//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2016] VSCA 269
Court of Appeal (Vic)
2016-11-16
Mr J, Redlich JA, Kyrou JA
Original judgment source is linked above.
DPP v Kieawkaew and Nguyen [2016] VCC 1016
CRIMINAL LAW - Application for leave to appeal against sentence - Applicant Kieawkaew sentenced to 3 years' imprisonment for cultivating a narcotic plant in a commercial quantity and, with cumulation for other charges, to total effective sentence of 3 years and 3 months' imprisonment with non-parole period of 1 year and 6 months - Crown concessions that sentence for cultivation charge manifestly excessive and that sentence on a summary charge erroneous due to judge being misinformed about maximum penalty - Applicant Kieawkaew resentenced to 2 years and 6 months' imprisonment on cultivation charge - Total effective sentence of 2 years and 9 months' imprisonment with non-parole period of 1 year and 3 months.
CRIMINAL LAW - Application for leave to appeal against sentence - Applicant Nguyen sentenced to 3 years' imprisonment for cultivating a narcotic plant - Judge warned counsel she would not accept statements made by counsel about the respective roles of applicants regarding cultivation of narcotic plant in absence of evidence - No evidence adduced - No error by judge - Applicability of Verdins limbs 5 and 6 - Parity principle applied consequent upon resentence of applicant Kieawkaew - Applicant Nguyen resentenced to 2 years and 6 months' imprisonment with non-parole period of 1 year and 6 months.
1 On 1 July 2016, the applicants, Esma Kieawkaew (now aged 39), and Hong Quan Nguyen (now aged 36), pleaded guilty to charges arising from the cultivation of cannabis at a house in Truganina which was registered in Nguyen's name ('Truganina property').
2 Following plea hearings on 1, 6 and 13 July 2016, the applicants were sentenced on 15 July 2016[1] as follows:
Cultivating a narcotic plant - commercial quantity [DPCSA[2] s 72A]
Possess a drug of dependence (methylamphetamine) [DPCSA s 73]
1 month imprisonment as part of an aggregate for charges 2 & 3
Possess a drug of dependence (ecstasy) [DPCSA s 73]
1 month imprisonment as part of an aggregate for charges 2 & 3
Possess unregistered general category handgun [FA[3] s 7B(1)]
Commit an indictable offence whilst on bail [Bail Act 1977 s 30B]
Dealing with proceeds of crime [Crimes Act 1958 s 195]
Section 6AAA statement: 6 years' imprisonment, with a non-parole period of 3 years
Section 6AAA statement: 6 years' imprisonment, with a non-parole period of 4 years
3 Kieawkaew has sought leave to appeal her sentence on the grounds that it was manifestly excessive and that the sentencing judge erred in imposing the maximum penalty on summary charge 13 notwithstanding Kieawkaew's plea of guilty. The Crown conceded that both grounds were made out. For the reasons that follow, we have concluded that the application for leave to appeal should be granted, that the appeal should be allowed and that Kieawkaew should be resentenced as set out at [68] below.
4 Nguyen has sought leave to appeal his sentence on four grounds, namely, that the sentence was manifestly excessive and that the sentencing judge: erred in assessing Nguyen's role in the offending; misapplied the parity principle; and failed to apply Verdins[4] limbs 5 and 6. For the reasons that follow, we have concluded that the application for leave to appeal should be granted, that the appeal should be allowed and that Nguyen should be resentenced as set out at [94] below, principally on the basis that, as Kieawkaew has been resentenced to a lower sentence, the parity principle requires that Nguyen also be resentenced to a lower sentence.
5 On 30 September 2015, police executed a search warrant at the Truganina property in the presence of both applicants. The search revealed that there were two functioning hydroponic cannabis grow rooms in the Truganina property, containing a total of 69 cannabis plants at various stages of maturity in plastic pots under 600 watt light globes fitted to lighting shrouds (Kieawkaew charge 1 and Nguyen charge 1). The cannabis plants weighed 31.1 kilograms, which constitutes a commercial quantity.[5] Loose dried cannabis weighing 476.6 grams was found in various rooms throughout the Truganina property. Kieawkaew's fingerprints were found on one of the lighting shrouds in one of the grow rooms and Nguyen's fingerprint was found on an unused lighting shroud in the kitchen. Kieawkaew was holding a gardening implement and wearing a gardening glove with blackened tips when police arrived at the Truganina property.
6 The police located the following additional items which formed the basis of the remaining charges to which Kieawkaew pleaded guilty:
7 There were signs that the applicants and Kieawkaew's son were all living at the Truganina property. However, other evidence indicated that while the Truganina property appeared to be the sole residence of Kieawkaew and her son, Nguyen had for some months been dividing his time between his parents' home and the Truganina property. At the time the search warrant was executed, the applicants had resumed their intimate relationship which had broken down earlier in the year.
8 The applicants were arrested upon execution of the search warrant. Nguyen made a no comment interview. Kieawkaew was interviewed with the assistance of a Thai interpreter. She said that she had no involvement in the cultivation of the cannabis, that the plants belonged to Nguyen and that she had been forbidden from entering the grow rooms.
9 Kieawkaew has remained in custody since that date. Nguyen was granted bail following a contested committal hearing on 4 May 2016.
10 The plea hearing commenced on 1 July 2016. Neither applicant gave evidence.
11 At the plea hearing, Kieawkaew sought to rely on a different account to that which she gave to police, which was put to the judge by her counsel. Counsel said that his instructions were that the cannabis crop belonged to Kieawkaew and that she was cultivating it in order to support her ice habit. The methylamphetamine and ecstasy, although of traffickable quantities, were also said to belong to Kieawkaew for her own use. No explanation was advanced for the possession of the gun, the ammunition or the taser except that Kieawkaew was 'keeping the gun for someone'.[6] No evidence was called in support of Kieawkaew's second account and no evidence from the depositions was relied on to support either account.
12 Nguyen's version of events as put forward by his counsel was that the crop belonged to Kieawkaew and he had only become aware of its existence shortly before the execution of the search warrant. It was asserted on his behalf that he did not stand to gain any benefit from the crop and that his involvement was limited to allowing Kieawkaew to continue to cultivate the crop in the Truganina property once he had become aware of its existence.
13 Consistently with that account, Nguyen told a psychologist who assessed him, Dr Aaron Cunningham, that the crop belonged to Kieawkaew and that he felt used by her. He told Dr Cunningham that Kieawkaew was growing the crop to support herself financially, so as to avoid having to continue to work as a sex worker.
14 In relation to Nguyen's alleged lesser role in the offending, the judge raised concerns about accepting assertions from the Bar table - and in psychologists' reports - in the absence of evidence. She added that, as Nguyen was at the Truganina property, he was fixed with knowledge of the cannabis crop but not in respect of its quantity. She added that, while on the evidence before the Court she could not make any adverse findings against Nguyen as to who owned the crop, she could also not make positive findings in his favour. She emphasised that the evidence did not enable her to decide whether the crop was owned by Kieawkaew, owned by Nguyen - and Kieawkaew was 'taking the rap' for him - or owned by both of them. She reminded Nguyen's counsel that Nguyen bore the onus of proof in relation to mitigatory matters upon which he relied.[7] The judge gave counsel the opportunity to seek instructions about adducing evidence but, following a brief adjournment, counsel advised that no evidence would be called to support Nguyen's account.
15 The judge also put the issue of Nguyen's role to counsel for Kieawkaew in the following exchange:
HER HONOUR: What do I make ... of the difference between the account your client gave the police when arrested and the account she gave to [the psychologist] about whose crop it was and perhaps role, involvement, motivation and the like?
...
Was it a joint crop? Is she taking the rap for her co-accused because she has no priors for cultivation or trafficking and he does? ... Or is it indeed as she says? How can I make a decision? They're all realistic possibilities on the material before me.
[COUNSEL FOR KIEAWKAEW]: What she says to me and has maintained since I first had contact with her is 'The crop was mine'.[8]
16 At the end of the plea hearing, the judge adjourned the matter to 6 July 2016 for sentence. However, as her concern about the roles of each applicant in the offending remained, at the adjourned hearing on 6 July 2016, the judge invited the parties to provide additional information to address several issues, including why the prosecution had differentiated between the applicants in relation to the cultivation charges brought against them.[9]
17 The plea hearing was adjourned to 13 July 2016. At that hearing, the prosecutor referred to specific parts of the evidence which were said to justify differentiating between the applicants. That evidence included: that Kieawkaew was wearing a gardening glove with blackened tips and carrying a gardening implement when the police entered the Truganina property which supported an inference that she was actually tending to the crop when the police arrived; that her fingerprints were on a lighting shroud in one of the grow rooms; and that her DNA was on a snap lock bag in a bedroom.
18 In relation to Nguyen, the evidence referred to by the prosecutor was that he was present in the Truganina property at the time of the execution of the search warrant, in his pyjamas as if he had just woken up, and his fingerprint was on one of the unused shrouds in the kitchen. There was no fingerprint or DNA evidence connecting him to anything in the grow rooms.
19 The judge also asked counsel for Kieawkaew whether he could satisfy her that his client's pleas were entered in the exercise of free choice and were fully informed. The judge accepted counsel's response[10] which included the following statements:
As far as I am concerned, when [Kieawkaew] entered her pleas, she was fully informed and aware of the case against her and her options and was aware of what Mr Nguyen was going to do. I can say that, Your Honour, because I was counsel at the committal.
...
I am unaware of any pressure being brought to bear upon her by anyone.[11]
20 The plea hearing was adjourned to 15 July 2016 for sentence.
21 Kieawkaew was 39 years old at the time of sentencing. She was born in Thailand and came to Australia on a student visa in 2007 when she was 30 years old. She has a son who was born in Thailand and was 18 and living in Australia at the time of sentencing. The father of her son died when her son was three years old.
22 Soon after she came to Australia, Kieawkaew began working as a sex worker in order to support herself and send money back to her family in Thailand. She continued to work as a sex worker for much of her time in Australia and obtained permanent resident status. She married and was subjected to violence by her husband, who demanded money from her in return for not imperilling her residency status. At the time of sentencing, a divorce was pending but not finalised.
23 Nguyen was 36 years old at the time of sentencing. He was born in Vietnam and came to Australia with his family when he was six years old. He completed high school but discontinued two post-secondary courses. He was employed at McDonalds for three years and then as a factory worker for six to eight months. After that he entered a period of unemployment which lasted until the time of the commission of the offence, except for a short period of employment for around 8 months in 2008.
24 Nguyen has three children with an ex-partner of 10 years. That relationship ended in around 2010, since which time Nguyen has maintained a good relationship with his ex-partner. At the time of sentencing he saw his children regularly.
25 Kieawkaew and Nguyen met in around 2013 when Nguyen was a client of Kieawkaew, and they formed a relationship. They were both ice users when they met. Kieawkaew had commenced using ice only a short time before meeting Nguyen and her use escalated rapidly during the course of their relationship. She was using ice daily at the time of her arrest. Kieawkaew had used ecstasy, heroin, amphetamines and cocaine when she worked as a sex worker.
26 Nguyen reported to Dr Cunningham that he had a history of drug use commencing with ecstasy at around the age of 17 when he associated with a peer group that used drugs. He also reported having previously smoked one gram of ice every two to three days and cannabis about once per month. His cannabis use abated once his children were born and after that he only smoked once or twice a year when fishing with friends. Nguyen told Dr Cunningham that he first began using ice in 2010 at the age of around 30 following the end of the relationship with his ex-partner.
27 Kieawkaew and Nguyen lived for a time in an apartment in Southbank ('Southbank apartment'), then with Nguyen's parents for a time before moving to the Truganina property. Kieawkaew was the lessee of the Southbank apartment.
28 According to Kieawkaew, Nguyen became violent, paranoid and jealous. The relationship broke up for some months and Nguyen moved back in with his parents. The relationship resumed a few months before their arrest. As at the time of sentencing, the relationship was said to be over.
29 Kieawkaew had no prior convictions. The summary charge of committing an indictable offence whilst on bail (Kieawkaew summary charge 13) arose because one month before the search warrant was executed, Kieawkaew had been charged with trafficking methylamphetamine. As at the date of the plea, that charge was still pending at the Melbourne Magistrates' Court and Kieawkaew had been released on bail in relation to that charge.
30 Nguyen has a prior criminal history for drug related offences. In 2007, he was convicted of trafficking in heroin, knowingly dealing with proceeds of crime and possessing a drug of dependence and was sentenced to 2 years and 9 months' imprisonment suspended for a period of 3 years. In 2015, he was convicted of cultivating cannabis, possessing methylamphetamine and possessing a prohibited weapon. On 29 September 2015 - one day before the execution of the search warrant at the Truganina property - Nguyen was sentenced for the 2015 convictions and an 18 month community correction order ('CCO') was imposed. Those convictions arose out of the cultivation of a cannabis crop in the Southbank apartment ('Southbank charges'). Although the lease of the Southbank apartment was in Kieawkaew's name, she was not charged with any offences in relation to the cultivation of cannabis there.
31 A psychologist, Ms Gina Cidoni, reported that Kieawkaew's judgment was seriously impaired when she began offending. She described Kieawkaew as having presented as 'naïve, gullible and easily led'[12] and concluded as follows:
There was evidence of emotional disturbance with chronic depression anxiety and interpersonal sensitivity. There were also signs of thought disorder and paranoid ideation, possibly linked to her history of abuse of methamphetamine and other substances. Acute distress related to her circumstances was evident with thoughts of self-harm.[13]
32 Dr Cunningham reported that Nguyen suffered from a major depressive disorder which was causally connected to the cultivation offence and which worsened since he was remanded in custody. Dr Cunningham's report contains the following statements which are relevant to Nguyen's grounds of appeal:
Mr Nguyen meets the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) criteria for Major Depressive Disorder. He presents with depressed mood, loss of interest in pleasurable activities, fatigue, sleep disturbance, feelings of worthlessness and thoughts of death.
...
Whilst disposition is solely a matter for the courts, from a psychological perspective, Mr Nguyen would benefit from a disposition that considered his Major Depressive Disorder. In the context of his Major Depressive Disorder, Mr Nguyen presents as vulnerable to influence by peers. His depression has escalated since being remanded. He has thoughts of death and sleep disturbance.[14]
33 In a supplementary report provided by Dr Cunningham after he was requested to comment on the lack of reference to a criminal history in his report, he stated the following:
Mr Nguyen's criminal history was not referred to in my report because the priors were not provided. However, when asked, Mr Nguyen informed me that he had prior offences for cultivation. In my opinion, this information did not alter my assessment of Mr Nguyen's mental state. In my opinion, Mr Nguyen's priors were consistent with his history of drug abuse and association with drug using peers.[15]
34 At the plea hearing on 1 July 2016, counsel for Nguyen relied on Verdins[16] limbs 5 and 6, namely, that a sentence of imprisonment would weigh more heavily on Nguyen than on a person in normal health (the fifth limb) and that there is a serious risk of imprisonment having a significant adverse effect on Nguyen's mental health (the sixth limb).[17]
35 At the time of sentencing, confiscation proceedings were pending in respect of the Truganina property. Nguyen had remained drug-free since his release on bail on 4 May 2016.
36 Kieawkaew faced the possibility of deportation from Australia if sentenced to more than 12 months' imprisonment.
37 In her reasons for sentence, the judge addressed the concerns she had raised during the course of the plea hearing on 1 July 2016 about what she considered to be 'an air of artificiality or unreality about what was put on behalf of both defendants about their involvement and their respective [roles]'.[18] The judge described the problem as follows:
Despite the Bar table assertions on behalf of both defendants, I had doubt the crop was solely Ms Kieawkaew's and she was solely in possession of the firearm, ammunition and taser, having regard in particular to the ownership of the [Truganina property] by Mr Nguyen, the manner in which the house was set up to grow the crop, the presence of both defendants when the search warrant was executed, to what little I had been told about the Southbank charges, and the absence of evidence about what was put on Mr Nguyen's behalf on his plea in relation to the Southbank charges.
I was concerned the only basis for distinguishing between the two defendants so as to lead the prosecution to accept a plea of guilty on cultivate simpliciter for Mr Nguyen, whilst proceeding with a plea of guilty to a commercial quantity cultivate for Ms Kieawkaew, came from Bar table assertions on Mr Nguyen's behalf about his knowledge and involvement. I was left with a sense of unease that Ms Kieawkaew had been taking sole responsibility for what was, at the very least, a shared venture.[19]
38 In the light of the additional information provided at the adjourned plea hearing on 13 July 2016 referred to at [17]-[19] above, the judge concluded that apart from the 'overwhelming inference' that cultivation of such a large crop was for gain, she could make no findings adverse or favourable to either applicant as to their individual motives or[20]heir respective roles.20 The basis for this conclusion was set out in the following reasons, which are the subject of ground 1 of Nguyen's grounds of appeal:
[T]he evidence does not permit me to make a positive finding in respect of intended profit share, ownership of or involvement in the cultivation of the crop on any day, other than the date of the raid. ... Nor does the evidence or the law permit me to make a positive finding of intention to cultivate a commercial quantity, as against Mr Nguyen, by reason of his knowledge of the existence of the crop and his presence on the day of the raid.
However, insofar as it is put as a mitigating factor that Mr Nguyen's role is confined to knowledge on the day of the raid that Ms Kieawkaew was cultivating a crop for her own benefit and that he did not stand to benefit in any way, Mr Nguyen has not discharged his onus of satisfying me on the balance of probabilities that his knowledge and role was so confined. Nothing in the materials or the submissions now provided has altered that view.
So far as Mr Nguyen's role is concerned, I am satisfied ... that he, together with Ms Kieawkaew, a woman with whom he was in a relationship of some sort for two years, was present at a house owned by him and in which two bedrooms were set up in a professional manner as grow rooms for a large crop of marijuana in various stages of maturity and where in other parts of the house, other items and paraphernalia connected with the cultivation of marijuana were present. I must view that in the context of Mr Nguyen having been sentenced only the previous day for cultivation of a crop of marijuana in an apartment in which he and his co-defendant had lived for some time and which was rented in her name, before it was turned into a grow house for a marijuana crop, which he claimed was his own and cultivated in order to pay for his own drug habit.
... The evidence does not permit me to make a finding that the crop was, in truth, Mr Nguyen's, or that he and Ms Kieawkaew were co-owners of it, or that they were to share, in any percentage, in the proceeds of the cultivation of the crop. Nor does the evidence permit me to find that Ms Kieawkaew is taking responsibility for possession of weapons which were Mr Nguyen's, or jointly possessed. The evidence does not permit me to make findings adverse to Mr Nguyen about those matters.
However ... there is no evidence which supports the acceptance, that is being satisfied on the balance of probabilities, of the matters asserted as mitigatory in respect of Mr Nguyen's knowledge of the crop, and his role. Insofar as the matters asserted on Mr Nguyen's instructions as to Ms Kieawkaew's role, are to be treated as mitigatory when sentencing him, that is, that it was her crop, grown to provide funds to support her ice habit, I am not satisfied on the balance of probabilities for the purposes of sentencing Mr Nguyen, of those matters.
I should add, I am not prepared, on the evidence and having regard to the matters I have set out about the manner in which the cases were presented, for the purposes of sentencing Ms Kieawkaew, to find, that is to be satisfied, beyond reasonable doubt, that she was solely responsible for the crop and stood solely to benefit from it.[21]
39 The judge stated that denunciation, just punishment and deterrence were significant sentencing considerations in these circumstances because the cannabis crop was large and well cultivated, and 'people who participate at any level in the cultivation of such crops, must understand that they and others who are tempted to do likewise, will be punished.'[22]
40 The judge then addressed the matters relating to each applicant in turn.
41 The judge described Kieawkaew as 'poorly educated and without family or supports in this country, apart from her son.'[23] She took into account the fact that as Kieawkaew had intended to remain in Australia and 'make [a] life here', she suffered the punishment of uncertainty about whether she would be allowed to do so and the fear that she would lose her opportunity to have a permanent future in Australia.[24] Further, as Kieawkaew's son expressed a desire to remain in Australia, she also faced the uncertainty of whether she would be able to enjoy a future with her son in Australia.[25]
42 The judge considered that imprisonment had been and would continue to be burdensome for Kieawkaew and that she was isolated because of her poor English, particularly because there were no other Thai speakers in custody.[26] Her Honour noted that despite this, Kieawkaew had completed various courses and worked in prison industries during her time in custody. The judge accepted that Kieawkaew had tried to make the best of her time in custody and had expressed gratitude that her arrest and remand had enabled her to stop using ice.[27]
43 The fact that Kieawkaew may have cultivated the cannabis in order to support her ice habit or avoid the financial need to engage in sex work was not taken into account in mitigation by the judge.[28]
44 The judge considered that as she was a first time offender and a vulnerable and isolated woman, Kieawkaew's culpability was at the lower end of the scale. Her Honour also said that although the cultivation was of a commercial quantity, it was also at the lower end of the scale because it lacked the hallmarks of a sophisticated ring, exploitation of others and related criminal activity that was often associated with large scale professional commercial quantity cultivations.[29]
45 The judge considered that the consequences already visited upon Kieawkaew counted as significant personal deterrents and that her prospects of rehabilitation were good.[30] In relation to the other offences, the judge considered it likely that Kieawkaew possessed the other drugs for her own use and that she was able to buy them in greater than single use quantities because of her cultivation activities.[31]
46 Her Honour described the possession of a firearm as 'concerning' even if Kieawkaew was only looking after the gun for someone else. However, the judge did not find that possession of the firearm or the taser was for a purpose associated with protection of the cannabis crop, which she said was often an aggravating feature of cases involving cultivation and firearm or taser possession.[32] The judge treated the proceeds of crime charge as associated with the cultivation charge and considered that being denied bail was substantial punishment for the charge of committing an offence whilst on bail.[33]
47 According to the judge, Kieawkaew's position was to be distinguished from that of Nguyen because, although their charges were different, Kieawkaew did not have any prior convictions while Nguyen had two serious drug-related convictions. On that basis, the judge considered that '[n]ormal considerations of parity do not apply.'[34]
48 In relation to Nguyen, the judge stated that it was relevant that he had been sentenced only the previous day for convictions relating to the cultivation of a cannabis crop which he had claimed was his own (the Southbank charges).[35] These convictions, and the earlier serious drug-related convictions, meant that specific and general deterrence were to be given weight.[36] Further, the judge noted that Nguyen was aware at the time of the imposition of the CCO that he could not commit any further offence punishable by imprisonment during the term of the CCO and at the same time he was aware that the cannabis crop was being cultivated in the Truganina property.[37]
49 The judge described the crop as toward the higher end of the scale for the charge of cultivation simpliciter in terms of the number and weight of the plants.[38]
50 The judge accepted the utilitarian value of Nguyen's guilty plea, although nothing further was put on his behalf to demonstrate remorse.[39]
51 In relation to Nguyen's prospects of rehabilitation, the judge was told that as at the time of sentencing for the Southbank charges, Nguyen was drug-free and had remained drug-free since that time despite the fact that there were no drug rehabilitation conditions attached to the CCO. He had not been charged with any subsequent offences. He continued to have the support of his parents who were prepared to have him live with them and facilitate regular contact with his children.[40]
52 Her Honour had concerns about the accuracy, truthfulness and reliability of some of the matters referred to in Dr Cunningham's report (which was the basis of most of the biographical material advanced on behalf of Nguyen at the plea) and 'real concerns about the reliability of the opinions that he formed'.[41] In particular, the judge was concerned about the lack of reference in Dr Cunningham's report to Nguyen's prior convictions, and the statement in his supplementary report to the effect that they were not relevant.[42] The judge concluded that she could not be satisfied that there was a causal connection between Nguyen's offending and any depressive disorder suffered by him which would moderate the weight to be given to general or specific deterrence, or affect the manner in which the sentence ought be served.[43] Accordingly, the judge did not make any further reference in her reasons to the depressive disorder or the impact that a term of imprisonment may have on Nguyen as a result of it.
53 In sentencing Nguyen, the judge stated that 'the sentencing considerations affecting [him] are very different from those affecting Ms Kieawkaew and therefore ... normal parity considerations do not apply.'[44]
54 We turn to Kieawkaew's application for leave to appeal.
55 Kieawkaew has sought leave to appeal her sentence on the following grounds:
(a) The finding that the Applicant's moral culpability was at the lower end of the scale;
(b) The finding that the offending was to be characterised as falling at the lower end of the scale for cultivation of a commercial quantity of cannabis;
(c) The finding that imprisonment would be more burdensome;
(d) The finding that the [Applicant] had good prospects of rehabilitation.
Crown concession that Kieawkaew's ground 2 is made out
56 In relation to ground 2, the Crown conceded that, having been advised incorrectly by the prosecutor that the maximum penalty for summary charge 13 was 12 months' imprisonment when it was in fact 3 months' imprisonment, the judge erred in imposing a sentence of 3 months' imprisonment. This was said to be because the judge imposed the maximum term and thus inadvertently failed to apply any discount for Kiewakaew's guilty plea.
57 The Crown's concession was properly made. Clearly, the sentence imposed on summary charge 13 must be varied regardless of whether the orders for cumulation and the total effective sentence are altered.[45]
58 Kieawkaew submitted that, in the light of a number of positive findings made by the judge, the sentence on charge 1, the total effective sentence and the non-parole period were manifestly excessive. Those positive findings comprised the four matters incorporated within ground 1 and the following:
59 In its oral submissions, the Crown departed from the position set out in its written case that the sentence imposed on charge 1 was 'well within the sentencing range'. After initially submitting that that sentence was at the high end of the range, counsel for the Crown conceded that, having regard to current sentencing practice and Kieawkaew's circumstances, the sentence was manifestly excessive.
60 Counsel for the Crown relied on a table of cases decided by this Court since 2007 which involved the offence of cultivating a narcotic plant in a commercial quantity. The cases in the table and in the Crown's written case which concerned a crop of similar size to the one in the present case (69 cannabis plants weighing 31.1 kilograms and 476.6 grams of loose dried cannabis) where the accused pleaded guilty included the following:
61 The table also included the following cases involving the offence of cultivating a narcotic plant in a commercial quantity where the accused pleaded not guilty:
62 Two of the cases referred to at [60] above involved sentences of 3 years' imprisonment[63] In Tabone63 the cultivation in question was described as a 'commercial enterprise ... for personal gain' and involved two locations and nearly double the number of cannabis plants involved in the p[64]sent case.64 In the 2010 [65]uyen case,65 the quantity of cannabis cultivated was approximately three times the commercial quantity and the offending involved two[66]roperties.66 Those properties had been set up as professional 'crop houses' for the purpose of making money from the cultivation, as compared to the Truganina property which served as the family home. Further, the offending extended over three and a half months rather than for a single day as was the case wit[67]Kieawkaew.67
63 The 2013 Nguyen case referred to at [61] above involved a sentence of 5 years' imprisonment imposed following trial for cultivation of large numbers of cannabis plants. The offender was the principal offender in a joint criminal enterprise involving a very sophisticated commercial cultivation operation directed to financial gain conducted over four premises, three of which had been leased for the purpose of the operation. The sentencing judge did not order any cumulation in respect of the sentences of 5 years' imprisonment for each of the four charges of cultivation of cannabis in a commercial quantity. This meant that the offender was required to serve 5 years' imprisonment for all four charges.
64 There is much to be said for the Crown's initial position that the sentence of 3 years' imprisonment imposed on Kieawkaew for charge 1 was at the high end of the range but not manifestly excessive. As her counsel readily conceded on the appeal, she was more than a 'crop sitter'. The crop was large and the set up at the Truganina property involved some planning. Further, contrary to Kieawkaew's submissions, in fixing the sentence, the judge gave careful attention and considerable weight to the mitigating circumstances upon which Kieawkaew relied.
65 However, the cases to which we have been referred indicate a clear practice of sentences of less than 3 years' imprisonment being imposed on a plea of guilty for cultivation of crop sizes that were similar to - and in some cases substantially greater than - the present case. Having regard to this practice and to the significant mitigating circumstances relied on by Kieawkaew, we will, with some hesitation, accept the Crown's ultimate concession that the sentence imposed on charge 1 was manifestly excessive.
66 In Nam Son Nguyen v The Queen,[68] a 2016 decision unrelated to the present case and the Nguyen cases referred to at [60]-[63] above, Redlich JA (with whom Tate and Whelan JJA agreed) stated that current sentencing practice in relation to the offence of cultivating a narcotic plant in a commercial quantity does not reflect the objective seriousness of mid category offending having regard to the sentencing regime and the maximum penalty and does not reflect consistency in the a[69]lication of principle.69 Accordingly, the Court indicated that, for the immediate future, sentencing courts must, by increments, increase the sentences for mid category offending so that 'the range of sentences is uplifted and substa[70]ially expanded'.70
67 It was common ground on the appeal that the principles outlined by this Court in Nam Son Nguyen have no application to the sentence imposed on Kieawkaew. This is because Nam Son Nguyen was published one month after Kieawkaew was sentenced. Had Nam Son Nguyen been applicable to Kieawkaew, it would have precluded a finding that the sentence imposed on her for charge 1 was manifestly excessive.
68 Having regard to our acceptance of the Crown's concessions that the sentence on charge 1 was manifestly excessive and that the judge erred in relation to the sentence on summary charge 13, Kieawkaew stands to be resentenced. In the light of current sentencing practice applicable to Kieawkaew and the significant mitigating circumstances in her favour, we will resentence her as follows:
1 month imprisonment as part of an aggregate for charges 2 & 3
1 month imprisonment as part of an aggregate for charges 2 & 3
69 But for Kieawkaew's plea of guilty, we would have sentenced her to 5 years' imprisonment with a non-parole period of 2 years and 6 months.
70 We will now consider Nguyen's application for leave to appeal.
71 Nguyen has sought leave to appeal his sentence on the following grounds:
Ground 1: The learned sentencing judge erred in assessing the applicant's role in the offending and, as a consequence, erred in assessing the objective gravity of his offending and his moral culpability. Particulars:
(a) Her Honour erred by not sentencing the applicant on the basis that his involvement was limited to allowing [Kieawkaew] to cultivate cannabis at his property;
(b) Her Honour erred by not sentencing the applicant on the basis that he did not stand to benefit financially from the cultivation.
Ground 2: The learned sentencing judge erred by not applying, or misapplying, the parity principle. Particulars:
(a) Her Honour erred by concluding, 'normal parity considerations do not apply'.
(b) The sentence imposed, 3 years' imprisonment, gives rise to a justifiable sense of grievance in light of the sentence imposed on [Kieawkaew] on the charge of cultivating a narcotic plant in not less than a commercial quantity.
Ground 3: The learned sentencing judge erred by not placing weight in mitigation of sentence on the applicant's major depressive disorder. Particulars:
(a) Her Honour erred by not sentencing the applicant on the basis that he had a major depressive disorder at the date of sentencing that could mean that a sentence of imprisonment would weigh more heavily on him than it would on a person in normal health.
(b) Her Honour erred by not sentencing the applicant on the basis that there was a serious risk of imprisonment having a significant adverse effect on his mental health.
Ground 4: The sentence imposed and the non-parole period fixed are each manifestly excessive.
Nguyen's ground 1: Role in cultivation of crop
72 During oral submissions, Nguyen submitted that, by not making a finding that he had no beneficial interest in the crop, the judge implicitly made the opposite finding. He also submitted that the judge had in effect found that Nguyen had participated equally in the crop, though unaware of the quantity of the crop, and that that finding is reflected in the sentence imposed. According to Nguyen, those findings were not reasonably open in the light of the evidence and the submissions on the plea. He referred to the following matters in his written case to support his submission that the applicants' respective roles were as put forward on the plea:
[Kieawkaew] was living at the [Truganina] property, where the cannabis informing her offending and [Nguyen's] offending was cultivated. She pleaded guilty to cultivating a narcotic plant in not less than a commercial quantity. Through her plea, she admitted an intention to cultivate a commercial quantity of cannabis. She told a psychologist that the cannabis at the property was hers and that she had cultivated it in order to fund her drug addiction. ... The evidence suggested that [Kieawkaew] was tending to the crop when police executed the search warrant. Her fingerprints were on a lighting shroud that was in one of the rooms where cannabis was cultivated. She was represented through the committal and plea proceedings by experienced counsel. She frankly conceded through her counsel that the crop was hers.
[Nguyen], on the other hand, had not been living exclusively at the [Truganina] property. No forensic evidence linked him to equipment that was being used in the cultivation. He told a psychologist that he knew that [Kieawkaew] was growing cannabis. He submitted through his counsel that while he allowed [Kieawkaew] to cultivate at his property, he did not stand to benefit financially from that offending.[71]
73 Nguyen also referred to the following in support of his contention that the judge erred in relation to his and Kieawkaew's roles: Kieawkaew was not pressured to accept responsibility for Nguyen's conduct; Kieawkaew's admissions were freely made; it was not reasonably open to deduce that the applicants' admissions on the plea and their respective disclosures to psychologists were 'anything other than frank and genuine'[72] and the evidence did not permit a finding that the crop belonged to Nguyen or that Nguyen was to profit from the crop.
74 Nguyen also contended that the fact that neither applicant gave evidence as to their respective roles at the plea hearing was no bar to acceptance of their submissions. In support of this contention, Nguyen relied on R v Storey,[73] in which this Court said that judges 'have always relied heavily on what is asserted from the bar table' and that there was 'no reason why that practice should not continue.'[74] During oral submissions, Nguyen submitted that his offending was confined to aiding and abetting Kieawkaew's criminality because he knew that the cannabis crop was being cultivated at his premises (the Truganina property) and he allowed that activity to continue. He contended that, in the absence of other evidence that he was involved in the crop, it was not open to the judge to reject the statements made by counsel from the Bar table about the roles of Kieawkaew and Nguyen, including, in particular, the admission made on behalf of Kieawkaew by her counsel that the crop was hers.
75 By erring in her assessment of the relative roles of the applicants, Nguyen submitted that the judge erred in assessing the objective gravity of his offending and his moral culpability.
76 During oral submissions, counsel for Nguyen stated that it cannot be inferred from Nguyen's guilty plea that he had any financial interest in the crop or any knowledge of the size of the crop. Counsel submitted that the judge had rejected a clear admission as to sole responsibility that had been given by Kieawkaew's counsel on instructions and that the judge was not entitled to do so. However, we note that the admission which is set out at [15] above was that Kieawkaew's consistent instructions to her counsel were that the crop was hers rather than that she was solely responsible.
77 The Crown submitted that the judge was not obliged to accept facts advanced from the Bar table which were not the subject of evidence and that it was open to the judge to decline to make findings that were not supported by the evidence.[75] This was especially because, so it was said, Nguyen declined the judge's invitation to call evidence relating to his role in the cultivation of the cannabis crop and whether he had any financial interest in it.
79 This Court made clear in Storey[76] and Vozlic[77] that, while a sentencing court may accept statements made from the Bar table on behalf of an accused which are not challenged by the prosecutor, it is not obliged to do so. Clearly the court should not do so if the circumstances indicate that there is a considerable risk that the instructions on which the statements are based are unreliable. The same approach would apply to other statements made by an accused out of court, such as a statement recorded in a psychologist's report.
80 In the present case, consistent with the approach sanctioned by this Court in Vozlic,[78] the judge informed counsel for Nguyen in unequivocal terms that, in the light of the uncontested facts, she was not prepared to accept statements made by counsel on instructions or statements made by Nguyen to Dr Cunningham concerning who owned the cannabis crop, who had a financial interest in it and the respective roles of Nguyen and Kieawkaew in relation to it. She gave counsel ample opportunity to obtain instructions from Nguyen about the giving of evidence in relation to these matters and a forensic decision was made not to call such evidence. In these circumstances, the judge did not err in refusing to accept exculpatory statements on these matters which were not supported by evidence or in deciding that she could not make any findings at all on those matters.
81 We reject Nguyen's submissions that the judge, in effect, made adverse findings against him in relation to ownership, financial interest and involvement in the cannabis crop. The judge simply decided that she could not make any findings at all on these matters and Nguyen could not rely, as a mitigating factor, on a favourable finding that the cannabis crop belonged to Kieawkaew and that he had no financial interest or any other involvement in it other than allowing her to use the Truganina property to cultivate the crop.
82 Nguyen submitted that the judge misapplied the parity principle, and in particular, erred in her conclusion that 'normal parity considerations do not apply' in this case.[79] Nguyen submitted that by that statement, the judge demonstrated that she did not give any weight - or gave only marginal weight - to the parity principle in the instinctive synthesis. The imposition of the same sentence on Nguyen as that imposed on Kieawkaew was said to give rise to a justifiable sense of grievance.
83 Nguyen submitted that parity was a relevant sentencing consideration and that its application required that disparate sentences be imposed on the applicants given the differences in their offending. The fact that Nguyen's sentence was not meaningfully less than Kieawkaew's was said to be unjust, for reasons including that: the difference in the respective maximum penalties was 10 years; the fact that by her plea Kieawkaew admitted an intention to cultivate a commercial quantity of cannabis while Nguyen had no such intention; general deterrence fell to be given greater weight in Kieawkaew's case; while a CCO had been imposed on Nguyen the day before the search warrant was executed, Kieawkaew was on bail in relation to a charge of trafficking in methylamphetamine; and if ground 1 of the grounds of appeal were to be allowed, there would be significant differences between the applicants' respective roles in relation to the cultivation. While he accepted that Kieawkaew did not have prior convictions, as he did, he submitted that he was not to be punished again for crimes that he had previously committed and for which he had been sentenced.
84 Nguyen submitted that neither the differences in their personal circumstances, nor the fact that they pleaded guilty to different charges, rendered the parity principle inapplicable to the applicants.
85 The Crown submitted that the judge properly applied the parity principle and was entitled to differentiate between Nguyen and Kieawkaew because of their dissimilar personal circumstances. According to the Crown, Nguyen fell to be sentenced for a crop that was at the higher end of the scale in relation to cultivation simpliciter and Kieawkaew fell to be sentenced on the basis that the offence was at the lower end of the scale for cultivating not less than a commercial quantity. It was open to the judge, so it was said, to sentence the applicants in the way she did, particularly in the light of Nguyen's conviction for the Southbank charges on the day prior to his arrest at the Truganina property.
86 The Crown submitted that if this Court were to significantly reduce Kieawkaew's sentence on charge 1, no reduction should occur in relation to Nguyen's sentence because there were fundamental differences between their circumstances. According to the Crown, Nguyen's criminal history in relation to drug offences was significant and called for specific deterrence, whereas Kieawkaew fell to be sentenced as a first time offender. The Crown relied on Jospeh v The Queen[80] for the proposition that different antecedents can justify different sentences.
87 In our opinion, the judge's statement that 'normal parity considerations do not apply' was intended to convey no more than that, having regard to the significant mitigating circumstances that applied to Kieawkaew but not Nguyen, the parity principle did not require that his sentence be significantly lower than her sentence on charge 1. In particular, Nguyen's significant criminal history - including his conviction for cultivating cannabis and possessing methylamphetamine and a prohibited weapon for which he was sentenced on the day prior to his arrest at the Truganina property - required significant weight to be given to specific deterrence whereas this consideration was less relevant to Kieawkaew. Further, the judge's decision not to make any findings about the roles of Kieawkaew and Nguyen in relation to the cannabis crop - including who owned it or had a financial interest in it - was clearly relevant to the application of the parity principle. The sentence imposed on Kieawkaew on charge 1 and the sentence imposed on Nguyen reflect a correct application of the parity principle rather than a failure to apply it or a misapplication of it. It follows that ground 2 is not made out.
88 However, the parity principle needs to be reconsidered in the light of our reduction of Kieawkaew's sentence on charge 1 from 3 years' imprisonment to 2 years and 6 months' imprisonment. Further, our conclusion that the judge was right not to distinguish between the roles of Kieawkaew and Nguyen in relation to the cannabis crop must inform the application of that principle. Contrary to the Crown's submission, the inability to distinguish between the roles of Kieawkaew and Nguyen requires that the reduction in Kieawkaew's sentence on charge 1 must result in some reduction in Nguyen's sentence otherwise a justifiable sense of grievance would arise.[81] This is reflected in the resentencing of Nguyen at [94] below.
89 Nguyen submitted that the judge erred because she did not address the fifth or sixth limbs of Verdins[82] and accordingly did not place weight in mitigation of sentence on either of those considerations. The error was said to arise for the following reasons:
(a) The judge did not conclude that Nguyen did not have a major depressive disorder.
(b) Dr Cunningham's opinion that Nguyen met the critera for a major depressive disorder was soundly based and the foundation of that opinion was adequately explained.
(c) The factual basis of Dr Cunningham's opinion was 'satisfactorily established' and not otherwise contradicted.
(d) The judge did not provide reasons for not placing weight on the two Verdins limbs that had been pleaded in mitigation.
90 In its oral submissions, the Crown departed from the position outlined in its written case that Nguyen had not made out ground 3. Counsel for the Crown conceded that the judge had erred by not taking into account the fifth and sixth limbs of Verdins but submitted that no different sentence should be imposed.
91 In our opinion, the Crown's concession was properly made. Dr Cunningham's statement that Nguyen's 'depression has escalated since being remanded'[83] provided an evidentiary basis for Nguyen to rely upon the fifth and sixth limbs of Verdins. As Nguyen relied on those limbs, the judge should have addressed them in her sentencing remarks. However, as Dr Cunningham's bald assertion was not the subject of detailed elaboration or explanation in his report, the judge would have been justified in giving little or no weight to those limbs. This is particularly so in the light of the judge's extensive and justified criticisms of Dr Cunningham's report.
92 Counsel for Nguyen correctly described ground 3 as not being 'a game changing sentencing consideration'.
93 The parties' submissions on whether or not the sentence and non-parole period imposed on Nguyen were manifestly excessive drew heavily on their submissions on grounds 1, 2 and 3. As we have concluded that ground 3 is made out and as we must take parity into account in the manner explained under ground 2, it is not necessary for us to consider ground 4.
94 Having regard to the matters discussed under grounds 1, 2 and 3, we will resentence Nguyen to 2 years and 6 months' imprisonment and fix a non-parole period of 1 year and 6 months.
95 But for Nguyen's plea of guilty, we would have sentenced him to 4 years and 6 months' imprisonment with a non-parole period of 2 years and 9 months.
[1] DPP v Kieawkaew and Nguyen [2016] VCC 1016 ('Reasons').
Kieawkaew & Nguyen
The Queen [2016] VSCA 269