Le v Regina

Court of Criminal Appeal (NSW)|2019-06-17|Before: Bathurst CJ, Price J, Adams J

Judgment

BATHURST CJ: For similar reasons to those given by N Adams J in her judgment, I concurred in the making of the orders on 17 June 2019 refusing the applicant leave to appeal against sentence.
PRICE J: I agree with the reasons of N Adams J.
N ADAMS J: On 17 June 2019, the Court made orders refusing the applicant, Mr Hai Long Le, leave to appeal against the sentence imposed on him for cultivating not less than a large commercial quantity of a prohibited plant, namely cannabis, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA). These are my reasons for joining in the Court's orders on that day.
On 9 May 2017, the applicant was arrested along with his co-offender, Mr Tuan Anh Le, at a house in Bonnyrigg. Police discovered 223 cannabis plants when the house was raided that day. The applicant made admissions to police at the scene as to being the caretaker of the crop during a "walk-through" recording.
Taking into account two Form 1 offences, his Honour Judge Townsden sentenced the applicant to a non-parole period of 2 years and 4 months to commence on 9 May 2017 and to expire on 8 September 2019, with an additional term of 1 year and 9 months to commence on 9 September 2019 and to expire on 8 June 2021. The sentencing judge made a finding of special circumstances, and the ratio of the non-parole period to the head sentence was 57.1 percent. An identical sentence was imposed on his co-offender.
The offence contrary to s 23(2)(a) of the DMTA carries a maximum penalty of 20 years imprisonment and/or a fine of 5000 penalty units (s 33(3)(b) of the DMTA) and a standard non-parole period of 10 years imprisonment.
The applicant makes no complaint as to the severity of the sentence imposed. Rather, the sole ground of appeal was that the sentencing judge failed to take into account his admissions at the time of arrest as either evidence of assistance to authorities under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) or, alternatively, as an indication of remorse under s 21A(3I) of the Sentencing Act.

Factual background

In sentencing the two offenders, the Court proceeded on a Statement of Agreed Facts, of which the following is a summary.
On 8 May 2017, police applied for and were granted a search warrant at Fairfield Local Court for the premises of 2 Rowany Close, Bonnyrigg, which is a five-bedroom, single-storey house. Other than two mattresses located near the front door, the house was devoid of furniture.
At 9:00 am the next day, police attended the address. Both offenders were present. The applicant opened an inner wooden door for police, but left the external front security door locked. Police then forced entry through the external security door of the location and executed the search warrant. The applicant was detained inside the living room of the house. As police entered the premises, the co-offender ran out the back door of the house and scaled several fences of bordering houses. Police pursued him on foot and apprehended him in a neighbouring property.
Upon entering the premises police observed that five rooms had been converted to accommodate a sophisticated hydroponic system. The rooms contained various light shades, light globes, watering systems, extraction fans and cannabis plants at various stages of growth.
Police also located various electronic transformers, electrical cables, bags of soil and drums of liquid fertiliser. Several temporary walls were installed in the premises to allow for more ground area to cultivate cannabis. Police seized a number of items used in the cultivation of cannabis, including 113 light shades, 152 transformers, 129 globes, 3 power boards.
In the living room of the house police located a number of personal items belonging to the applicant and co-offender including travel luggage, membership and bank cards in the name of the applicant and two mobile phones, a wallet and shoes belonging to the co-offender.
Representatives from Ausgrid Energy attended the location and rendered the premises safe. During the inspection of the property a bypass was identified to be powering unmetered electricity to the sophisticated hydroponic setup. This was disconnected and the electricity supply was rendered safe.
A representative from the Department of Primary Industries inspected the plants in the grow rooms and issued a certificate pursuant to s 43 of the DMTA for a total of 223 cannabis plants. The plants seized were at varying stages of growth with 40 of them being over a metre in height and 183 under a metre. The potential street value for the total number of plants seized was $566,000.
Police also located two large resealable bags containing cannabis in a freezer inside the house. The cannabis was later weighed and found to be 370 grams, which is above the trafficable quantity. The cannabis seized consisted of loose cut leaves.
The applicant provided police with a walk-through of the premises identifying numerous items and making admissions to living at the premises to cultivate cannabis for the past six months. This walk-through was electronically recorded. When questioned by police in relation to his role, the applicant advised that he had been hired to maintain the plants, including watering and fertilising the plants, and move them to bigger pots as they grew. During the conversation with police he stated: "I just take care of this. They hire me for [sic]." He also said, "I ah everyday water" and "... when it grow up you have to change from the small pot to the bigger pot". He denied ever trimming the leaves of the plants.
He told police that he had "no idea" who set up the electricity bypass and that everything was set up before he came.
His co-offender declined to answer questions.
The bulk hydroponic equipment seized by police was forensically examined for fingerprints. A fingerprint identified as belonging to the applicant was located on a lampshade located within the premises. A number of fingerprints identified as belonging to his co-offender were also located on six different lampshades, one batwing shade, two transformers and one "Sight globe".
The applicant and co-offender were arrested and cautioned. They both declined the opportunity to participate in an electronically recorded interview.

Proceedings on sentence

The applicant pleaded guilty in the Campbelltown Local Court on 21 February 2018 and was committed for sentence. He asked that the following two matters be taken into account on a Form 1: 1. Use electricity without authority between 10 November 2016 and 9 May 2017, contrary to the Electricity Supply Act 1995 (NSW) s 64(1) (maximum penalty: 100 penalty units and/or 5 years imprisonment). 2. Supply prohibited drug (cannabis) on 9 May 2017, contrary to s 25(1) of the DMTA (maximum penalty a fine of 2,000 penalty units or imprisonment for a term of 10 years, or both: s 32(1)(h) of the DMTA).
The proceedings on sentence were heard on 26 June 2018 at the Campbelltown District Court before Judge Townsden. The applicant's proceedings on sentence were conducted concurrently with those of his co-offender.
The Crown tendered a bundle which included the Crown Sentence Summary, the Agreed Facts and the applicant's criminal and custodial history (Exhibits A, B1 and B2). The Crown also provided written submissions on sentence.
On behalf of the applicant, a psychological report of Ms Fritchley dated 24 June 2018 was tendered (Exhibit 1), together with a testimonial from Ngoc Minh Phan (Exhibit 2) and a custodial employment record for the applicant (Exhibit 3).

The applicant's subjective factors

The applicant did not give evidence at the hearing on sentence. He relied on a report prepared by psychologist Ms Clara Fritchley to put his subjective case before the court.
The applicant was born on 30 October 1991. He is 27 years of age. He is a Vietnamese foreign national with no prior criminal record. His parents funded him to come to Australia to study in an English speaking country so he could return to Vietnam to work in the family business. Upon arrival in Sydney he first undertook an intensive English course before beginning a diploma and then transferring to a Bachelor of Applied Finance at Macquarie University from which he graduated. He then undertook further study at the University of Western Sydney to graduate with a double major in accounting.
By this stage the applicant's parents wanted him to return to Vietnam to work in the family business. The applicant decided he would prefer to stay in Australia permanently. He enrolled in a Bachelor of Engineering at the University of Western Sydney in the hope that this qualification would allow him to apply for a skilled migrant visa.
When the applicant refused to return to Vietnam, his parents withdrew financial support for him. The applicant's explanation for his offending behaviour was that when his parents cut off his support he needed to support himself and his girlfriend. He was introduced to the person responsible for the criminal enterprise via an acquaintance with whom he played sport.
The applicant was not found to have any mental health or drug issues other than testing for low range depression, anxiety and stress in the custodial environment. The applicant expressed his remorse to the psychologist as follows: "Mr Le's arrest was a shock to him and he has suffered severe consequences as a result of his behaviour. He has lost his position at University, he has been incarcerated and he is coping with the shame and embarrassment he feels, particularly around the impact his behaviour has had upon his family. Mr Le said that since his arrest he had realised the seriousness of his actions and he expressed remorse and regret about his role in the crimes."
Ms Fritchley considered the applicant to be a low risk of recidivism due in part to the impact of his behaviour on his family and his visa status.
The applicant further relied upon a letter from a friend, Mr Pham, who confirmed the offence was out of character and that the applicant had expressed his remorse to him. He also relied on custodial records indicating he had been employed in textiles whilst in custody, had good work reports and no disciplinary infringements.

The co-offender's subjective factors

The applicant's co-offender was born on 22 February 1996. He did not give evidence at his proceedings on sentence either and, like the applicant, relied on a psychologist's report to put his subjective case before the court. This report was prepared by Kris North, forensic psychologist. Like the applicant he is a Vietnamese national with no criminal record.
The co-offender came to Australia on a student visa but was unable to continue his studies as he could not afford the school fees. He decided to discontinue his studies so he could work to send money home to his parents. His mother has thyroid cancer which required regular and expensive treatments. He worked as a fruit picker for a while but was detained for outstaying his student visa. After he was granted a bridging visa he continued to try to earn money to send back to his mother in Vietnam. He worked as a handyman but could not earn enough money to assist his parents and pay his own expenses. It was then that he was offered to become involved in the criminal enterprise.
The co-offender told his psychologist that he had only been at the house to assist with moving things and had only attended there "a couple of times prior to his arrest". He expressed remorse to the psychologist, who found him suffering in custody from a major depressive episode (mild), with anxious distress. He was assessed as a low risk of re-offending.

Remarks on sentence

In his remarks on sentence Judge Townsden noted the applicant's participation in the walk-through interview, including his identification of the numerous items used in the criminal enterprise and "full admissions" to living at the premises in order to cultivate cannabis, his role in the project and the various techniques used to cultivate the crop. His Honour noted by comparison that the co-offender had declined to comment.
Based on the "limited material" in the proceedings as to the role of the co-accused, his Honour drew no distinction between the two offenders. He stated: "I could not be satisfied either played a more significant role than the other".
As to remorse his Honour said: "I would accept there is some evidence of remorse in respect of each offender having regard to their pleas of guilty and what is contained in both psychologists' reports. However, I would afford this factor less weight as neither Offender has given evidence."
As stated previously stated his Honour imposed the identical sentence on both offenders.

Applicant's submissions

The focus of the applicant's complaint was that the sentencing judge erred in failing to ameliorate the sentence imposed on him by virtue of his admissions made at the scene. The relevance of those admissions was said to be two-fold; both as evidence of assistance to authorities (s 23 of the Sentencing Act) and/or as evidence of remorse.
The applicant acknowledged that counsel did not make any submission to the sentencing judge that the admissions should be considered as either evidence of assistance to authorities or additional evidence of remorse. Despite this, it was submitted that the fact and extent of this conduct was clearly set out in the Agreed Facts and referred to in oral submissions.
It was submitted that the terms of s 23 are sufficiently broad to include assistance by way of admissions during an investigation: R v XX [2017] NSWCCA 90 at [31]. Although it was accepted that the assistance was "modest", it was submitted that it should have been regarded as "relatively useful." Even though the applicant was apprehended at the scene of the crime and his fingerprints were later found on the cannabis pots, he gave information that was otherwise unknown. This information was that he had been involved for six months and would fertilise, water and maintain the plants. These admissions, it was submitted, obviated the need for further enquiries regarding the involvement of others in respect of the maintenance of the crop at least.
It was contended that the fact that the sentencing judge failed to mention that the admissions mitigated the sentence by virtue of amounting to "assistance," established that his Honour failed to take it into account. This conclusion was further supported by the fact that the sentencing judge imposed an identical sentence on the co-offender despite this being the sole distinguishing feature between the two offenders.
In the alternative, the applicant argued that irrespective of whether s 23 was engaged, the sentencing judge ought to have considered whether the admissions were a demonstration of remorse. At the hearing, counsel for the applicant submitted that "the better point is in relation to the remorse and only if it was not taken into consideration in that way would you consider as an alternative whether it ought to have been taken into consideration under s 23."
The applicant submitted that there were four aspects of post-offence conduct that went to the issue of remorse: what was said at the scene; the plea of guilty; what he told the psychologist; and what he told his friend Mr Pham. In the applicant's submission these four factors evidence were relevant under s 21A(1)(b) and were known to the Court and only two of them were common to both offenders.

The Crown submissions

The Crown placed reliance on the fact that these arguments were not relied upon before the sentencing judge. Thus, the onus is on the applicant to establish that the sentencing proceedings miscarried as a result of the admissions not being taken into account in the way it is not said they should have been.
It was further submitted that the admissions did not amount to assistance within the meaning of s 23(1) of the Sentencing Act and even if they did, the criteria in s 23(2) did not support the argument that a discount should have bene applied in this case. Nor could it be said that the fact that the sentencing judge did not find that the admissions warranted a finding of additional remorse constitute error.

Consideration

It was common ground that the applicant's legal representative did not make a submission before the sentencing judge that the applicant's admissions should lead to his sentence being either discounted or mitigated under s 23 of the Sentencing Act, or ameliorated as a result of a more favourable finding of remorse. As Johnson J (with whom McClellan CJ at CL and Rothman J agreed) observed in Zreika v R [2012] NSWCCA 44 at [79], this Court is a court of error. It is pertinent to set out what his Honour went on to state in Zreika v R at [81]-[82]: "The Victorian Court of Appeal has emphasised recently, that in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero v R [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13],[18]; Bayram v R [2012] VSCA 6 at [28]-[29]. In rare circumstances, a factor which may operate in mitigation of penalty (and which appears clearly from the material before the sentencing Judge) may have been overlooked by defence counsel and the sentencing Judge. In such a case, this Court may be invited to have regard to it, often in circumstances where the Crown will accept that the relevant material raised a factor which should unequivocally operate in the offender's favour on sentence. As Warren CJ said in Bayram v R at [29], it may "render a serious injustice" if an offender was not able to correct the error in such a case. This approach reflects the primacy of the rule that appeal grounds should relate to arguments put, and decisions made, at first instance. At the same time, criminal appellate courts should be able to correct a miscarriage of justice, or serious injustice, in the clear and rare cases where the relevant matter has not been relied upon at first instance."
The onus is on the applicant to establish that a miscarriage of justice has arisen as a result of the sentencing judge's failure to discount or mitigate the applicant's sentence under s 23(1) of the Sentencing Act. To meet this burden, counsel for the applicant submitted that the admissions and their value "unequivocally operate[d] in the applicant's favour": Zreika v R at [82]. That is, it was submitted that the matter not raised before the sentencing judge was one which so obviously favoured the applicant that this case falls within that category of rare cases described by Johnson J in Zreika v R where the sentencing proceedings miscarried and this court ought to interfere.
Section 23(1) of the Sentencing Act provides that "a court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence". Although the word "assistance" is not defined in s 23, there is no doubt that it extends to disclosure by an offender of otherwise unknown guilt.
In R v Ellis (1986) 6 NSWLR 603 Street CJ (with whom Hunt and Allen JJ agreed) observed at 604: "The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned." (Emphasis added.)
In CMB v Attorney General for New South Wales [2015] HCA 9; 256 CLR 346, Kiefel, Bell and Keane JJ observed at [72] that: "The principle stated in Ellis concerns the significant leniency that may be extended to an offender upon a plea of guilty which results from the offender's voluntary disclosure of otherwise unknown guilt. A disclosure of that kind involves assistance to law enforcement authorities in the detection and investigation of the offence and is subject to the stricture of s 23(3)."
Contrary to the applicant's submissions, this is not a case where the applicant disclosed otherwise unknown guilt. Although he volunteered how long he had been involved in the cultivation as a caretaker (six months), he was found at the scene of the crime with the cultivated plants and there was evidence he had been living there. He told police he was paid to water and fertilise the plants but that he did not "touch" the plants at all. These comments confine the applicant's role to being lower in the hierarchy. It is to be noted that both the applicant and his co-offender were sentenced on the basis of playing this more limited role.
The applicant has not established that the admissions made by him amounted to assistance within the meaning of s 23(1) of the Sentencing Act. As Garling J (with whom Gleeson JA and Johnson J agreed) observed in Browning v R [2015] NSWCCA 147 at [123]: "The mere fact that an applicant participates in an electronically recorded interview about the incident, the subject of the offence, even though not obliged to, is not a matter which is entitled to any weight, of itself, in mitigation of any sentence. If it were otherwise one would, in effect, be running the risk of imposing a punishment upon someone who exercised their right to silence."
Even if I was satisfied that the admissions were capable of coming within the terms of s 23(1) of the Sentencing Act, that is not the end of the inquiry. As Beech-Jones J (with whom Bathurst CJ and RA Hulme J agreed) observed in R v XX [2017] NSWCCA 90 at [56], just because a form of assistance is capable of falling within s 23(1) it does not necessarily warrant the imposition of a lesser sentence. That decision depends upon the application of the criteria in s 23(2) of the Sentencing Act which are as follows: "(a) (Repealed) (b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender's assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, (g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist, (h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist, (i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence, (j) (Repealed)"
With regard to these criteria, the applicant did not nominate any other person involved in the enterprise nor undertake to give any evidence, even against his co-offender, at any stage. The admissions were made after the applicant had initially refused police entry to the premises. This was not a case where the applicant had come forward to disclose criminality that would not otherwise have been detected. After participating in the walk-through, the applicant subsequently declined to be further interviewed by police back at the police station.
Even if the criteria in s 23(2) of the Sentencing Act militated in favour of a discount being applied, s 23(3) further provides that any lesser penalty imposed under s 23 "must not be unreasonably disproportionate to the nature and circumstances of the offence".
For these reasons I am not satisfied that the applicant's sentencing proceedings miscarried because his admissions at the scene were not treated as assistance to authorities.
The applicant's alternative contention was that the admissions should have led to a lower sentence than that of his co-offender because these admissions were evidence of additional remorse.
The sentencing judge made a finding that both offenders were remorseful, based largely on what they told their respective psychologists. The reason that his Honour afforded the factor of remorse "less weight" for both of them was that neither of them gave evidence.
This is not a case where the sentencing judge declined to make any finding of remorse in relation to the applicant. The effect of the applicant's submission regarding remorse is that there should have been a "higher" finding of remorse because of what the applicant expressed to his friend and the admissions he made at the scene. The difficulty with this submission is that, whereas both these matters are evidence of remorse, they do not require a finding of additional remorse.
The focus of what the applicant told Ms Fritchley was his own predicament and the fact that he had disappointed his parents. Although she reported that after his arrest he realised the seriousness of his actions and expressed remorse and regret about his role in the crimes, there was no opportunity for the sentencing judge to assess the extent of this remorse because the applicant did not give evidence.
Similarly, although I accept the submission of the applicant's counsel that admissions at the scene can be the clearest evidence of an offender's remorse as opposed to "[w]hat one does later on when one has spoken to lawyers and been told about discounts and so on," that conclusion is not a universal one. As I have already stated, his Honour was not able to explore whether this was the case as the applicant did not give evidence.
For these reasons, I am not satisfied that the applicant's sentencing proceedings miscarried because the sentencing judge did not rely upon the applicant's admissions at the scene (and the letter from his friend) as evidence of additional remorse.
Finally, I note that the applicant's argument that the sentencing judge must have failed to have regard to the applicant's admissions as evidence of either assistance or remorse was premised on the assertion that the two offenders otherwise had identical subjective cases. During the hearing of this application for leave to appeal counsel for the applicant accepted that the co-offender had not been afforded the same advantages in life as the applicant had. Despite this, she submitted that the sentencing judge "did not find that those circumstances were any more significant in that factor than the subjective case for the applicant".
For my part, I am not satisfied that the only matter distinguishing the two offenders was the fact of the applicant's admissions at the scene. Not only were their circumstances different, so too was their motivation. The co‑offender had suffered financial hardship and family illness and was raising funds to send to his family. The applicant had until recently been funded by his parents to undertake three course of study in Australia. When he denied their requests to come home, they refused to fund him any further. It was after this time that he became involved in this criminal enterprise to fund himself and his girlfriend.

Orders

For the reasons above I joined in the orders of the Court which were: 1. Leave to appeal refused.

Amendments 12 August 2019 - Cover sheet - Date of decision "9 August 2019" instead of "17 June 2019" [61] - "not' inserted before "require" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 August 2019

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