCA 39 [47].

[16] Hudson v The Queen (2010) 30 VR 610, 617 [31].

[17] Ayol v The Queen [2014] VSCA 151 [32].

[18] SAC, Major Drug Offences - Current Sentencing Practices (March 2015) 25 [4.36].

[20] R v Spiteri [2011] VSCA 33.

[25] [2006] VSCA 55 ('Mason').

[26] R v Grose (2014) 119 SASR 92, 103 [38]; R v Pennington [2015] SASCFC 98 [23] and [25].

[27] Bugmy v The Queen (2013) 249 CLR 571, 595 [44]; DPP v O J A [2007] VSCA 129 [64]; DPP v Terrick [2009] VSCA 220; (2009) 24 VR 457, 468 [46]; Marrah v The Queen [2014] VSCA 119 [16]; DPP v Zhuang [2015] VSCA 96 [56]; Miller v The Queen [2015] NSWCCA 86 [99]; Morrison v The Queen [2015] VSCA 249 [46].

[28] Saxon v The Queen [2014] VSCA 296 [47].

At a glance

Court

Decision date

Before

Source

Judgment (97 paragraphs)

Parties

Cases Cited (5)