DPP v Duong [2006] VSCA 78

2 On 23 April 2002, members of the police force executed a search warrant at a house in Delahay owned by the respondent. They found 152 cannabis plants growing in rooms in the house with the aid of a hydroponic system consisting of plastic linings of the rooms, fans, lights and irrigation equipment. The electricity meter had been bypassed. When she was interviewed by the police, the respondent denied knowledge of the cannabis plants. The respondent was arrested and released on bail.

3 On 15 November 2004, the respondent was arraigned in the County Court and pleaded guilty to a presentment containing one count of cultivating a commercial quantity of cannabis and one count of theft of electricity.

4 The next day, police executed a search warrant at a house in Hoppers Crossing containing a sophisticated hydroponic system and 197 cannabis plants. The house was owned by the respondent's husband. The respondent told the police that she had attended at the house to clean it and denied being involved in the cultivation of the cannabis plants.

5 On 25 October 2005, the respondent was arraigned in the County Court and pleaded guilty to a presentment containing one count of cultivating a commercial quantity of cannabis and one count of theft of electricity. The presentment related to the second house. After a plea, the respondent was sentenced to be imprisoned for a term of two years on the count of cultivation in the first presentment, for a term of six months on the count of theft in that presentment, for a term of two years and six months upon the count of cultivation in the second presentment, and for a term of nine months on the count of theft in that presentment. The sentencing judge cumulated 15 months of the sentence imposed in respect of the count of cultivation in the second presentment and three months of the sentence imposed in respect of the theft in the second presentment on the sentence imposed in respect of the count of cultivation in the first presentment, producing a total effective sentence of three years and six months. A minimum term of two years was fixed before the respondent was to become eligible for parole. The sentencing judge directed, pursuant to s.6F of the Sentencing Act 1991, that it be recorded that the respondent was sentenced in respect of counts 1 and 2 on the second presentment as a serious drug offender.

6 This appeal has been brought by the Director of Public Prosecutions against the sentence pursuant to the provisions of s.567A of the Crimes Act 1958. The grounds of appeal allege that the individual sentences, the total effective sentence and the minimum term were each manifestly inadequate. It is also alleged that the sentencing judge made a number of specific errors. I turn first to the complaints of specific error.

7 The first complaint was that the sentencing judge erred by making orders for cumulation on a count other than that on which the heaviest sentence had been imposed. It was submitted on behalf of the Director that the effect of this method of cumulation was to halve the sentence imposed on the most serious offence, a problem exacerbated by the presumption of cumulation created by s.6E of the Sentencing Act.

8 It is preferable that orders for cumulation be based upon the most serious count, but that is not an inflexible rule; nor is it itself a sentencing error. The question is whether cumulating upon a less serious count has produced a total effective sentence which is manifestly inadequate. In R. v. MDB[1], an appeal by an offender was allowed because cumulating on a less serious count, in the circumstances of that case, was held to be double punishment and led to a sentence that was manifestly excessive. Ormiston, J.A. said:

"The vice lay in cumulating a significant proportion of the sentences imposed on the other counts, which had already been used by his Honour in characterising the rape offences themselves."

In the present case, I do not consider that the eccentric method of cumulation adopted by the sentencing judge produced individual sentences, or a total effective sentence, that were, or was, inappropriate.

9 The next complaint of specific error was that the sentencing judge erred by making orders for cumulation when a presumption of cumulation applied because the respondent was sentenced as a serious drug offender and because the respondent committed the offences the subject matter of the second presentment while she was on bail. While orders for concurrency are normally made where, without direction, there would be cumulation, I do not think the failure to adopt the normal course constitutes a sentencing error unless it appears that the sentencing judge misapprehended the existence of the presumption created by the Act. In the present case, I do not think that is so, and the sentencing judge achieved the result she intended.

10 The last complaint of specific error was that the sentencing judge erred in purporting to sentence the respondent as a serious drug offender on the count of theft alleged in the second presentment, when that was not a "relevant offence" for the purposes of Part 2A of the Sentencing Act. The error, if made, could only have led to a sentence that was heavier than it should have been. Section 567A does not bar the Director from appealing against an excessive sentence. I do not consider, however, that the sentence itself should be varied. The offences alleged in the second presentment were in fact more serious than those the subject matter of the first presentment. There were more plants being cultivated, and the value of stolen electricity was higher. An additional three months' imprisonment for the second theft count was, in my view, appropriate.

11 There remains the ground of complaint of manifest inadequacy of the sentence and minimum term. This ground requires an examination of the background and characteristics of the respondent. The respondent is now 34 years old. She was born in North Vietnam. She lived in a city which was heavily bombed during the Vietnamese war. She led an unstable, itinerant existence before fleeing Vietnam in 1989 in a small fishing boat carrying a large number of people. After a voyage in the course of which passengers died of starvation, the boat reached Hong Kong. The respondent was interned in a refugee camp, where she was raped and otherwise abused. The conditions under which the respondent lived caused her to be infected with hepatitis B and suffer cardiac failure requiring open-heart surgery. The respondent married in Hong Kong and in 1996 was allowed to migrate to Australia. The respondent is the mother of girls aged ten and five years, who are now cared for by their father. A psychologist reported to the sentencing judge that the respondent suffered from depression and that her concerns for the wellbeing of her children "affected her severely".

12 There can be no doubting the gravity of the respondent's conduct. The seriousness of the offence of cultivation of a commercial quantity of cannabis is reflected by the maximum sentence of 25 years' imprisonment imposed by the legislation. The respondent participated in the cultivation of two large crops in two houses. The offences the subject matter of the second presentment were committed while the respondent was on bail. Although the sentencing judge was unable to find the precise role played by the respondent, it is to be noted that she was the owner of one of the houses in which the crops were cultivated.

13 The grave harm which cannabis grown by modern methods can inflict has been noted by many judges. Generally the offence requires substantial punishment. The increasing number of hydroponic crops of cannabis detected in the last few years is material, although it was not put to the sentencing judge in this case that sentences for cultivation of cannabis should generally be increased.

14 The respondent, however, could rely upon a number of mitigating factors. She pleaded guilty to the charges, albeit the plea to the first presentment was not an early plea. The sentencing judge found that the respondent was remorseful. The respondent had no prior convictions. Her Honour also thought that there was a prospect of the respondent's rehabilitation and that her separation from her children enhanced that prospect. The respondent's upbringing was marked by privations and suffering. Her health is poor: she suffers life-threatening illness and depression.

15 The sentence may be viewed as lenient in the light of the respondent's offending conduct. When the respondent's personal circumstances are taken into account, however, I consider that the individual sentences, the total effective sentence and the minimum term were all within the range available to the sentencing judge. I would dismiss the appeal.

16 I agree with the reasons for judgment of Buchanan, J.A.

17 There was a submission made on behalf of the Director that this was an appropriate case to increase the sentence by taking account of the increased prevalence of cannabis grown by hydroponics, and also the impact of the availability of such cannabis on society. Attention was drawn to statistical data submitted by the prosecutor on the plea to demonstrate the increase in that prevalence. The data seemed to be, by way of calendar years: 2001 - 17 cases; 2002 - 30 cases; 2003 - 56 cases; and for the year 2004 up until July, that is, half of the calendar year - 78 cases. It seems that there was no other information before the sentencing judge.

18 In the course of the submissions to this Court it was urged that the Court take account of the increased prevalence and, on the basis of that factor together with the other submissions, provide the basis for the increase in sentence to be imposed on the respondent. This was a matter that in my view was not properly put to the sentencing judge, and indeed the data that was put before her Honour was very limited. It is not apparent, for example, as to whether the increase in cases can to some extent be explained by way of increased police surveillance or other matters in the course of police investigation.

19 Of course, it might be that an increase in prevalence of a particular crime does provide a foundation or basis upon which to urge a court to increase the penalties that have been previously imposed. Indeed, such has occurred with respect to the offence of culpable driving. However, the offences in this case are distinguishable from the culpable driving offence because culpable driving of itself is a specific event that does not come to light in the community and to the attention of the police merely by way of increased police attention. It seems to me that it would be desirable in a case such as this, if the Director wishes to urge an increase in penalties, for a prosecutor at first instance to put material before the court, properly set out, explaining the foundation for the submission that there has been an increase, and as to why the court should adopt a different approach and increase the penalty above and beyond that previously imposed.

20 Save for these remarks, as I indicated, I agree with the reasons and the disposition proposed by Buchanan, J.A.

21 I agree that the appeal should be dismissed for the reasons given by my brother Buchanan. I agree with the remarks of the learned Chief Justice as to the way in which, if the Director seeks to raise a question as to the adequacy of sentencing generally concerning a particular class of case, the matter ought be addressed at first instance and not, for the first time, on appeal.

22 The order of the Court proposed is that the appeal be dismissed and that the order below stand.

23 There is the matter, however, Mr McArdle, with respect to the recording of the respondent as a serious drug offender, and what the Court would propose to do would be to order that the order below stand, save that it be recorded pursuant to s.6J of the Sentencing Act that the respondent be sentenced as a serious drug offender on count 1 of the second presentment.

WARREN, C.J.:

24 Orders will be made accordingly with respect to s.6J and the recording on count 1 of the second presentment with respect to the respondent being a serious drug offender, and a certificate is granted to the respondent pursuant to s.15 of the Appeal Costs Act.

[1] [2003] VSCA 181.