Nguyen, Hung Manh v R

The law to be applied

1. Offences in contravention of ss 25(2), 23(2)(a) and 23(1A) each attract a potential maximum penalty of 15 years imprisonment with no specified standard non-parole period and/or 3,500 penalty units.
2. The offences for which the applicant was sentenced were: 25 Supply of prohibited drugs (2) A person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence. … 23 Offences with respect to prohibited plants (2) A person who-- (a) cultivates, or knowingly takes part in the cultivation of, a number of prohibited plants which is not less than the commercial quantity applicable to prohibited plants, is guilty of an offence
3. The offence for which the applicant's four co-accused were sentenced was: 23 Offences with respect to prohibited plants (1A) A person who-- (a) cultivates by enhanced indoor means, or knowingly takes part in the cultivation by enhanced indoor means of, a number of prohibited plants which is-- (i) not less than the small quantity applicable to the prohibited plants, and (ii) less than the commercial quantity applicable to those prohibited plants, and (b) cultivates, or knowingly takes part in the cultivation of, those prohibited plants for a commercial purpose, is guilty of an offence
4. "Cultivate" is defined in s 3 of the Act; "cultivate", in relation to a prohibited plant, includes - (a) sow or scatter the seed produced by the prohibited plant, and (b) plant, grow, tend, nurture or harvest the prohibited plant.
5. The applicant does not contend that the sentence was manifestly excessive. Complaint as to parity accepts that the sentence was otherwise appropriate: Jimmy v R (2010) 77 NSWLR 540 at [251]; [2010] NSWCCA 60.
6. As stated by Beech-Jones J in Kelly v R [2017] NSWCCA 256 at [21]: "The parity principle is an aspect of equal justice before the law. It holds that as between co-offenders there should not be a marked disparity between the sentences imposed such as to give rise to "a justifiable sense of grievance" in one of them (Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 610 per Gibbs CJ, at 613 per Mason J and at 623 per Dawson J; Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] per French CJ, Crennan and Kiefel JJ)".
7. The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 323 per Gummow J and at 338 per Kirby J.
8. The Court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise: Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 609, per Gibbs CJ, Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [31] per French CJ, Crennan and Kiefel JJ.
9. It is not determinative that the applicant was sentenced for a different charge to the other four offenders; substance rather than form is the focus of the inquiry: Green at [30].

The applicant's offending

1. The Agreed Facts tendered on sentence state: In December 2016 Strike Force BOGALONG was formed by NSW Police to investigate the cultivation of cannabis at 206 Parker Street, Kingswood. In April 2017 police conducted surveillance of the premises and observed the offender at the premises on four occasions. Police were granted a warrant to install a covert surveillance device at the premises. On 15 June 2017 police entered the premises and it was evident that the premises had been converted to a sophisticated cannabis cultivation set up. Each room of the premises had been specifically altered to best suit the growth of cannabis with a bathroom used as a water and growth liquid distribution room. The bedrooms and a large Queensland room were used for plant placement under UV globes. The dining and kitchen area were the only habitable areas of the house and this is where a mattress was located. Police installed the camera in the room they identified as being the largest "grow room". Police reviewed the footage from the covert device and noted that the offender was active in the premises on five occasions between 15 June and 14 July 2017. His activity in the grow room was all captured on the covert device. On 23 June 2017 the offender was seen on the covert device entering the grow room. He placed long bamboo spikes inside each pot containing a cannabis plant and tied individual branches to the spikes. He also stripped excess foliage from the branches. On 24 June 2017 he was seen entering the room and stripping excess foliage from the branches of the cannabis plants inside the room. On 6 July 2017 the offender was seen on the covert device entering the room and again stripping excess foliage from the branches of the cannabis plants. On 9 July 2017 he was seen rearranging the long bamboo spikes on the cannabis plants and retying the branches to the spikes. On 14 July 2017 police were conducting physical surveillance of the property. On the same day they were granted a warrant at Penrith Local Court to search the premises. At 1:11pm the offender, in company with four other individuals, entered the grow room and started harvesting the cannabis head from the 23 mature plants within the room. The removed head was placed into black pots which were clearly captured on the covert device. At 3:50pm the offender and other individuals were arrested as they left the premises. The offender was wearing the same black jacket as seen in the footage on 24 June 2017 and 9 July 2017. The offender was holding two letters addressed to 206 Parker Street, Kingswood. The offender was arrested and taken to Penrith Police station where he was entered into custody. There were issues arranging a face-to-face Vietnamese interpreter and the offender was not interviewed. Search warrant 110/2017 was executed at 206 Parker Street, Kingswood and a total of 157 Cannabis Sativa plants in varying stages of growth were seized. In total there were ten black buckets of freshly harvested cannabis head. At the time of the analysis this was "slightly damp vegetable matter" that weighed 61.879g in total. It is agreed that the dried weight would be considerably less but would still have been a quantity greater than the commercial quantity, which is 25kg. It was also discovered that the electrical supply to the premises had been illegally bypassed allowing the UV lamps to be powered by an unmetered feed whereby decreasing the overhead costs of the cannabis cultivation process. It is not known who carried out the rewiring to set up the illegal bypass. The offender is not the owner or lessee of the premises. The offender's role was that he was caring (sic) and maintaining the plants, and assisting with the harvest.

Remarks on sentence regarding the applicant

1. Maiden DCJ observed that on the material before him, there was a choice made by the applicant to become involved with "people, most likely Vietnamese criminals". He observed that this was a choice the applicant made purely for financial reasons. Whilst it was the "most serious mistake of his life" it was nonetheless a matter where he deliberately sought to be involved in a criminal enterprise involving an illegal drug for the benefit of financial gain. [1]
2. His Honour referred to the applicant's age and education: "In acting as he did, it was with an intent to being with an ongoing criminal enterprise where although he was taking the risk it was nonetheless a risk that he undertook as an intelligent man and at an age of almost 40 years. This is not the case of an immature person who had circumstances forced upon them from which there was no alternative". [2]
3. When addressing the objective seriousness of the offending his Honour stated: "The matter on the Form 1, the supply, was the product from the harvesting of hemp on approximately 20 plants in one room. Other plants in other rooms were at various stages of growth and it appears that this was a very well-organised operation for ongoing supply of cannabis. When one adds the extra plants from which the heads I assume have been harvested, if this was a well-organised operation, and may I say well managed by this offender, there is no evidence as I have said earlier of what the financial arrangement was, and having made the decision to act as he did then he took the risk and in doing so he must in my mind accept that this was in terms of objective seriousness below the mid-range but nonetheless in terms of the length of sentence, maximum 15 years plus the financial penalties possibly, must be seen in that light. Mr Overall respectfully submitted that the Court should feel some sympathy for him and it is unfortunate that a man with what I would have said had good prospects either in Vietnam or here made the decision that he did. I accept that he is unlikely to offend in Australia but there is little evidence before me as to the contacts that he had in this country or what his life will be back in Vietnam. I am not to take into account that he may be deported at some point he not having it seems, residence status at this time. In my mind this matter calls for significant punishment because there must be the need for general deterrence. General deterrence means that if a person is thinking of staying in Australia either on a limited work visa or a student visa or any other visa for that matter and chooses to enter into criminal activity such as this in an organised way then they must expect that having taken the risk that they should receive significant punishment." [3]
4. His Honour also noted that he was aware that the "younger co-offenders" received bonds "apparently under s 9" although he was "unclear of their status or their immigration status as to why that was extended". Trieu Nguyen, the male co-offender, had not yet been sentenced.

The offending of the four co-offenders and the sentences imposed on them

1. The full extent of the offending behaviour of all four co-offenders was described in the Agreed Facts tendered at their respective sentence hearings as follows: …. At 1:30pm on 14 July 2017 the offender was monitored by the covert surveillance device assisting in the harvest of Cannabis Sativa head from mature plants within the room. The offender was monitored in the company of the co-offenders. The removed heads were placed inside 10 black pots before being left inside the room. ….. The offender's involvement in the cultivation only relates to the harvesting of the 23 cannabis plants at paragraph 4 for a little over 2 hours.
2. In sentencing Trieu Nguyen, Hanley DCJ observed that the objective seriousness falls "towards the lower end", and that the participation was limited to the cultivation of 23 plants for 2 hours. There was no evidence to suggest any prior involvement or that Trieu Nguyen made any decisions in relation to the cultivation, provided any funds for it or brought any skills to its cultivation. Hanley DCJ also noted that the delay with this particular offender being sentenced was that he was initially charged with a "more serious offence" and that it was only after clarification that the offender had arrived in Sydney only a few days before his arrest that led to the conclusion that his role could be assessed at towards the lower end of objective seriousness, and that he could be described as "less than a crop sitter" in view of his limited temporal participation. [4]
3. By the time of the sentencing hearing of Trieu Nguyen, he had been in custody for almost a year. Taking into account his plea of guilty leading to a reduction of 25%, and some associated "inherent remorse", (although none was articulated before the sentencing judge) and in assessing prospects of rehabilitation and likelihood of reoffending and the need to take into account general deterrence, Hanley DCJ fixed a term of imprisonment of 12 months dating from 25 September 2017 and expiring three days after sentence.
4. During sentencing proceedings in April 2018, in sentencing the three young female co-accused, who were aged 22, 23 and 26, Hanley DCJ said the following: "These three young women are only charged with a role in assisting in the 23 plants that they removed the heads from. Their role was harvesting on a very limited basis in one room for a period of two hours. Whilst the overall setup was quite a sophisticated one, no doubt involving a considerable amount of management, cultivation and finance in setting up, there is no suggestion the three co-offenders were involved in any aspect of the cultivation which would increase the objective seriousness of their offending behaviour. Whilst their roles are important in that someone needs to harvest the plants, I am not satisfied they are objectively serious in the context of this type of offending. I agree with the Crown's submission in relation to each being that their roles and the objective seriousness of the offence would fall towards the lower end of the range. In fact in my experience it probably falls at the very lowest end of the range for this type of offending". [5]
5. His Honour then proceeded to examine the subjective matters in respect of each of them, concluding that in terms of general deterrence he was satisfied that the time each had spent in custody, (3 to 4 weeks), would be sufficient to convey to the community that there is a need for general deterrence. He considered that period of custody also operates as sufficient specific deterrence for each of them. As is apparent from the material tendered which included character references and letters from each of these three offenders, Hanley DCJ also took into account the pre-sentence reports stating in respect of each of them that they "would not reoffend" and each had excellent prospects of rehabilitation.

Assessment of the applicant's arguments as to lack of parity

i) All co-offenders were present on 14 July 2017 and had initially been charged with the same offences as the applicant

1. Counsel for the applicant argued that the fact that all five offenders were originally charged with the same offences, and that they were "all present conducting activities on 14 July 2017" when they were arrested had some ongoing significance to the parity argument, submitting that "overwhelmingly the factual basis on sentencing is the same".
2. This submission is simply not open. It ignores the fact that the nature and extent of the criminal activity for which the co-accused were sentenced was far more limited than the applicant's and ignores the reality of the position at the time of sentence.
3. The applicant was the person observed accessing the premises on 9 occasions. On 5 occasions the physical acts he carried out tending to the plants for various periods was captured on cameras hidden in the premises by police. He has admitted to this in agreeing to the Facts tendered on his sentencing. In those Agreed Facts he accepts responsibility for his acts in relation to the care and management of all 157 plants located by police on 14 July 2017 at the premises.
4. His four co-offenders were sentenced only in respect of their discrete activities on 14 July over 2 hours, involving the cultivation of 23 plants.
5. What was undertaken by the applicant on his own admission, when compared with that undertaken by his co-offenders easily explains the difference in the approach to and the length of sentence.
6. The applicant's offending involved the "cultivation" of all 157 cannabis plants at the premises. This well exceeds the statutory (as defined in the Act) commercial quantity of 50 plants and was more than three-quarters of the large commercial quantity of 200 plants.
7. The applicant also had the further serious offence taken into account on the Form 1 of possessing the cannabis harvested that day which amounted to a commercial quantity of that drug for deemed supply.
8. At the sentencing hearing counsel then appearing for the applicant recognised that parity considerations did not apply with respect to the three young female co-offenders who had already been given s 9 bonds. Counsel submitted that he "did not in any way suggest" that the applicant should have parity with them, given that the applicant had participated for a far longer time and undertook more acts of cultivation. Counsel also conceded that the applicant's offending placed him "over the s 5 threshold" and a custodial sentence was appropriate. He also conceded that the applicant's role was that of a person engaged as a "crop-sitter", and that the offender accepted the serious nature of his offending.
9. Clearly the tasks observed being undertaken by the applicant were not unskilled cultivation tasks. The extent of his offending called for a sentence that emphasised general deterrence and the sentencing judge correctly emphasised that in his remarks.

ii) The offences carry the same maximum penalty

1. This is true, but the level of criminal activity engaged in that provided the basis to the charges laid against the applicant was obviously far more wide-ranging and repeated than the activity of the four co-offenders. This was reflected in the respective findings of objective seriousness of the offending and the corresponding sentences imposed. Obviously the level of the applicant's involvement led to two discrete charges (one placed on a Form 1) and the criminality attached to that was accepted by him in the Agreed Facts and he was sentenced accordingly.

(iii) There is little in relation to the findings on subjective matters to distinguish the co-offenders in terms of sentence

1. This submission too must be rejected. Maiden DCJ emphasised the age, intelligence and education of the applicant as significant matters. He contrasted the position of the applicant with "an immature person who had circumstances forced upon them…", clearly a reference to the young female co-offenders. The fact that all persons involved were from Vietnam and that some financial difficulties and family complexities were in the background of each offender does not displace the more important points of differentiations made clear in Maiden DCJ's remarks on sentence.

Conclusion

1. There was an entirely explicable foundation for the differences between the sentences ultimately imposed: Hiron v R [2018] NSWCCA 10 at [51]-[59].
2. The applicant has not made good his claim of a justifiable sense of grievance arising from the sentences imposed upon the other offenders and the appeal should be dismissed.

Orders

1. Accordingly, I propose the following orders: 1. Grant leave to appeal. 2. Appeal dismissed.

Endnotes

1. Regina v Hung Manh Nguyen, Remarks on Sentence of Maiden DCJ at 3.
2. Ibid.
3. Regina v Hung Manh Nguyen, Remarks on Sentence of Maiden DCJ at 3-4.
4. Regina v Trieu Nguyen, Remarks on Sentence of Hanley DCJ at 3.
5. Regina v Trieu Nguyen, Remarks on Sentence of Hanley DCJ at 3.

Amendments 27 February 2020 - 27 February 2020 - corrected coversheet - solicitor's details; citation details 27 February 2020 - [18] - correct typographical error on citation details 27 February 2020 - [20] - correct typographical error on citation details 27 February 2020 - [21] - correct typographical error on citation details 27 February 2020 - [44] - correct typographical error on citation details 27 February 2020 - 27 February 2020 - coversheet (p2) date of decision inserted 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: 27 February 2020