NGUYEN Huu v R

SOLICITORS: Crown: S Kavanagh Applicant: T Pham

• 10 - IN THE COURT OF CRIMINAL APPEAL 2007/0319

McCLELLAN CJ AT CL HULME J HISLOP J Thursday, 5 April 2007 Huu Chien NGUYEN v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with the orders proposed by Hulme J and but for one matter, his Honour's reasons. In my opinion the analysis which Hulme J undertakes in this matter is not relevantly inconsistent with the approach of this Court in R v Godden [2005] NSWCCA 160 or Quan v R [2006] NSWCCA 382. 2 HULME J: On 19 April 2006, the above named Applicant pleaded guilty at the Liverpool Local Court to a charge that between 1 November 2005 and 14 February 2006 he did cultivate 278 cannabis plants being not less than the commercial quantity applicable to that prohibited plant. On 20 June 2006 the Applicant appeared before Judge Maguire on that charge and on 18 August 2006 his Honour sentenced the Applicant to "a minimum term of 15 months imprisonment (and) … to a further term of 15 months of imprisonment". The "minimum term" was of course a misnomer for "non-parole period" but nothing turns on that error.

3 In arriving at the sentence he imposed Judge Maguire allowed the Applicant a 25% discount for his pleas of guilty and also took into account an offence of supplying 5,700 grams of cannabis leaf. The leaf was found in 2 bags in the cargo tray of the Applicant's vehicle and had a street value of $50,000.

4 The offence charged was one created by s23(2)(a) of the Drug (Misuse and Trafficking) Act and carries a maximum penalty of 15 years imprisonment and a fine of 3,500 penalty units. A commercial quantity of cannabis plants covers the range of 250 to 999 plants. Although the Applicant's offending falls to be judged by reference to the statutory specification of the offence with which he was charged, it also seems to me relevant to bear in mind that, as an indication of the seriousness with which the legislature views the growing or possession of cannabis plants, had the number of plants been less than 250 (but 50 or more) the maximum penalty to which the Applicant would have been liable was imprisonment for 10 years and a fine of 2000 penalty units. 5 (Although not relevant to the Applicant's case it may be noticed that subsequently to his offending, the Act has been amended to provide that in the case of cannabis plants cultivated by enhanced indoor means, as the Applicant's were, the range for the number of commercial and indictable quantities is now between 50 to 200 plants.)

6 The circumstances of the offence are apparent from what the police found when they executed a search warrant upon a dwelling house in which the Applicant was living as the sole occupant. There they found the plants in 5 rooms in the house and the underneath area, all of which had been converted into indoor growing areas equipped with grow lights, fans, and ventilation systems. In the cargo tray of the Applicant's vehicle they found drums of liquid fertiliser. The plants ranged in size from 15 to 40 cm with an estimated street value of $556,000. 7 The offence taken into account was one under ss25 and 29 of the Drug (Misuse and Trafficking) Act and, had it been charged on indictment, would also have carried a penalty of 10 years imprisonment and 2000 penalty units, the amount of 5,700 grams falling within the indictable quantity of 1 to just under 25 kg. Again subject to the limitations adverted to above, had this offence been dealt with summarily, it would have carried a maximum penalty of 2 years and 50 penalty units.

8 The grounds upon which leave to appeal and the appeal are based are:- 1. The learned sentencing judge erred in his approach to fixing the appropriate sentence both in respect of the non-parole period as well as the head sentence. 2. The learned sentencing judge erred in failing to give due regard to the applicant's reason for committing the offences, namely to fund his gambling problem. Ground 1

9 Counsel for the Applicant developed this ground by contending that the gist of it was that:- "His Honour, by extending the arithmetical equivalent of one third of the non-parole period pursuant to s44(1) of the Crimes (Sentencing Procedure) Act revealed error both in the fixing of the non-parole period as well as the head sentence."

10 The simple answer to this ground is that there is nothing in what his Honour said to support the proposition advanced. In his remarks on sentence, Judge Maguire dealt with the evidence of the Applicant's offending, his subjective circumstances, a number of other matters relevant to the sentencing exercise including the allowance of a discount of 25% for the Applicant's plea of guilty and proceeded:- "I am of the view that this offender's prospects of rehabilitation would be enhanced by an extended period of supervision. I regard that as amounting to special circumstances for the purpose of s44(2) of the Crimes (Sentencing Procedure) Act. He has been in custody since 14 February 2006. I sentence you to a minimum term of fifteen months imprisonment. I sentence you to a further term of fifteen months imprisonment. The sentence and non-parole period are to commence on 14 February 2006."

11 In first stating the non-parole period (or, to use his Honour's words, "minimum term") and then the balance of the sentence, his Honour was fulfilling the dictates of s44. The reference to the two aspects of the sentence in the order that occurred thus provides no basis for concluding that the further term was chosen so as to extend the full period of the sentence rather than ameliorate the non-parole period at the cost of extending the balance of term.

12 In further support of this ground counsel for the Applicant pointed out that Judge Maguire had been referred to a decision of this Court in R v Godden [2005] NSWCCA 160 where, for an offence in the same terms as that committed by the Applicant, a sentence of 2 years and 2 months including a non-parole period of 15 months had been imposed by this Court. In that case the number of plants was 319, the plants varied between seedlings and some 1.5 metres high, and the hydroponic cultivation was regarded as "highly professional". At the time of part of his offending, Godden had been on a s9 bond for occasioning actual bodily harm and there had been taken into account the possession of 280 grams of cannabis leaf. Godden had a record involving other minor convictions.

13 At first instance Godden had been sentenced to imprisonment for a period of 3 years 2 months including a non-parole period of 2 years, a 20% discount having been allowed for a plea. Thus the sentencing judge's starting point must have been 4 years. After reviewing the sentencing statistics applicable to the offence and a number of prior authorities, this Court held that the sentence was manifestly excessive.

14 Counsel for the Applicant drew attention to the fact that the number of plants here was fewer than Godden had been involved with, that the Applicant had not been on a bond as had Godden and that the fact the Applicant had no prior convictions was a further distinguishing feature. Counsel pointed out also that while on bail for the cultivation offence Godden had been convicted for breach of an apprehended violence order and various firearms offences and that the discount of 25% that the Applicant received for pleading guilty was also greater than Godden had enjoyed. In summary counsel's submission amounted to the proposition that if a starting point of 48 months in Godden's case was manifestly excessive then so was the undiscounted notional period of 40 months reflected in the sentence here and the sentence imposed on the Applicant should more closely have reflected a starting point of (approximately) 32½ months implicit in the sentence imposed by this Court on Godden.

15 Counsel also drew attention to the fact that the difference between 32½ months and 40 months is about equivalent to a 25% discount on sentence and the implicit adoption of the higher figure effectively removed the discount that the Applicant had received for his plea. Counsel accepted that the Court in R v Godden had not said that one had to come down as low as 32½ months but submitted that the comparison he made with the plea discount demonstrated that 40 months was too far above the figure to be derived from R v Godden to be within the sentencing judge's discretion. 16 There are at least 3 answers to this submission. Firstly, the fact that implicitly this Court held that 48 months was manifestly excessive does not demonstrate that, in that case, any lesser period necessarily would have been. A line has to be drawn somewhere and some periods would fall just above and some just below that line. In any event 40 months is more than minimally below 48 months. 17 Secondly, I do not accept that for any particular offence the proper sentencing range is limited to sentences that fall within a range of 25% of the higher or lower limits of the range. That is implicit in the Applicant's submission but is a proposition for which no authority has been cited.

18 A third answer to the Applicant's submission is that there are 2 features of this case that argue for a more severe penalty than in R v Godden. One is that the offence taken into account here was substantially more serious than that taken into account in Godden's case. I do not forget the limited use to which offences on a Form 1 may, in accordance with Re Attorney-General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] 56 NSWLR 146 at [42] be put - but even if attention in that regard is confined to retribution, it seems to me that possession of 5.7 kilograms of cannabis leaf worth $50,000 - the salary for an honest year's work for many people - well justifies a substantial increase in the penalty that would otherwise be appropriate. 19 The second feature that tends to make the Applicant's offence more serious is that his sole motivation seems to have been profit. He denied any drug use himself. In R v Godden, although the sentencing judge had rejected the proposition that all the cultivation was for that purpose, it would seem that he had accepted that some was - see at [29] and [39]. 20 To these matters I would add the following. The actus reus of the offence charged consists simply of cultivation of not less than 250 plants and, since the cultivation of more than 999 constitutes the commission of a more serious offence, not more than that number. It is reasonably to be inferred that the harm that has inspired Parliament's legislation against cannabis and the profit that is calculated to flow from cultivation of any particular crop are likely to be broadly proportional to the number of plants. The Applicant would seem clearly to have been the principal, indeed the only person involved in the enterprise. It is to be inferred he stood to make all the profits from the enterprise and, to the extent it was relevant, that he knew the size of the operation in which he was engaged and the numbers of plants which he was cultivating. 21 Given the circumstances detailed in the preceding paragraph it would seem to me that it is only the number, and perhaps size, of the plants that prevents the Applicant's offence, in terms of its objective seriousness, from falling into a worst category. And while I am prepared to assume that the size of the plants is of some significance, I would not regard that significance as high. It is to be inferred that the Applicant's object was to cultivate the plants to as profitable a stage as possible. If one puts aside as absurd his statement that he did not know that it is illegal to possess marijuana plants in this state, his criminality was deliberate. 22 278 plants is about 27% of the maximum number encompassed by the statutory offence. 40 months is but 22% of the statutory maximum. Of course sentences should not simply be proportional to quantity - R v Doan (unreported, CCA, 27 September 1996), Postiglione (1991) 57 A Crim R 301, Wong & Leung v R [2001] 207 CLR 584 - but when consideration is given to all of the factors relevant thereto, the objective criminality in the Applicant's offence does not suggest any excessiveness in Judge Maguire's starting point. A fortiori is this so once it is recognised that, given the impact on an offender's life, actual imprisonment for a lengthy period is more than twice as severe as imprisonment for half that time - see R v Sciberras [2006] NSWCCA 268 at [50]; R v Amurao [2005] NSWCCA 32 at [65]. 23 Of course, subjective matters have also to be taken into account. The Applicant could pray in aid Judge Maguire's finding that he has good prospects of rehabilitation and his good record (although this latter factor is of less weight in the case of deliberate drug offending - R v Nemes (unreported, CCA, 28 August 1997) and the cases there cited). Furthermore, the authorities make it clear that subjective factors must not be allowed to overwhelm the sentencing process at the expense of giving proper weight to an offence's objective seriousness - R v Camilleri (unreported, CCA, 8 February 1990). 24 The value of the crop also argues compellingly for there being no error, adverse to the Applicant, in the sentence imposed. Bearing in mind the other factors to which I have referred, to punish deliberate criminality yielding a crop with a street value of over half a million dollars with a penalty of only that imposed on the Applicant is not calculated to inspire confidence in the sentencing process and makes unsurprising the fact that sentences to date do not seem to have operated as a major deterrent to the cultivation of marijuana. 25 If the effect of R v Godden is to deny the logic and consequences of the above approach then, with respect to the experienced judges who decided it, one would have to query its correctness and, possibly, that of the decisions on which it was based. The same observation may be made in respect of the decision of Quan v R [2006] NSWCCA 382 to which the Court was also referred. 26 Accordingly, I would not uphold the first ground of appeal.

Ground 2 27 A difficulty that the Applicant has with this submission is the Applicant did not give evidence on sentence. He did refer to gambling in an interview with the author of a pre-sentence report, the relevant part of which, quoted by his Honour said:- "(The Applicant) stated that upon returning from Canada (in about 2004) he became bored and depressed and subsequently commenced gambling in approximately 2005. He stated he spent $200 on average per week gambling." 28 Later his Honour also recorded that the Applicant had told a psychologist whose report was before his Honour "the background of the offence and asserted that at the time he did not know that what he was doing was wrong. He expressed his remorse to Mr Colquhoun and said that he now understood how harmful the drug is to society." 29 His Honour went on to say "I accept that evidence". However it is not clear to me how much of the preceding words I have quoted were intended to be encompassed within those remarks. It would certainly be extraordinary if his Honour intended to accept all of them. 30 There is in fact a deal of information provided by the Applicant in the course of his ERISP and to the psychologist which makes the suggestion that the offence was inspired by some gambling addiction difficult to accept and other information which, absent convincing evidence on oath, it would be impossible to believe. Thus Mr Colquhoun records the Applicant saying:- "When he first started gambling he would bet small amounts losing $10 $20 in total each day. However, this amount slowly grew to $60-$100 each day. With mortgage repayments due and no steady incoming salary, Mr Nguyen began borrowing money from other people that he met in the local pub. He reported borrowing $1,000-$2,000."

And later "… Mr Nguyen states that he does not have any outstanding debts at present and his motivation to cultivate the plants was to secure an amount of money in case his funds depleted." 31 In his ERISP the Applicant said that he had been unemployed for a bit over 2 years; that $1,000 cash he had at the time police spoke to him was money from when he used to work; when he went out of business he was left with approximately $50,000, some $35,000 of which was used as a deposit on a house and in respect of which he was involved in repayments of some $1,900 per month; that he serviced his debts by playing poker machines and winning some money and sometimes borrowing from friends; that he has not been lucky gambling so he had to find some means to support himself thus growing the marijuana; that he didn't sell marijuana leaves to anyone merely throwing them away, and had not yet derived any income from the production of the marijuana. 32 However, I do not need to canvass these statements further. The relevance of addiction was the subject of remark in this Court in the decision in R v Henry (1999) 46 NSWLR 346 at [171-208] where it was held that except in confined circumstances - see [177] - addiction should not be regarded as a mitigating factor. In this case there are no circumstances of the nature, or falling within the category, of those contemplated in R v Henry. 33 Accordingly, I would reject this ground of appeal also. 34

In my view the appropriate orders are: (i) Grant leave to appeal (ii) Dismiss the appeal. 35 HISLOP J: I agree with Hulme J. I also agree with McClellan CJ at CL that the analysis which Hulme J undertakes in this matter is not relevantly inconsistent with the approach of this Court in R v Godden [2005] NSWCCA 160 or Quan v R [2006] NSWCCA 382.

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