Dang v The Queen [2020] VSCA 24

2 The cultivation of the cannabis occurred at two premises; the first in Norlane and the second in Winchelsea. As is common for offending of this kind, three aspects featured prominently on the plea and in the formulation of sentence: the quantity of the drugs, the degree of sophistication of the operation and the role of the applicant. There were also a number of features personal to the applicant, including his early plea of guilty, which served to moderate the sentence and to which we shall return.

3 On the first aspect, 29.76 kg from 48 plants were located at the Norlane premises and 26.86 kg from 95 plants were located in the Winchelsea premises. Bearing in mind that the applicant pleaded guilty to a single charge covering the two locations, the total weight of cannabis was 56.62 kg from 143 plants. A commercial quantity of cannabis is 25 kg or 100 plants.[1]

4 The operation at each of the two premises was relatively intensive. The cultivation had a level of sophistication that is common to these types of operations. It involved extensive lighting,[2] fans and watering systems, and the electricity meters were bypassed to steal electricity and avoid detection.

5 The role of the applicant differed in relation to the two premises. In relation to the Winchelsea premises, it was accepted on the plea that the applicant was aware that others were cultivating cannabis and that he had assisted in preparing the dwelling for cultivation. It was not suggested that he was aware of the number of plants or the weight of the crop. On the plea, it was said from the Bar table that the applicant was living at that property, he had the electricity account put into his name and he was told by others that he had to move premises because they were going to use that property to cultivate cannabis. The applicant assisted by bringing in boxes of light globes and electrical equipment and, after assisting in the set-up of the property, he had no other involvement in cultivating the crop. On those facts, it was submitted that the applicant's involvement in the Winchelsea operation was at a low level; he was not a 'crop sitter' but rather aided and abetted others at the very early stages of the commercial cultivation.

6 The applicant's involvement at the Norlane premises was more substantial. He had received some electrical training in Vietnam and used those skills to set up a bypass of the electricity meter and he also assisted in tending to the plants.

7 Although the applicant's role differed with respect to the two premises, the applicant's counsel brought them together in his submission to the judge at the plea hearing. It was submitted:

... it would be appropriate to find that he sits slightly above the level of straight, out-and-out crop sitter because of the matters that I've alluded to earlier. In particular, his involvement with the bypass at Norlane, his knowledge about the commercial activity occurring at Winchelsea as well, and the degree of involvement at Norlane sits slightly above that of a traditional crop sitter.

(s 74(1) of the Crimes Act 1958)

(s 72A of the Drugs, Poisons and Controlled Substance Act 1981)

Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

6AAA Statement: 5 years' imprisonment with a non-parole period of 3 years and 4 months.

9 In concise, but sufficient reasons for sentence, the judge recorded the submission of the prosecution that the applicant was at the lower end of the operation, but more than a crop sitter at the Norlane premises, and that he had facilitated the establishment of the hydroponic equipment at Winchelsea. The judge noted the applicant's concession that he was 'just' above the crop sitter role but at the lower end of the operation.[3] Having noted those matters, the judge said that the applicant was to be dealt with at the lower end of the operation but above those who are crop sitters.[4]

10 The judge set out the personal circumstances of the applicant.[5] They included that he is a citizen of Vietnam living in Australia, having illegally overstayed a tourist visa. The judge noted that the applicant is 40 years of age and married with two children, both of whom live in Vietnam. The judge noted that the applicant wishes to return to Vietnam and his family responsibilities as soon as possible. The judge noted that the applicant pleaded guilty at an early stage in relation to the Norlane premises and after some negotiation in respect of the Winchelsea premises. The judge accepted that the plea of guilty was an early and a useful one, especially in relation to Winchelsea.

11 The judge noted the difficulties confronting the applicant in prison as a person with limited English language and with some health problems, including hepatitis B, a bowel condition and elevated cholesterol. The judge noted that the applicant will, in all likelihood, be deported from Australia after the completion of his sentence.

12 The applicant seeks leave to appeal on the single proposed ground that the individual sentences and the total effective sentence are manifestly excessive.

13 In oral submissions, the applicant focused on the approach taken by the judge to the role of the applicant. It was submitted that the judge had accepted that the role of the applicant was just above that of a crop sitter but that this was not reflected in the sentence. It was submitted that having regard to comparable sentences, a term of three years and four months for the cultivation charge was wholly outside the range of comparable sentences for offenders who had performed a role that was similar to that played by the applicant.

14 We accept that the judge found that the applicant's role was just above that of crop sitter and said that he would sentence the applicant on that basis. However, that does not take the applicant very far.

15 In drug offences generally, including the cultivation of cannabis, the quantity of drugs and the role of the offender are important indicia of the gravity of the offending. The quantity of drugs is reflected in the statutory scheme and will also reflect the dimensions of the enterprise and, in a general sense, the scale of profit that the enterprise may be expected to generate.

16 It is not uncommon to deploy hydroponic systems for the cultivation of cannabis and to utilise entire premises for the purpose. This inevitably requires someone to be present to look after the crop and to secure the premises. Such 'crop sitters' may be paid for their time and have no other organisational or financial interest in the operation. Their culpability, other things being equal, is properly seen as less than a person who financed, organised or who stands to benefit more substantially from the illicit activity.

... it is important that any label that is attached to the offender's role should not obscure, or distract attention from, the various factors that are relevant to a proper assessment of the gravity of the offending in a particular case. Those factors ordinarily include matters such as the tasks performed by the offender in the enterprise, the nature of his relationship with the principals or leaders of the enterprise, the degree of trust and responsibility reposed in the offender, the size, scope and sophistication of the enterprise, and any expectation of the offender in respect of the rewards to be derived from the enterprise. [6]

18 Further, the fact that the person is a crop sitter in that sense does not mean that there is a particular benchmark or tariff that must be rigidly applied in the formulation of sentence. It follows that to describe someone as performing a role that is greater, but not substantially so, than that of a crop sitter cannot translate into a fixed sentencing outcome. The focus when sentencing an offender must remain on what the offender has done in relation to the cultivation that forms the subject matter of the charge rather than the label to be applied.

19 Ultimately, in order to succeed on his proposed ground of appeal, the applicant must show that the sentence ordered was wholly outside the permissible range having regard to the quantity of the drugs, the role of the applicant and his personal circumstances. It is plainly necessary to have regard to comparable sentences, especially given that these types of offences are often conducted in a similar way and the offenders may have few distinguishing features that they can call on in aid in mitigation.

20 It is true that the applicant's role at the Winchelsea premises was, on the evidence, relatively modest and involved participation at an early stage of the enterprise. However, the applicant went on to play a much more significant role at the Norlane premises, both in terms of securing the electricity supply by unlawful means and cultivating the plants. Given that the applicant pleaded guilty to a single charge which covered both premises, and the way the plea was presented, it was open to the judge to make an overall assessment of the applicant's role. The applicant was more than a mere functionary and, without being too prescriptive, the judge's characterisation of his role as one of slightly more than a crop sitter, was apt to convey the sense of his involvement in the cultivation.

21 Our own assessment of comparable cases, including the sentences considered in Nguyen 2017 and Thanh Van Nguyen v The Queen[7] by this Court, reveals that the sentence imposed in this case was stern but we are not persuaded that the sentence was wholly outside the permissible range.

22 In Nguyen 2017, Kaye JA and Forrest AJA upheld an appeal on a ground of manifest excess in respect of an offender involved in cultivation of 167 cannabis plants weighing 127.16 kg in total. The offender had a role as a 'principal cultivator' and above a mere 'functionary'. This Court set aside a sentence of six years and six months with a non-parole period of four years and six months and sentenced the applicant to five years with a non-parole period of three years and six months.

23 In Nguyen 2019, this Court refused leave to appeal from sentences imposed on two offenders in relation to the cultivation of 128 cannabis plants that were being grown hydroponically with a total weight of 51.73 kg. Each offender was sentenced to three years and eight months on the cultivation charge. In the course of rejecting a challenge to the judge's assessment of the role played by the offenders, the court cautioned against sentencing by label.[8] The court rejected a ground based on manifest excess, concluding:

Cultivating a narcotic plant in a quantity not less than the commercial quantity carries a maximum term of imprisonment of 25 years. The offending in the present case was, as described by the judge, sophisticated. In Nguyen v The Queen, this Court recently resentenced two offenders who had pleaded guilty to cultivating a narcotic plant in a quantity not less than the commercial quantity to terms of imprisonment of 3 years and 9 months and 3 years and 6 months. The sentences imposed in that case and the cases referred to in that judgment show that the sentences imposed by the judge in the present case are entirely unexceptional - even for 'crop sitters '.[9]

24 The reference in that passage to Nguyen is to Hung Van Nguyen v The Queen,[10] a decision of this Court constituted by Priest and Beach JJA.[11] The applicants in that case were sentenced for a number of offences, including cultivation of cannabis. The total weight was 81.75 kg from 182 cannabis plants. The parties accepted that the applicants performed the role of crop sitters. The applicants had each been sentenced in the County Court to six years imprisonment on the cultivation charge.

25 After referring to McClelland v The Queen[12] (61.488 kg, 73 plants, sentenced to five years' imprisonment with a non-parole period of three years and six months), the Court held that the sentence of six years was wholly outside the permissible range. In Nguyen 2018, the court resentenced Nguyen to a total effective sentence of four years with a non-parole period of two years and four months and the co-offender, Pham, to a total effective sentence of three years and nine months with a non-parole period of two years and two months.

26 The examples can be multiplied. Although current sentencing practice, as a relevant matter to which regard must be had, shows a degree of consistency in the sentences for cultivation of cannabis, they do not, and cannot, set a precise figure referable to weight, number of plants or role of the offender. Those cases do not suggest that the sentence imposed on the applicant was out of kilter with comparable cases.

27 Having regard to those matters and comparable sentences, and giving due weight to the factors put on the applicant's behalf in mitigation, the sentence imposed on the applicant in this case was stern and the non-parole period was proportionately quite high. Nevertheless, we are not persuaded that either was wholly outside the permissible range.

28 The application for leave to appeal against sentence must be refused.

[1] Drugs, Poisons and Controlled Substances Act 1981, s 70(1) and Schedule 11, Part 2.

[2] 29 globes, 29 shrouds and 29 transformers were found at the Norlane premises and 39 transformers, 16 shrouds and 16 globes were found at the Winchelsea premises.

[3] DPP v Dang (Unreported, County Court of Victoria, Judge Mullaly, 29 January 2019), [13].

[6] [2017] VSCA 286, [27] (Kaye JA and T Forrest AJA) ('Nguyen 2017').

[7] [2019] VSCA 134 (Priest and Beach JJA) ('Nguyen 2019').

[10] [2018] VSCA 322. (Priest and Beach JJA) ('Nguyen 2018').

[12] [2017] VSCA 124.