Ngo v R

Grounds of Appeal

1. The applicant seeks leave to appeal against his sentence on the following grounds: "GROUND 1: His Honour erred in imposing the sentence that he did in the following ways: (a) by failing to have any regard, or failing to have adequate or proper regard: (i) To the age of the applicant at the time of [the] commission of the offence; (ii) To the finding made that the applicant had the benefit of the prospect of rehabilitation; (iii) That prison for the applicant would be invariably more difficult for the applicant as he is deprived of family and friends who all reside in Vietnam; (iv) The overall lack of any evidence that he was going to benefit from the cultivation of the cannabis plants, except in the limited way that he indicated when he gave sworn evidence. (b) by giving disproportionate weight to: (i) General deterrence and retribution GROUND 2: The sentence was manifestly excessive in all the circumstances."

The Agreed Facts

1. Two statements of Agreed Facts were placed before the judge. The first statement related to the Carlingford offence. The second statement related to the Form 1 offence and the Penshurst offence.

The Carlingford offence - count 1

1. In June 2016, residential premises in Carlingford were leased to new tenants. The tenants remain unknown. Shortly thereafter, the applicant commenced attending the premises.
2. Between 8 June 2016 and 13 September 2016, the applicant attended the premises no more than twice. On both occasions, he knowingly took part in the cultivation of cannabis by enhanced indoor means.
3. He attended the premises with Manh Ling Cao. The applicant was not the principal of the operation.
4. On 13 September 2016, the real estate agent liaised with the tenant to arrange an inspection of the premises. The tenant asked if the inspection would be internal or external. The tenant requested that the inspection be delayed and indicated that they needed time to move things out of the premises. Eventually the tenant said, "I'm very sorry, we have cannabis at the house."
5. Police searched the premises later that same day, and found a sophisticated hydroponic cannabis cultivation set-up in seven rooms of the house. Each room contained cannabis plants at various stages of growth. Hydroponic lighting, exhaust vents, irrigation systems and electrical transformers were used to sustain the operation. Plastic sheeting had been installed on the floors and walls. Electricity was provided to the premises through a bypass such that the electricity used for the operation was unmetered.
6. The applicant's fingerprints were located on a light shade in one of the rooms. That light shade was used as part of the hydroponic lighting.
7. An agronomist certified that there were 231 cannabis plants growing in the premises at that time. Various other items, including three large bags of cannabis leaf offcuts, three bottles of a plant hormone, a five litre heavy duty water sprayer, scissors, latex gloves, gardening gloves, and 11 empty bottles marked "Super Bud Flower Supplement" were located on the premises.
8. The applicant's car was searched. A receipt from Bunnings Warehouse was found in the car which matched the pair of gardening gloves found on the premises. Also located in the car were electrical timers, a pair of clippers and a business card for "Outside-In Hydro & Organics".

The Form 1 offence

1. On 5 August 2016, a residential tenancy agreement was signed for a house in Croydon Park. The lease was for one year with a commencement date of 23 August 2016.
2. On 23 September 2016, police received information about a possible cannabis plantation located at the house in Croydon Park. Police attended the premises and observed about 100 mature cannabis plants growing in the garage. Police commenced surveillance of the premises.
3. At about 12.20pm on 24 September 2016, police observed the applicant drive a white van into the driveway of the property. The van had been hired in the applicant's name. The applicant and two others exited the van. They all went to the garage of the house and spent some time at the property before leaving.
4. At about 12.40pm, police stopped and searched the van, and placed the applicant under arrest. In their search, police found an iPhone and two sets of keys. Keys from one set were able to turn the lock on a door that permitted entry to the basement area where numerous cannabis plants were located. However, that door had earlier been forced open by police and there was no evidence of whether the lock was damaged in that process. The keys did not open the front door of the property.
5. Police searched the house and found a total of 453 cannabis plants, ranging from seedlings to mature plants. Two hundred and ninety two of the cannabis plants were located in the garage. A number of mature plants were found beneath the house, all of which had an average height of one metre. The remaining plants were located throughout the house and were of varying size and maturity.
6. Police also found equipment inside the house which is commonly used in the enhanced cultivation of cannabis, including electricity transformers, multiple lamp shades, light bulbs, and fertiliser and potting mix. The equipment was not set-up or operating at the time of the search.
7. A Pepsi can was located inside the house which contained DNA that matched the applicant.
8. Analysis of the applicant's iPhone revealed that he had regular contact with a mobile phone number in the weeks leading up to 24 September 2016, which was the phone number listed as a contact on the tenancy application for the house.
9. The applicant knowingly took part in the cultivation of the cannabis plants between 22 August 2016 and 25 September 2016.

The Penshurst offence - s 166 certificate

1. On 29 September 2016, Mr Jin, the owner of a house in Penshurst contacted police.
2. Mr Jin reported to police that he had spoken to an unknown male at the front of the residence. Shortly thereafter, the unknown male ran away. Mr Jin used his keys to enter the property and found cannabis inside the house.
3. Police searched the property and found a hydroponic cannabis cultivation set-up in two rooms, including electrical transformers, filtration systems, and High Intensity Discharge lighting systems. The police noted the lighting systems and filtration systems were operating at the time of the search. There was no one present on the property.
4. Police also located other items used in the cultivation of cannabis. Those items included fertiliser, spare electrical transformers, chemicals, light globes, hoses for irrigation and gloves.
5. A number of items were found which indicated that a person spent time at the property, including a lounge, drink bottles, dirty dishes in the kitchen and a small number of personal items.
6. Twenty-six cannabis plants, approximately half a metre in height, were located in the house. Forensic examination of a three digit fingerprint, taken from the underside of a lampshade in Room 3 of the house where 11 cannabis plants were found, positively matched the fingerprints to those of the applicant.

Proceedings on sentence

1. The proceedings on sentence took place before the judge on 28 November 2017, at the conclusion of which the judge sentenced the applicant.
2. After the statements of agreed facts were tendered, the applicant gave evidence. No other oral or written subjective material was tendered in the applicant's case.
3. It was an agreed fact that the applicant was born on 1 September 1995. He did not have a prior criminal history.
4. The applicant gave evidence that he came to Australia in 2013 to study accounting. He studied in Melbourne for one and a half years before ceasing study and moving to Sydney. He told the court that he ceased study because he found it hard to live by himself and commenced working part time in a bakery. He said that when he was charged he was "so sad" and "had a feeling of losing everything". The applicant stated he did not have any other family or friends in Australia.
5. In cross-examination the applicant agreed that he had pleaded guilty and acknowledged his guilt in relation to the three different offences.
6. In relation to the Carlingford offence, he stated that he met a man called Ling and followed him to the house. He said that he "…knew that they were doing that, they were growing plants, but I didn't report it to the police".
7. When questioned about what he did at Carlingford, he initially said he didn't do anything, but then clarified his answer to say that he watered the plants.
8. He denied that he cut the cannabis plants.
9. He stated that he went to the Carlingford property on two occasions only. He agreed that he went there on those occasions for the purpose of cultivating the cannabis plants, and said that he watered and maintained the plants on those two days.
10. He denied that he was paid for his involvement on those two days. When questioned as to whether he received any benefit from maintaining the plants on those two days, his answer was "correct, no money".
11. The applicant accepted that his fingerprints were found on a light shade located in one of the rooms at the property in Carlingford, and that the receipt found in his car for the purchase of gardening gloves appeared to match the gloves located inside the house. However, he denied using the gloves and stated, "No I didn't buy them, I was with Ling, the man called Ling… he bought them for use, for his own use".
12. In relation to the Form 1 offence, the applicant stated that during the period 22 August 2016 to 24 September 2016 he would attend the particular property twice a week.
13. He denied that he would water or cut the plants. He said that "…they told me to go there to move the plants away with the promise that I would get $2,000".
14. He said that he had not yet been paid the $2,000.
15. In relation to the Penshurst offence, he stated that he had never attended those premises. When questioned further he stated: "I have never been to the residence in Penshurst but because I was told that [my] fingerprint was found there so I thought maybe I touch something, the lamp [sic] set somewhere in the place where the 231 plant was found and then we moved that to this address, that's why."
16. Following this evidence, the Crown queried the applicant's acknowledgment of guilt. The applicant's lawyer indicated to the judge that the applicant didn't deny that his fingerprints were on the lampshade, but was saying that he had never attended the actual premises.
17. When further questioned, the applicant accepted that he assisted in the cultivation of cannabis plants because he was "…involved in the house with 231 plants that maybe the equipment or something were moved to the other house".
18. He agreed that between June 2016 and September 2016 he was renting a property in Fairfield with his girlfriend for which he was paying $600 per fortnight for the two of them.
19. At that time he worked part-time as a cleaner and was earning $400 a week.
20. When questioned as to why the court could have confidence that he would not re-offend when released, he stated: "For more than one year being in prison I've been thinking a lot and I have a talk to my family and then I've been feeling so sad, very sad, and then I ask myself and then I feel disappointed in myself and then I think a lot about the people, Australian people who work and pay tax for the community but I did the wrong thing to hurt these people, to hurt this community."'
21. He agreed that prior to committing these offences he was aware that it was an offence to cultivate cannabis in Australia.
22. At the conclusion of the cross-examination his Honour stated: "Do I have anything from him at all as to why he got involved in all of these events? I didn't pick anything up in his evidence-in-chief, I just want to make sure I haven't missed it."
23. The judge expressed concern as to the potential traversal of a plea on the Penshurst offence, and gave the applicant's lawyer time to confer with her client.
24. Upon the lawyer's return it was indicated that there would be no traversal of his plea, and no further evidence was lead from the applicant in re-examination.
25. The applicant's lawyer had provided the judge with written submissions. After brief oral submissions from the parties, the judge delivered his ex tempore sentencing judgment.

Some findings by the judge

1. His Honour assessed the objective seriousness of the Carlingford offence to be below the mid-range of objective seriousness. [1]
2. The judge observed that the Form 1 offence was of "some significance" and found that it would "…impact to a significant degree upon the sentence that would have been imposed upon the principle offence were it presented standing alone". [2] His Honour said that he would "…bring to account the need for weight to be given to personal deterrence for the extent of his overall misconduct including the additional offence and the community's entitlement for retribution and denunciation of that additional offence". [3] His Honour took into account that the charge on the Form 1 was not termed as an enhanced cultivation.
3. As to the Carlingford offence, the judge said that between 8 June 2016 and 13 September 2016, the applicant had attended the house on two occasions and both times he took part in the cultivation of cannabis. The judge acknowledged that the applicant was not the principal in the operation and had attended with Manh Ling Cao.
4. His Honour noted that the applicant had no prior criminal record in Australia and accepted his unchallenged evidence of no record in Vietnam.
5. The judge said that the applicant came to Australia to study accounting in Melbourne but in due course moved to Sydney. After having stopped studying, he worked in a bakery at Newcastle and "…then ultimately became involved in these enterprises". [4]
6. The judge recounted the applicant's claim to have a limited role in the cultivation of the cannabis plants at the three locations. The judge said that the applicant claimed "…not to have done anything, not to have watered the plants or taken any role in general maintenance, although he acknowledged that he did take some role in maintaining the enterprise at least in the more serious charge but did not particularise precisely what he did". [5]
7. His Honour remarked that the applicant had distanced himself from the receipt found in his car for the purchase of the gloves from Bunnings by saying that they were purchased by Mr Ling for himself.
8. The judge referred to the applicant's evidence that he had never been to the Penshurst premises and noted that an issue had arisen as to whether the applicant was traversing the plea. The matter was stood down but on resumption the applicant confirmed his pleas.
9. His Honour accepted that the applicant had expressed a measure of remorse and said that he was "…prepared to extend to him the finding that he has been remorseful in circumstances where on any view the evidence would lead to a conclusion I would expect [sic] that [the applicant] was at the lower end of the enterprise". [6]
10. The judge said that it was difficult to quantify precisely what the applicant's role was, but accepted the Crown's submission that "…to the extent that he was engaged in these crimes he had an integral role to play; he had keys to the Forbes Street Croydon Park property". [7]
11. His Honour was satisfied that the applicant's role "…was a little more than what he would have the court believe". [8] His Honour said, notwithstanding that he had not accepted the applicant's evidence with regard to his participation, he would give the applicant "…the benefit of the doubt with regard to his expressions of contrition and remorse". [9]
12. The judge went on to say: "I agree with the Crown's submission that there must be a denunciation of this conduct and general deterrence has a role to play. He is not a principal in this enterprise, there were others who were directing the operation of three premises, but his role made it possible for those others to so engage in what is serious criminal misconduct. He must be punished for what he has done." [10]
13. In relation to the applicant's prospects of rehabilitation, the judge stated that he found it "…difficult to assess, but on balance I believe he should have the benefit of finding those terms". [11]
14. His Honour found special circumstances and imposed a non-parole period that was 61% of the overall sentence.

Argument

1. The grounds of appeal may be conveniently dealt with together as it is in the applicant's position that ground 2 should be read as incorporating ground 1.
2. The applicant contended that considering his age, limited role, limited period of involvement, and lack of prior criminal history, his sentence was manifestly excessive. The applicant pointed out that at no stage in the proceedings on sentence or his sentencing remarks did the judge refer to his age and youth. He was 20 and 21 years old at the time of his offending.
3. The applicant did not submit that it was not necessary for the sentences to give some effect to general deterrence and retribution, but argued that as he was a relatively young adult some mitigation of the full weight of those sentencing principles was required, which the judge did failed to do. It was contended that the judge erred by giving disproportionate weight to general deterrence and retribution.
4. The applicant adverted to the remarks of Barr J in R v Makisi [12] ("Makisi") that "the sentencing of a twenty year old is a very different procedure from the sentencing of a twenty-five year old". [13] In oral submissions, the applicant referred to the "folly of youth" and to young people engaging in this type of offending.
5. Another argument was that the judge did not make clear how he took into account the finding that the applicant had prospects of rehabilitation.
6. With respect to the applicant's role, a submission was made that his overall role was limited to that of a labourer, rather than someone who was going to benefit significantly following the harvesting of the plants. The applicant argued that he only watered the plants, and was involved for two days in the Carlingford offence and for eight days in the Form 1 offence.
7. The applicant referred to Wei Zheng Wong v R [14] ("Wong") which was said to provide a comparative case. In written submissions, the applicant submitted that by comparison with the sentence imposed on Mr Wong, his sentence was manifestly excessive. However, the applicant's counsel properly acknowledged in oral argument that the sentence imposed in Wong was only of limited assistance.
8. The applicant did not press as a ground of appeal his hardship in prison as a foreign national, but submitted that his limited number of prison visits was a matter to be taken into account by this Court on re-sentence in the event that error was found.
9. The Crown submitted it is a well-established principle that an appeal is not the occasion to reformulate the case made in the court below and that the considerations in Zreika v R [15] ("Zreika") apply to the present matter.
10. The Crown contended that there were no submissions made, nor any evidence led before the judge, as to the relevance of the applicant's age in relation to the nature of his offending or the reasons for his involvement in the offence.
11. The Crown argued that the only submission made relevant to the applicant's age, was with respect to special circumstances, together with the factors of his "demonstrated rehabilitation" and the "protection of the community".
12. The Crown pointed to the judge's finding of special circumstances and considerable reduction from the standard ratio to 61%. The Crown submitted that although his Honour did not specify his reasons for finding special circumstances, it could be inferred that the applicant's submissions before the judge were accepted.
13. The Crown argued that the judge did not give disproportionate weight to general deterrence and retribution. Particular reference was made to his Honour's remark that general deterrence "has a role to play".
14. The Crown submitted that the judge's finding that there were "prospects of rehabilitation" clearly indicated that his Honour took that factor into account.
15. The Crown argued that the judge did not err by not accepting the applicant's evidence as to his limited participation. The Crown submitted that the applicant's evidence was unsatisfactory both as to establishing any lack of remuneration and as to his involvement generally. The Crown contended that the circumstances of each offence displayed a distinctly commercial character and it was clear that the applicant had an "integral role to play" though one that was "at the lower end of the enterprise". The Crown noted that there were no submissions made to the judge as to the claimed lack of financial reward being relevant to the objective seriousness of the offence.
16. The Crown criticised the applicant's reliance on Wong, pointing out that a single case does not establish the upper range of a judge's sentencing discretion. Furthermore, the Crown pointed to differences between the applicant's and Mr Wong's cases.

Consideration

1. One of the applicant's complaints is that the judge did not take into account his relatively young age in reducing the weight that his Honour gave to general deterrence and retribution.
2. Without canvassing all of the ways that the relative youth of an adult offender may impact upon the sentencing discretion, those ways include the assessment of the objective gravity of an offence and considerations of the prospects of rehabilitation, general deterrence and special circumstances. [16] Each case will depend on its own facts.
3. The applicant was a young adult being 20 and 21 years of age at the time of his offending. When sentenced, he was 22 years old.
4. The applicant's submissions before the judge as to his age were directed to a finding of special circumstances, and were in the following terms: "The following is said to constitute special circumstances: a. Age b. Demonstrated rehabilitation c. Protection of the community"
5. No arguments were put to his Honour that the objective gravity of the applicant's offending or that the need for general deterrence was reduced because of the applicant's age.
6. As has often been emphasised, this Court is a court of error. [17] This Court will not lightly entertain points that could have been but were not raised in the court below. However, it is recognised that this Court is able to correct a miscarriage of justice or a serious injustice with respect to a sentence in clear and rare cases where the relevant matter was not relied upon at first instance. [18]
7. Although the judge did not refer to the applicant's age in his sentencing remarks, his Honour, an experienced sentencing judge had the benefit of reading the written submissions and seeing the applicant giving evidence shortly before proceeding to sentence. The applicant's subjective case was confined to his oral evidence and was not supplemented by reports or testimonials. The judge said that he accepted there were special circumstances.
8. In my view, it is plain that the applicant's age was an important factor in the finding of special circumstances and the significant reduction in the statutory ratio so that the non-parole period was 61% of the overall sentence.
9. In any event, the applicant challenges the "disproportionate weight" given by the judge to general deterrence and retribution. Questions of weight are quintessentially a matter for a sentencing judge and the circumstances in which matters of weight will justify appellate intervention are narrowly confined. [19]
10. There is nothing to suggest in his Honour's remarks that undue weight was given to either general deterrence or retribution. When referring to general deterrence, his Honour agreed that it had "a role to play" (see [71] above). The sole reference to retribution was made when his Honour referred to the judgment in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [20] which provides a guideline for the proper approach to be taken when Form 1 matters are taken into account when sentencing for the "principal offence". His Honour was entitled to increase the sentence for the Carlingford offence as the Form 1 offence demonstrated the greater need for personal deterrence and retribution.
11. I am not persuaded that the judge erred by giving disproportionate weight to general deterrence and retribution.
12. The applicant complains that the judge did not make clear how he took into account the finding that the applicant had prospects of rehabilitation. His Honour said: "Insofar as there are prospects of rehabilitation that is difficult to assess, but on balance I believe he should be entitled to the benefit of a finding of those terms." [21]
13. In written submissions to the judge, the applicant submitted that he "had actioned rehabilitation" through complying with his bail and custodial conditions; re-enrolling in a Diploma of Business; and expressing remorse and contrition.
14. Although inelegantly expressed, it is evident that the judge made a favourable finding that there were prospects of rehabilitation. As has been often stated, the ex tempore sentencing remarks of District Court judges who have heavy caseloads ought not to be unduly parsed and analysed. [22] There is no merit in this complaint.
15. As to the applicant's argument of his limited role and to the lack of evidence that he was going to benefit significantly from the cultivation of the cannabis plants, the judge was entitled to view the applicant's testimony with some reservation and to consider collectively the applicant's involvement in the cultivations at the three premises. It was open to his Honour to find that the applicant's role was a little more than he would have the court believe and that he had an integral role to play, though at the lower end of the enterprise.
16. I am not persuaded that error has been demonstrated in the findings that the judge made.
17. In order to establish that the sentence is manifestly excessive, the applicant must establish that the sentence was unreasonable or plainly unjust. [23] Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. [24]
18. The applicant adverted to the sentence of imprisonment imposed in Wong of 3 years 9 months with a non-parole period of 1 year 9 months. Mr Wong had pleaded guilty to a single count of knowingly taking part in the cultivation of 255 cannabis plants by enhanced indoor means contrary to s 23(2)(a) of the DMTA. Factual findings made by the sentencing judge included the offender, a Malaysian foreign national, watered, fertilised and guarded the plants for about six months. The offender was 22 years old when sentenced. The sentence was discounted by 25% for the guilty plea. This Court determined that the sentence was not manifestly excessive and dismissed Mr Wong's appeal.
19. It is unnecessary to canvas the facts and circumstances in Wong in any further detail as the case is distinguishable on various bases. A major matter of difference is that in sentencing the applicant for the principal offence, the judge took into account the Form 1 matter of knowingly taking part in the cultivation of 453 cannabis pants at Croydon Park. As the judge observed this was an offence of some significance and impacted "to a significant degree" upon the sentence that would have been imposed in the Carlingford offence, if it was standing alone. The applicant was also sentenced for the Penshurst offence. The sentence of 4 years 6 months with a non-parole period of 2 years 9 months is an aggregate sentence.
20. Wong does not provide support for the proposition that the sentence imposed upon the applicant was manifestly excessive.
21. The maximum penalty for the principal offence is 20 years imprisonment with a standard non-parole period of 10 years. The maximum penalty for the Penshurst offence is 2 years imprisonment. As found by the judge, the applicant had an integral role to play, though at the lower end of the criminal enterprise. Favourable findings were made by the judge as to the applicant's contrition, remorse and prospects of rehabilitation. As a result of the finding of special circumstances the non-parole period was 61% of the overall sentence.
22. In my view, the sentence imposed by the judge is not manifestly excessive.
23. I would grant leave to appeal but would dismiss the appeal.

Endnotes

1. ROS, 2.
2. ROS, 3.
3. ROS, 3.
4. ROS, 7.
5. ROS, 7.
6. ROS, 8.
7. ROS, 8.
8. ROS, 8.
9. ROS, 8-9.
10. ROS, 9.
11. ROS, 9.
12. [2004] NSWCCA 333; (2004) 151 A Crim R 245.
13. Makisi [2004] NSWCCA 333; (2004) 151 A Crim R 245 at [33].
14. [2010] NSWCCA 160.
15. [2012] NSWCCA 44; (2012) 223 A Crim R 460.
16. See for example: R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451; KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571; R v Lachlan [2015] NSWCCA 178; (2015) 252 A Crim R 277.
17. Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [10]; Zreika [2012] NSWCCA 44 at [79]; (2012) 223 A Crim R 460.
18. Zreika [2012] NSWCCA 44 at [78]; (2012) 223 A Crim R 460.
19. Clinton v R [2014] NSWCCA 320 at [40].
20. (2002) 56 NSWLR 146; [2002] NSWCCA 518.
21. ROS, 9.
22. R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [48].
23. Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [27].
24. Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Vaiusu v R [2017] NSWCCA 71 at [28]-[29]. 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: 17 December 2018