CO, Ngoc Van v R

Court of Criminal Appeal (NSW)|2011-02-08|Before: Ms J, Hulme J, Giles JA, Adams J

Judgment 1GILES JA For the reasons given by RS Hulme J, none of the grounds of appeal is made out - I agree with the orders proposed by his Honour. 2RS HULME J: On 9 April 2010 this Applicant for leave to appeal was sentenced by Keleman DCJ in respect of an offence of cultivating not less than a large commercial quantity of cannabis plants by enhanced indoor means contrary to s23(2)(a) and s33(3) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for the prescribed offence is 20 years and a fine of 5000 penalty units. A standard non-parole period of 10 years imprisonment was specified by the Crimes (Sentencing Procedure) Act 2007 which commenced on 1 January 2008. The large commercial quantity for prohibited plants cultivated by enhanced indoor means is 200 or more and the Applicant's offence involved 266 plants. 3The sentence imposed was of imprisonment for 7 years and 6 months, including a non-parole period of 4 years, both periods commencing on 16 October 2009. His Honour declined to impose a penalty on an associated offence of dealing with electricity without authority. 4The Applicant resided at the premises where the cultivation occurred, having leased them 12 months earlier. The premises themselves were heavily fortified with steel roller shutters installed on all windows, steel security doors installed on all entrances and numerous sensor lights and CCTV cameras installed on the exterior. Located in five rooms inside the premises was a sophisticated hydroponic set up. The plants varied in size from 100mm to in excess of 1 metre. Electricity to the premises was supplied via an illegal bypass from the mains power lines. 5On the occasion when the police searched the premises the Applicant was arrested. When interviewed he made full admissions to nurturing the 266 plants for the previous 3 months and advised that he had intended to sell the cannabis leaf following the harvesting of the plants. However, to a psychologist whose report was tendered in evidence, the Applicant asserted he was merely cultivating for someone else and was to receive but $5000 for his efforts. His Honour did not accept that the Applicant's role was so limited and was satisfied that the Applicant "was fully involved in all aspects of the cultivation process and intended harvesting the cannabis plants for himself with the intention of selling the cannabis leaf harvested". His Honour was of the opinion that the offence fell within the middle range of objective seriousness but at the lower end of that middle range. 6The Applicant was aged 44 at the time of his arrest and had no prior criminal history. He received a discount of the order of 25% for his plea. He was born and raised in Vietnam leaving there by boat when 22. He spent some time in a refugee camp in Hong Kong. In 1992 he was accepted as a refugee in New Zealand. He and his partner migrated to Australia in 1997 and their three children have been born here. 7The Applicant seems to have been a hard worker. As a result of long hours his relationship with his partner broke down, the Applicant taking custody of their two daughters. The need to care for them resulted in the Applicant giving up employment and going on to a single parent's pension. He was very distressed in consequence of the marriage break up and suffered significant depression. 8His Honour accepted that the Applicant was a good husband and father, was not a user of illegal drugs, used alcohol only in moderation and did not have a gambling problem; his parents had significant health problems and from the time of obtaining work in New Zealand until he gave up work to care for this daughters the Applicant had been sending money to them. His Honour accepted that probably some of the money the Applicant was to receive from the marijuana would be passed on to help his parents in Vietnam. 9Because of his Honour's view that the Applicant had attempted to minimise his role, his Honour concluded that his remorse was limited. However his Honour also found that "if the offender maintains his present motivation his prospects of rehabilitation are reasonably good and he is unlikely to re-offend in the future." 10Later his Honour observed:- "Having regard to the offender's age, the circumstance that this is to be his first custodial sentence, as I am satisfied he will benefit from an extended period of supervision to assist him deal with his psychological and other problems and to maintain strategies to assist in his rehabilitation generally, I find special circumstances in accordance with s 44(2) of the Crimes (Sentencing Procedure) Act 1999." 11The basis for that conclusion of his Honour is not apparent. While a psychologist's report suggested that the Applicant might benefit from relationship counselling with his wife, the author of the Pre-sentence report remarked that "There are no obvious areas of his (the Applicant's) life that could be addressed by a period of supervision ... (and the Applicant) has been assessed as unlikely to require, or benefit from supervision by this Service ..." 12The grounds of appeal are:-

Ground 3(b) 14What his Honour said relevant to this ground was:- The present offence is objectively serious. For such an offence considerations of general deterrence and punishment are of particular importance. 15The Applicant's offence involved deliberate criminality for financial reward, potentially high financial reward. The frequency with which the Courts have to deal with offences of the type committed by the Applicant indicates that many persons regard the benefits as outweighing the risks. As the first paragraph of these Reasons makes clear, the legislature has enacted high penalties for such offences. 16In these circumstances I see no error in his Honour's remarks that considerations of general deterrence and punishment are of particular importance.

Ground 3(c) 17What his Honour said that inspired this ground was:- Having regard to the number of plants involved in the present offence and the role I am satisfied the offender played in committing it, I am satisfied that the present offence falls within the middle range of objective seriousness for such offences, but at the lower end of the middle range. 18In support of the ground, counsel submitted:- (i) By comparison with other cases the number of plants in this case did not greatly exceed the minimum number that falls within the large commercial range. (ii) To place great or primary importance on the number of plants was to fall into error. Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 and Markarian v R [2005] HCA 25; (2005) 228 CLR 357 were cited in support (iii) The Applicant had a limited role and it was not suggested he had any significant assets. 19The first of these propositions may be accepted. Nevertheless the fact remains that the 200 plant minimum was exceeded by a significant margin - about 33%. 20The first thing that may be said concerning the second of the submissions is to acknowledge that in both of the cases cited, the High Court did make clear that the weight of an illicit drug (or in this case the number of plants) was not to be regarded as the chief factor or one on which too much emphasis was to be placed in the determination of an appropriate sentence. However, it must also be noticed that the issue the subject of this ground is the objective seriousness of the offence, a significantly narrower issue than the appropriate sentence. Nevertheless even in respect of this narrower issue the tenor of the High Court's remarks remain valid. 21The second point that may be made is that his Honour did not place primary importance on the number of plants. Certainly the number of plants was one of the two matters to which his Honour referred but in the context of the case there was only a limited number of other matters that bore on objective seriousness and these had either been dealt with or were so obvious that it cannot be thought that his Honour overlooked them. Included in these is the Applicant's motivation and - two of the matters that the majority judgment in Wong v R said were of significance - knowledge of the number of plants and, given the Applicant's role, some knowledge of the likely reward. 22The third of the submissions flies in the teeth of the finding - a finding was well open to his Honour - that "the offender was fully involved in all aspects of the cultivation process and intended harvesting the cannabis plants himself with the intention of selling the cannabis leaf harvested". 23In the result, I remain unpersuaded that his Honour erred in his conclusion that the Applicant's offence fell in the lower end of the middle of the range of objective seriousness.

Ground 3(d) 24Remorse is a matter of mitigation the onus of which lies on an offender to establish. Having regard to the difference between the account the Applicant gave the police soon after his arrest and his far more self serving statement to the psychologist he saw for the purposes of the sentencing proceedings, his Honour was fully entitled to conclude that the Applicant's remorse was limited. 25The Applicant's counsel went on to submit that remorse may be established by a plea of guilty alone. That submission cannot be accepted although I have no difficulty in accepting that such a plea may be evidence of remorse. However, as a generality, the matter cannot be put higher. A plea of guilty is often induced by the discount of up to 25% allowed off the sentence otherwise appropriate and it is question of fact in each case whether an inference of remorse should be drawn.

Grounds 1, 2 and 3(a) 26There are no particular passages in his Honour's remarks relied on in support of these grounds. Essentially the complaints amount to the contention that the sentence imposed was manifestly excessive, possibly on account of the matters referred to. 27The principal argument advanced was that the Applicant's sentence was very high by comparison with almost all other sentences imposed in the District Court for offences of a like nature. 28That proposition, particularly insofar as the head sentence is concerned may be accepted. However, note might also be made of remarks of Berman DCJ in R v Hung Phuc LY (unreported, 7 October 2010):- ... other sentences imposed upon those convicted of cultivating a large commercial quantity of cannabis by enhanced indoor means do not appear to have reflected the seriousness with which the legislature says such offences should be treated. 29I have not found it necessary for the purposes of resolving this appeal to carry out any comprehensive review of the sentences to which his Honour referred although it is fair to say that the statistics provide a deal of support for his Honour's view. Those statistics, the latest of which reflect sentences imposed prior to December 2009, show that of twenty five offenders who pleaded guilty to the offence of cultivating a large commercial quantity of cannabis by enhanced indoor means, the median head sentence imposed was of 4 years and the median non-parole period was of 2 years. Even making allowance for offenders' pleas, the latter figure is so far removed from the standard non-parole period of 10 years as to be surprising. 30Furthermore, there have been at least four decisions of this Court last year and one this year that lead to the conclusion that the pattern revealed by the cases relied on by the Appellant should not be regarded as definitive. 31In Phan v R [2010] NSWCCA 8 this Court refused to interfere with a sentence of 5 years including a non-parole period of 3 years on an offender whose role was limited to, albeit in a significant way, assisting for 3 days in the setting up of an indoor hydroponic operation. 32In Tran v R [2010] NSWCCA 72, after a review of some 6 previous decisions, the Court dismissed an appeal from a sentence of 7 years 6 months including an non-parole period of 5 years imposed on an offender who was in total control of an operation similar to that of the Applicant and growing 210 plants to make money. The Court held that the sentence, in the circumstances there, was not manifestly excessive. Tran did have a prior criminal history, including some 14 months earlier, a 6 months suspended sentence for growing, by enhanced indoor means, 30 cannabis plants. Tran's criminality was regarded as below mid-range - a finding that this Court regarded as somewhat favourable to Tran. He had also been held entitled to some leniency for delay, a 25% discount for his plea and a further discount for remorse. 33In R v LP [2010] NSWCCA 154, this Court allowed a Crown appeal and in respect of a charge of cultivating by enhanced means 274 plants sentenced the offender to imprisonment for 5 years and 6 months, including a non-parole period of 3 years. The sentence reflected a discount of 40% but after taking into account further offences of dealing with $100,000 suspected to be the proceeds of crime, possession of a prohibited weapon, unlawful possession of a driver's licence to deceive and offences of having a false instrument. 34In Wong v R [2010] NSWCCA 160 this Court dismissed an appeal by a 22 year old offender who was sentenced to imprisonment for 3 years and 9 months including a non-parole period of 1 year and 9 months for knowingly taking part in the cultivation of 255 plants by enhanced indoor means. The offender's role was to guard the plants, water and fertilize them for reward equal to the rent he would otherwise have had to pay. He was given a discount of 25% for his plea. 35In Pham v R [2011] NSWCCA 3 this Court dismissed an appeal against a sentence of 8 years including a non-parole period of 5 years on an offender who was regarded by the sentencing Judge, also Keleman DCJ, as a principal in the enhanced indoor cultivation of 305 cannabis plants, as his Honour found, solely for substantial financial gain. Pham was aged 56, had no prior record and received "the leniency to which a first offender and person of good character is entitled". Although his Honour found that Pham's remorse was, at best, limited, his Honour was also satisfied that Pham's prospects of rehabilitation were good and he was unlikely to re-offend. 36Keleman DCJ found that in light of Pham's role and the number of plants, his offence fell towards the lower end of the middle of the range of objective seriousness. His Honour also allowed a discount for the offender's plea of the order of 25%. 37The sentences in these cases demonstrate that the sentence imposed on the Applicant was not manifestly excessive. 38Having regard to the length of the sentence imposed, I would grant leave to appeal but dismiss the appeal. 39ADAMS J: I agree with RS Hulme J.

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