Khoa v The Queen [2015] VSCA 80

Court of Appeal (Vic)|2015-05-01|Before: Michael J, Weinberg JA, Kyrou JA

Director of Public Prosecutions v Khoa (Unreported, County Court of Victoria, Judge Taft, 14 November 2014)

CRIMINAL LAW - Sentence - Cultivation of cannabis in a commercial quantity - Guilty plea - Applicant sentenced to 2 years and 3 months' imprisonment with a non-parole period of 1 year and 3 months - Co-offender also pleaded guilty and was sentenced to 7 months' imprisonment - Parity principle - Applicant recruited co-offender as crop sitter, occasionally supervised her and took possession of the harvested crop but otherwise had a limited role - Co-offender cooperated with authorities, had health issues and no prior convictions - Applicant also cooperated with authorities but had a prior conviction for possession of drugs and a controlled weapon - Similarities in applicant's and co-offender's mitigating circumstances - Marked disparity in sentence not justified by comparative culpability and other circumstances - Application for leave to appeal granted and appeal allowed - Applicant resentenced to 1 year and 6 months' imprisonment with 1 year non-parole period.

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 On 14 November 2014, the applicant (now aged 29) pleaded guilty to one charge of cultivation of a commercial quantity of narcotic plants (cannabis) between 1 August 2013 and 1 November 2013.[1] Following a plea on that date, he was sentenced to 2 years and 3 months' imprisonment with a non-parole period of 1 year and 3 months. Pre-sentence detention was declared as 111 days. Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for his plea of guilty, the applicant would have been sentenced to a term of imprisonment of 3 years with a non-parole period of 2 years.

2 Also on 14 November 2014, the applicant's co-offender and wife, Thi Le, pleaded guilty to one charge of cultivation of narcotic plants between 31 October 2013 and 1 November 2013 and was sentenced by the same judge to a Community Correction Order for a period of 1 year.

3 Earlier, on 28 May 2014, the applicant's other co-offender, Thi Do, pleaded guilty to one charge of cultivation of a commercial quantity of narcotic plants (cannabis) between 1 August 2013 and 1 November 2013 and was sentenced by the same judge to 208 days (7 months[2]) imprisonment (time served).

4 The applicant seeks leave to appeal on the following grounds:

The learned sentencing judge erred by imposing a sentence that violates the principle of parity vis-à-vis the co-offender Thi Do.
The learned sentencing judge erred by treating the applicant's role as being equivalent to a middle manager.

5 For the reasons that follow, the application for leave to appeal will be granted, the appeal allowed, and the applicant resentenced.

6 In April 2013, Ms Do met the applicant at a party. She told the applicant she was having money problems. The applicant said he was also having money problems. The applicant told Ms Do that he had been asked to be a crop sitter looking after cannabis plants but did not want to do it. He said that he had been asked to look for someone else to do it. Ms Do agreed to do be a crop sitter.

7 In about July or August 2013, the applicant telephoned Ms Do and told her she would be crop sitting at 43 Fisher Court, Werribee. He said that she would be paid $5,000 to $10,000 for staying at the house and looking after the harvest for a few months. The applicant told Ms Do that his boss wanted her to start straight away. He drove her to the address and gave her a key. The house was already set up with a hydroponic system and an electrical bypass. The applicant gave Ms Do a sheet of paper with written instructions. He told her that the house was his boss's house and she was now the house minder. Ms Do followed the applicant's instructions. She watered and did all other things required to look after the crop.

8 The applicant was not directly involved in tending the crop. Ms Do called him if she was unsure of something. The applicant visited on about five occasions before the harvest and each time did not stay for very long. The purpose of each of the visits can be summarised follows.

(a) On the first occasion, the applicant dropped Ms Do off at the house.

(b) On the second occasion, the applicant came to cut the grass.

(c) On the third occasion, the applicant came to take away a dog from the premises, after the dog's barking had caused the neighbours to knock on the door. The applicant told Ms Do that the dog belonged to his boss.

(d) On the fourth occasion, the applicant came with Ms Do's father, Tiem Do, to fix a door and put in a wall next to the kitchen.

(e) On the fifth occasion, the applicant came to see if it was time to harvest the crop.

9 At the applicant's suggestion, Ms Do asked Ms Le for help in harvesting the crop and offered to pay her 'a couple of hundred dollars' for her assistance. Ms Le agreed and on 31 October 2014, Ms Do picked her up and took her to the Fisher Court property.

10 The mature crop was harvested by Ms Do and Ms Le on the evening of 31 October 2013, and into the morning of 1 November 2013. Together they picked the leaves, put the crop into bags and weighed the bags. The applicant provided instructions on how to harvest, but did not harvest the crop himself.

11 On the morning of 1 November 2013, the applicant attended the Fisher Court property with Mr Do so that Mr Do could continue working on the door. The applicant carried bags of harvested cannabis to his van. He spoke on the phone to someone, arranging delivery of the crop. He then told Ms Le to continue harvesting the plants remaining at the house.

12 The police first drove past the house on 1 November, when two vehicles were seen parked outside. The applicant was seen placing two large bags in the rear of his van. The applicant drove away with Ms Le. The police intercepted their van a short distance away. The applicant ran away, but was apprehended shortly afterwards. The applicant and Ms Le were both arrested.

13 The police subsequently arrested Mr Do and Ms Do in the latter's car.

14 The police seized the two bags from the applicant's van which contained a combined weight of cannabis of 15.56kg. One of the bags contained 19 smaller bags, each with 460 grams of cannabis, and a further bag with 230 grams of cannabis. The second bag found in the van contained 20 bags which each held 460 grams of cannabis. The applicant's wallet contained a receipt for plant fertilisers.

15 A search warrant was executed at the Fisher Court property where the police found a total of 16.029kg of cannabis plants. This was comprised of

(a) 48 mature cannabis plants, weighing in total 15.32 kg;

(b) 45 smaller plants, weighing in total 475 grams; and

(c) further cannabis weighing about 234 grams.

16 The total weight of cannabis seized from the van and the Fisher Court property was 31.5kg. A commercial quantity is 25 kg or 100 plants or more.

17 Police interviews were conducted with the applicant and Ms Le on 1 November 2013, following their arrest. The applicant provided a no comment record of interview.

18 On 28 May 2014, the applicant provided a statement to the police, in which he relevantly set out the following details regarding the circumstances of his offending:

(a) In April 2013, he met Mr Y Van Nguyen at a friend's birthday party. Mr Nguyen asked the applicant whether he wanted to work for Mr Nguyen by acting as a 'house sitter' in relation to the growing of cannabis, for which he offered to pay the applicant $5,000 to $10,000. The applicant refused, however, Mr Nguyen asked the applicant to find someone else to assist him and also asked him to act as a 'middleman'. Under this arrangement, the applicant would be paid $500 each time he attended the house where cannabis was to be grown and $1,000 if he took the cannabis to a location in Werribee when it was ready.

(b) The applicant contacted Mr Nguyen around the end of July 2013 to advise him that he had found a crop sitter, Ms Do. A few days later, Mr Nguyen gave the applicant the location of, and a key to, the Fisher Court property. Mr Nguyen advised that everything had already been set up for the crop. Mr Nguyen told the applicant to take Ms Do to the house so that she could start the job straight away and gave the applicant a piece of paper with instructions to give to her. These instructions were subsequently provided to Ms Do.

(c) Prior to his arrest, the applicant was approached by a person who identified himself as Mr Nguyen's uncle. He advised the applicant that Mr Nguyen had been arrested but that his instructions had not changed. Mr Nguyen's uncle contacted the applicant a second time on 30 October 2013 to instruct him that the dried cannabis would be ready the following night. The applicant was told to collect the cannabis and take it to a certain location, where he would meet Mr Nguyen's uncle.

19 The applicant provided a further statement to the police on 6 June 2014, in which he identified Mr Nguyen from a photo board. The applicant indicated a preparedness to give evidence against Mr Nguyen and Mr Do.

20 The applicant offered to plead guilty to the charge of cultivating a commercial quantity of cannabis on 13 May 2014 and again on 12 June 2014. There were ongoing discussions throughout this period as to whether the applicant would make a statement and, consequently, a committal hearing was organised to clarify the applicant's role in the criminal enterprise. On 21 July 2014, Ms Do gave evidence at the applicant's committal proceeding. The committal was adjourned for a further hearing on 15 September 2014 at which time the applicant and Ms Le were committed for trial and entered guilty pleas.

21 On the hearing of the plea, the Crown indicated that the applicant's offer of assistance to act as a witness against Mr Nguyen had been assessed by the police as being of little value and that they regarded the information he had provided as unreliable. This was said to be so for the following reasons.

(a) The applicant had stated that Mr Nguyen gave him keys to the Fisher Court property around the end of July 2013, which was said to be inconsistent with the fact that Mr Nguyen had been in custody since 24 July 2013.

(b) The applicant's statement of 28 May 2014 also indicated that he had visited the Fisher Court property on a number of occasions at Mr Nguyen's request, however the timing of the visits was inconsistent with the fact that Mr Nguyen had been in custody since 24 July 2013.

(c) In his statement of 28 May 2014, the applicant provided a phone number for Mr Nguyen which did not correspond with the available records of phone numbers dialled by the applicant. The Crown conceded that it did not have any details about calls made from one mobile phone seized from the applicant.

22 The applicant was born in Vietnam. At the time of the plea, his parents resided in Vietnam. He had two brothers, one of whom lived in the United Kingdom and another who was deceased.

23 The applicant was educated to Year 12 and worked as a motor mechanic for five years before coming to Australia in 2010 on a student visa at age 22. He completed a Diploma of Dental Technology between 2010 and 2012. He applied for and was granted a Bridging 'E' visa and was unable to work or study due to the conditions attaching to that visa. As a consequence, he was dependent in part on money sent by his parents from Vietnam and otherwise on his wife's social security benefits.

24 The applicant married Ms Le in November 2012 and she sponsored his visa application. They have a son who was born in September 2012. On the hearing of the plea, counsel for the applicant described him as an involved father.

25 A report by Jeffrey Cummins, clinical psychologist, was tendered on the hearing of the plea. Mr Cummins stated that he did not consider that the applicant was suffering from any specific mental health condition at the time of the offending but that immaturity and naivety had played a role in his offending behaviour. Mr Cummins also stated that the applicant had acknowledged the wrongfulness of his behaviour and apologised for his offending.

26 Two character references from the applicant's friends were also tendered. Both of these references attested to the applicant's regret at his involvement in the offending.

27 The applicant had one relevant prior conviction for possession of cannabis, possession of methylamphetamine and possession of a controlled weapon without excuse, for which he was convicted and fined on 15 October 2012.

28 The judge stated that he did not discount the significance of the applicant's preparedness to assist authorities. The judge added that, while it could not be said that the information that the applicant had provided to the police amounted to 'high' or 'mid-value' assistance, it nonetheless warranted some reduction in the sentence that would otherwise have been imposed.[3]

29 The judge accepted that the applicant was not directly involved in tending the cannabis plants or in their harvest but stated that he attended the Fisher Court property on about five occasions, told Ms Do what to do and carried the harvested cannabis to his van to deliver it to third parties. The judge referred to the applicant's characterisation of his role as a 'middleman', which he distinguished from a mere crop sitter.[4] The judge noted that, at the time of his arrest, the applicant's wallet contained a receipt for fertilisers.[5] The judge nonetheless accepted that the applicant's involvement in the cultivation of the cannabis was properly to be regarded at the lower end of offences for commercial cultivation of a narcotic plant in the light of the number of plants and the weight of the crop.[6]

30 The judge stated that, while the applicant's plea was not entered at the earliest opportunity, it was entered at a relatively early stage.[7] The plea was an acknowledgement of wrongdoing, had utilitarian benefits and indicated a degree of remorse. Remorse was also apparent from personal references.[8]

31 The judge considered that the applicant's prospects for rehabilitation were enhanced by the absence of drug or gambling issues, his preparedness to work and his educational achievements.[9]

32 The judge referred to the applicant's prior conviction and stated that it was regrettable that he had not been deterred by it. The judge rejected Mr Cummins's assessment of the applicant as 'immature and naïve' and instead stated that the applicant had offended for financial gain, notwithstanding his conviction for drug offences some months earlier.[10] Nonetheless, the judge stated that the applicant's criminal history remained limited.[11]

33 The judge accepted that, as a consequence of a further term of imprisonment, the applicant would be somewhat isolated in custody, being separated from his wife and young child and burdened by the uncertainty which attached to his immigration status.[12]

34 The judge referred to the sentence that he had imposed on Ms Do and stated that he had taken parity considerations into account.[13] However, he stated that there were fundamental distinctions between Ms Do and the applicant, namely:

(a) the applicant's involvement was at a higher level than Ms Do, who was described as a 'crop-sitter' who had been recruited and instructed by the applicant;[14]

(b) Ms Do cooperated with authorities, including undertaking to give evidence against the applicant and Ms Le and undergoing cross-examination during the applicant's committal;[15] and

(c) Ms Do's prior good character.[16]

35 As discussed at [3] above, on 28 May 2014, Ms Do, then aged 36, pleaded guilty to one charge of cultivation of a commercial quantity of narcotic plants and was sentenced to 7 months' imprisonment (time served).

36 In imposing this sentence on Ms Do, the judge made the following remarks:

(a) The objective gravity of Ms Do's conduct was confined to that of a crop sitter rather than a principal.[17]

(b) Ms Do had made a statement to the police in which she detailed the role of the applicant and Ms Le and undertook to give evidence for the Crown. The judge described this cooperation as of 'substantial value' and stated that it warranted a very significant sentencing discount.[18]

(c) Ms Do had pleaded guilty at the first available opportunity.[19]

(d) Ms Do had a high level of insight into her offending and was genuinely remorseful.[20]

(e) Ms Do had no criminal record and had very good prospects of rehabilitation.[21] This was as a result of her remorse, cooperation with the police, her employment within the prison as a peer supporter and her insight into her offending.[22]

(f) Ms Do had received treatment in prison for depression. She also suffered from carpal tunnel syndrome, for which she required an anti-inflammatory, and diabetes, for which she had insulin injections four times a day.[23]

37 The judge also referred to counsel's submission that Ms Do's motive for becoming involved as a crop sitter was her economic plight, being dependent on social security benefits and assistance from her parents.[24]

38 The applicant submitted that the disparity between his sentence and that imposed on Ms Do was so great as to offend the parity principle. In support of this submission, the applicant relied on the following considerations.

(a) Ms Do and the applicant were both sentenced on one charge of cultivating a commercial quantity of cannabis.

(b) The gravity of the applicant's offending was less than, or at most similar to, that of Ms Do. This was because Ms Do lived at the crop house, looked after the crop and, when it was ready, harvested it and packed it. She also recruited and offered to pay Ms Le to help with the harvesting and the packing. As distinct from this, the applicant's role was limited to communicating Mr Nguyen's job offer to Ms Do, passing on Mr Nguyen's instructions to Ms Do, attending the house only five times and coming to the house to collect the packaged crop. A further comparison was made between the financial reward promised to the applicant - $500 for each visit and $1,000 for collecting the crop - and that promised to Ms Do - between $5,000 and $10,000.

(c) Ms Do pleaded guilty at the first available opportunity and the applicant did so at a relatively early stage.

(d) Ms Do's agreement to give evidence against the applicant and Ms Le should be considered in the context of the other evidence: the applicant had been caught loading the cannabis into his van and driving away from the Fisher Court property and Ms Le had also been caught in the van. The applicant had offered to give evidence against Mr Nguyen and Mr Do and his assistance was no less significant than, or at least comparable to, the assistance provided by Ms Do.

(e) The applicant's offending was motivated by significant financial need which was similar to that of Ms Do.

(f) The applicant, who was 27 at the time that the offending commenced, was younger than Ms Do, who was 35 at that time.

(g) The applicant and Ms Do had a similar background, having both been born in Vietnam and educated there to the equivalent of Year 12.

(h) Although Ms Do had no prior convictions, to the extent that the applicant had a relevant criminal history, this was accepted by the sentencing judge to be limited.

(i) The applicant's remorse and prospects of rehabilitation were not markedly different to those of Ms Do. Further, the judge had noted that the applicant's prospects of rehabilitation were enhanced by the absence of drug or gambling issues, his preparedness to work and his educational achievements.

(j) The burden of imprisonment that would be suffered by the applicant, though different to that of Ms Do, was still relevant in the light of the fact that he would be isolated in custody, separated from his wife and young child and burdened by the uncertainty which attached to his immigration status.

39 In respect of [38(b)] above, the applicant accepted that he stood above Ms Do as he had recruited her and therefore stood closer to his boss. However, he stated that his involvement was fairly limited. This was said to be demonstrated by the fact that he did not have any stake in the crop, was not involved in setting up the Fisher Court property, did not tend the plants or harvest them and was not expected to have any involvement in the sale and distribution of the cannabis. The applicant further stated that there was no evidence that he had any input into the instructions that he provided to Ms Do. The applicant characterised himself as, in essence, 'a messenger, an errand boy and a transporter'.

40 The Crown submitted that the sentence imposed on the applicant did not offend the parity principle. This was said to be because the following differences between the applicant and Ms Do justified the disparate sentences that were imposed on them:

(a) Ms Do was a needy mother of three who had the offer of accommodation available to her and a modest return for her role as a crop sitter which was over a period of many months. As distinct from this, the applicant's role was at a supervisory level, albeit not a high level, and it was accepted by the applicant on the plea that this distinguished him from a crop sitter.

(b) Ms Do entered a plea of guilty before the applicant was committed for trial. As distinct from this, it was only after his committal, where Ms Do gave evidence, that the applicant entered a plea of guilty.

(c) Ms Do provided a statement to the police implicating the applicant in the offending which was of substantial value. Further, she gave the appropriate undertaking on her plea and gave evidence at the applicant's committal and was cross-examined. As distinct from this, the applicant was of limited assistance to the police after he entered a plea of guilty.

(d) Whereas Ms Do had no prior convictions, the applicant had a prior conviction for drug and related offences and had reoffended less than 12 months after that conviction.

42 The parity principle requires that like cases should be treated alike and that if there are relevant differences, due allowance should be made for them.[25] In Green v The Queen,[26] the plurality restated the principle as follows:

In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may 'reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender'. The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen: 'the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.' The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.[27]

43 In Taleb v The Queen,[28] this Court explained the approach that a sentencing judge should adopt where a co-offender's sentence is inappropriately low as follows:

[T]he avoidance of an unjustifiable disparity between the sentence imposed on an appellant and a co-offender may require the reduction of the appellant's sentence to a level which might otherwise be regarded as at the bottom end of the range, but not to the point where the offender's sentence is wholly inappropriate or outside the range.[29]

44 In the present case, the judge expressly adverted to the parity principle in sentencing the applicant. As we have already set out at [34] above, the judge highlighted the following factors in imposing a significantly greater sentence on the applicant than the sentence imposed on Ms Do: their relative culpability; the assistance provided by Ms Do to the police; and the applicant's prior conviction. The sentence that was imposed on the applicant (2 years and 3 months' - or 27 months' - imprisonment) was 3.85 times greater than the sentence imposed on Ms Do (7 months).

45 In our opinion, an objective assessment of the comparative culpability and other relevant circumstances pertaining to the applicant and Ms Do, as set out in our summary of the parties' submissions at [38] to [40] above, does not support a disparity involving a multiple of 3.85. That disparity cannot be justified on a proper application of the parity principle; it is so great as to give rise to a justifiable sense of grievance on the part of the applicant.

46 We will first examine the three factors upon which the judge relied for the disparity and then briefly discuss the other relevant respective circumstances.

47 In relation to the relative culpability of the applicant and Ms Do, the judge was correct in concluding that the applicant's offending was more serious than that of Ms Do because he was higher up in the hierarchy of the criminal enterprise. However, the judge's remarks indicate that he understated the importance of Ms Do's role to the success of that enterprise relative to that of the applicant.

48 By describing the applicant's role as being more than a 'mere crop sitter', the judge appears to have taken the view that Ms Do was nothing more than a crop sitter. The adjective 'mere', when used for the purpose of contrasting the roles of the applicant and Ms Do, is misleading because it suggests that Ms Do's role was insignificant compared to that of the applicant. Ms Do lived at the Fisher Court property for four months and had a continuous role during that period of actively cultivating the cannabis plants and ultimately harvesting them. These tasks were her direct responsibility, as evidenced by the fact that she offered to pay Ms Le for her assistance in harvesting the crop. Ms Do followed all of the instructions that were provided to her, including weighing and packaging the harvested crop. Ms Do was integral to the cultivation of the crop and the promised remuneration of between $5,000 and $10,000 reflected this. Ms Do was aware of the nature of the plants that she was cultivating and the unlawful nature of her activities.

49 The applicant recruited Ms Do and had a supervisory role in relation to her activities. He received instructions from his 'boss', communicated these to Ms Do and took steps to ensure that she carried them out. He assisted the cultivation process by undertaking repair and other activities at the Fisher Court property. He also took possession of the harvested crop and was in the process of delivering it to third parties when his van was intercepted by the police. However, unlike Ms Do, the applicant did not directly engage in any cultivation activities at the Fisher Court property and his involvement was infrequent rather than continuous. He only visited the property briefly on about five occasions prior to the harvesting of the plants. There was no evidence that he had any involvement in the cultivation of cannabis at any other property. There was also no evidence that the applicant had any financial interest in the criminal enterprise in addition to the promised remuneration of $500 per visit to the Fisher Court property and $1,000 for delivering the harvested cannabis.

50 The remuneration that the applicant was promised was significantly less than that of Ms Do. While it cannot be gainsaid that the applicant's place in the criminal enterprise was above that of Ms Do, it was nevertheless fairly limited. On any view, the differences in the roles performed by the applicant and Ms Do could not justify a disparity in their sentences of anywhere near the level reflected in the judge's sentences.

51 In relation to the assistance that Ms Do provided to the police, it may be accepted that the information that she provided against the applicant and Ms Le and the evidence that she gave at the committal hearing assisted in securing a guilty plea from the applicant and Ms Le. Ms Do's assistance clearly warranted a significant discount to her sentence. However, the applicant also provided information to the police and offered to give evidence against Mr Nguyen and Mr Do. It is true that the police considered the applicant's information and offer of assistance as having little value. On the other hand, the police did not assert, and the judge did not find, that the applicant provided deliberately false information to the police. On the contrary, the judge found that the applicant's offer was of significance and warranted some reduction in his sentence.[30]

52 In these circumstances, while the qualitative differences in the value of the assistance that the applicant and Ms Do provided to the police justified Ms Do receiving a greater sentencing discount, those differences did not warrant the sentence imposed on the applicant being 3.85 times greater than the sentence imposed on Ms Do.

53 The third matter that the judge expressly took into account in the context of the parity principle was that, unlike the applicant, Ms Do did not have any prior convictions. The fact that Ms Do fell to be sentenced as a person with a previous good character, whereas the applicant was not, obviously justified a more lenient sentence being imposed on Ms Do. However, as the applicant had only one relevant prior conviction which involved possession rather than cultivation of illicit drugs, the judge was correct in describing his criminal history as 'limited'.[31] That criminal history certainly did not warrant a sentence being imposed on the applicant which was very significantly in excess of the sentence imposed on Ms Do.

54 It follows from the above discussion that, individually, the three factors upon which the judge relied in differentiating the sentence imposed on the applicant from the sentence imposed on Ms Do did not provide a rational explanation for the former sentence being 3.85 times higher than the latter sentence. Further, such a marked disparity cannot be justified by those factors in combination or by any other differences in the circumstances of the applicant compared to those of Ms Do.

55 As set out at [36] and [37] above, in his sentencing remarks in relation to Ms Do the judge relied on a number of mitigating circumstances, some of which were not relevant to the applicant. They included, in particular, Ms Do's physical and mental health problems. However, as demonstrated by the appellant's submissions that are summarised at [38] above, most of the mitigating circumstances that applied to Ms Do also applied to the applicant.

Ground 2: The applicant's role in the criminal enterprise

57 The applicant submitted that it was apparent from the sentencing remarks of the judge that he had treated the applicant as a middle manager in the criminal enterprise. In support of this submission, the applicant relied on the judge's remarks that he was a 'middleman', that his involvement was at a higher level than Ms Do's, the fact that he distinguished between a middleman and a mere crop sitter, and the fact that he referred to the fundamental distinctions between the roles of the applicant and Ms Do in arriving at the sentence to be imposed on the applicant. The applicant also relied on the judge's remarks that his involvement was at the lower end of offences for commercial cultivation of a narcotic plant by reference to the number of plants and the weight of the crop but not by reference to his conduct.

58 In characterising the applicant in this way, it was submitted that the judge erred by failing to account for the fact that his role was in no real sense managerial, and instead he was substantively a messenger, an errand boy and a transporter who stood to gain substantially less than Ms Do.

59 The Crown submitted that the judge never stated that the applicant was anything more than that which was put on the plea and that the judge had not mischaracterised or overstated the applicant's role.

60 In our opinion, there is no substance in the applicant's contention that the judge treated him as a 'middle manager'. The matters upon which the applicant has relied in support of Ground 2 do not disclose any sentencing error. While the judge underestimated the role of Ms Do when comparing it to the role of the applicant, the judge did not err in his description of the applicant's activities and role.

61 For the above reasons, the application for leave to appeal will be granted and the appeal allowed.

62 The sentence imposed by the judge on the applicant was not manifestly excessive. However, having regard to the sentence the judge imposed on Ms Do which we regard as low or, as the Crown described it, 'merciful' the sentence imposed on the applicant was not reasonably open in the proper exercise of the sentencing discretion because it failed to give effect to the parity principle. Having regard to the applicant's culpability and circumstances compared to the culpability and circumstances of Ms Do, he will be resentenced to 1 year and 6 months' imprisonment with a non-parole period of 1 year.

63 We declare pursuant to s 6AAA of the Sentencing Act 1991 that, but for the applicant's plea of guilty, we would have sentenced him to 2 years and 6 months' imprisonment with a non-parole period of 1 year and 6 months.

[2] Although 208 days is slightly less than 7 months, for the purposes of analysis we will treat 7 months as being equivalent to 208 days.

[3] DPP v Khoa (Unreported, County Court of Victoria, Judge Taft, 14 November 2014) [11], [25] ('Reasons').

[17] DPP v Do (Unreported, County Court of Victoria, Judge Taft, 28 May 2014) [19] ('Do Reasons').

[25] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301.

[27] Green [2011] HCA 49; (2011) 244 CLR 462, 474-5 [31] (citations omitted).

[28] [2014] VSCA 96 ('Taleb').

[29] Taleb [2014] VSCA 96, [48]. See also Green [2011] HCA 49; (2011) 244 CLR 462, 475-6 [33]; Boulton v The Queen [2014] VSCA 342, [260]; Fletcher v The Queen [2011] VSCA 4, [30]-[32]; DPP (Cth) v Peng [2014] VSCA 128, [36].

[30] See [28] above.

[31] See [32] above.

Poisons and Controlled Substances Act 1981

At a glance

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Judgment (117 paragraphs)

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