Nguyen v R

The Second Ground of Appeal - Error in Use of Form 1 Offences

1. It is appropriate to deal firstly with the second ground of appeal which was added at the hearing in this Court. Submissions
2. In support of this ground of appeal, Ms Stares, counsel for the Applicant, pointed to the following passage in the sentencing remarks (ROS5-6): "The question that arises in this matter is of the objective seriousness and the difficulty that this Court faces, is that on the face of it - in respect of the matter this is a relatively small cultivation and there are no other indicia such as electrical bypass arrangements that elevate the dangers to members of the public and to the secret nature of the cultivation. However what is clear is that this was a commercial operation where he was the manager of the Bankstown premises. The lease was in his name and that he was available to be involved with the other two plantations when called upon by the persons who directed him in respect of the operation. To continue in Australia where his visa has expired and where it would be difficult for him to gain full-time employment is understandable, but to be involved in criminal activities such as this does, in my mind, heighten the objective serious nature of it because it is done for his financial gain so that he can continue to remain in this country. I find, as a matter of fact, that although this might be said to be at the low end of the range of seriousness I find that this matter, despite the relative few plants, but taking into account the matters on the form 1 document, does need serious consideration thus in respect of the offending I do find that it is somewhere between the middle and the low range of objective seriousness but to that I add the matters on the form 1 and accordingly, taking all matters into account, that would be a head sentence of six years from which I take off 25% which brings us to four and a half years and including the form 1 matters a period of 54 months and I then find that, with special circumstances, there should be a period of 33 months before he is eligible for parole. Both those matters are to be backdated to the date on which he was taken into custody which was on 16 June 2017."
3. Relying upon RO v R [2019] NSWCCA 183 at [53]-[60], counsel for the Applicant submitted that the sentencing Judge had erred in using the Form 1 offences for the purpose of making an assessment of the objective seriousness of the primary offence for which sentence was to be imposed.
4. The Crown submitted that the sentencing Judge had not erred in this way and that a fair reading of the sentencing remarks indicated that a finding of objective seriousness of the primary offence was made before his Honour took into account the Form 1 offences. Decision
5. It was necessary for the sentencing Judge to make a finding as to objective seriousness with respect to the primary offence although it was not a standard non-parole period offence: Tepania v R [2018] NSWCCA 247 at [112].
6. It may be accepted that a sentencing Judge should assess the objective seriousness of the primary offence separately before taking into account Form 1 offences for the purpose of sentence. Although the ultimate sentencing decision should have regard to the total criminality involved, different pathways are to be followed to bring about this result.
7. From time to time, Form 1 offences are closely linked to the primary offence itself, often involving other offences committed at about the same time. In the present case, the s.193C(2) Crimes Act 1900 offence on the Form 1 was associated with the primary offence given that the sum of money involved was located at the Bankstown property. The second and third Form 1 offences involved the Applicant's separate criminality in the form of cultivation of prohibited plants at two different properties at different times.
8. In taking into account the Form 1 matters on sentence for the primary offence, the penalty imposed for that offence could not exceed the maximum penalty of imprisonment for 15 years: s.33(3) Crimes (Sentencing Procedure) Act 1999.
9. In taking the Form 1 matters into account, a sentencing Judge has regard to the Form 1 offences with a view to increasing the penalty that would otherwise be appropriate for the primary offence. The sentencing Judge ought give greater weight to the need for personal deterrence and the community's entitlement to exact retribution for serious offences: Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 at 425-426 [22]. This approach will generally lead to the imposition of a longer sentence than would otherwise be required if the Form 1 offences were not taken into account: Abbas v R at 426 [23]; RL v R [2018] NSWCCA 274 at [53]-[57]. The sentencing Court does not impose a distinct penalty for the Form 1 offences and it is not appropriate to quantify the period or periods which may attach to those offences in taking them into account on sentence for the primary offence: Abbas v R at 421 [14], 425-426 [22]. Given the nature of the Form 1 offences in this case, it may be taken that a longer sentence was appropriate to give effect to these principles.
10. In considering whether his Honour erred in the manner asserted in this ground of appeal, it is necessary to read fairly his Honour's sentencing remarks. I am not persuaded that his Honour took into account the Form 1 offences in making an assessment of the objective seriousness of the primary offence.
11. In the passage set out at [39] above, his Honour referred to features of the offences committed by the Applicant. Although his Honour's language was somewhat infelicitous, it was made clear that, having made a finding that the primary offence lay "somewhere between the middle and the low range of objective seriousness", his Honour then moved to "add the matters on the Form 1". The present case is to be distinguished from RO v R, where the sentencing Judge expressly took into account the Form 1 matters for the purpose of making a finding as to the objective seriousness of the primary offence: RO v R at [54].
12. A fair reading of his Honour's sentencing remarks indicates that the approach adopted was to assess the objective seriousness of the primary offence and then to make an additional unquantified allowance for the Form 1 offences. This approach is not erroneous (see [46] above).
13. I would reject the second ground of appeal.

The First Ground of Appeal - The Sentence was Manifestly Excessive Submissions

1. Ms Stares submitted that the sentence was manifestly excessive. It was submitted that the objective seriousness of this offence should properly be characterised as being in the low range of objective seriousness. Counsel contended that the position was not affected materially by the Form 1 offences which would have increased the sentence to be imposed "by weeks or months rather than years" because of their low objective seriousness and short period of offending.
2. It was submitted that the role of the Applicant with respect to the primary offence, taken with his prospects of rehabilitation and suggested remorse, and after consideration of sentences imposed in other matters, ought lead the Court to conclude that the sentence was manifestly excessive.
3. The Crown submitted that the sentencing Judge's finding was that the primary offence was somewhere between the middle and the low range of objective seriousness to which it was necessary to add the matters on the Form 1.
4. It was submitted for the Crown that that finding by the sentencing Judge was open in this case and warranted the sentence ultimately arrived at by the District Court.
5. The Crown submitted that the sentencing Judge had not made a finding of remorse favourable to the Applicant and that this was understandable given the absence of evidence from the Applicant and the contents of the presentence report.
6. The Crown submitted that care is required having regard to sentencing statistics given the variations between different cases. It was submitted as well that consideration of other sentencing decisions of this Court did not assist the Applicant in his claim of manifest excess. Decision
7. In Obeid v R (2017) 96 NSWLR 155 at 241; [2017] NSWCCA 221, this Court said at [443]: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. * Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. * Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. * It is not to the point that this Court might have exercised the sentencing discretion differently. * There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. * It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
8. The Applicant's offence with respect to the Bankstown property was a somewhat unusual one. He was not a person who attended the property from time to time to care for the growing plants. He was the tenant of the Bankstown property with what was said to be a short-term but apparent managerial or custodial role concerning the cannabis crop growing by enhanced indoor means in that property. This distinguishes the Applicant's case from many other sentencing decisions for offences of this type.
9. In addition, the Applicant had significant offences to be taken into account on the Form 1 with respect to the Dapto property and the Queanbeyan West property.
10. The Applicant was not an occasional part-time helper at one property only. He was engaged at the Bankstown property between November 2016 and June 2017 with limited part-time cultivation tasks as well at properties significantly distant from the Bankstown property on three days between August 2015 and September 2016. Although the Applicant's involvement in offences at the Dapto property and the Queanbeyan West property were for short periods only, they revealed a broader and more varied function on his part with respect to three different properties. When arrested, the Applicant had a not insignificant sum of money in his wallet at the Bankstown property which was also taken into account on the Form 1 by way of the proceeds of crime offence.
11. The Form 1 offences related to separate quantities of prohibited plants being cultivated at different premises and reflected the Applicant's greater criminal activity with respect to those separate properties so that there was an additional need for deterrence and retribution in sentencing the Applicant for the primary offence. The Form 1 offence at the Dapto property involved a commercial quantity of cannabis plants cultivated by enhanced indoor means.
12. In sentencing the Applicant, it was necessary for the Court to have regard to the objects of the legislation concerning hydroponic cultivation of cannabis crops as noted by this Court in Tran v R [2018] NSWCCA 220 at [79]: "It may be seen from the second reading speech that the mischief to which the 2006 legislation was directed included the suppression of organised criminal activity, whereby extremely valuable cannabis crops could be cultivated in residential or commercial premises in urban areas utilising hydroponic cultivation measures and illegally diverted electricity. The legislation was directed at suppressing a lucrative market where valuable crops were cultivated in places which were effectively hidden in plain sight in urban communities ..."
13. As it happens, the crop at the Bankstown property was "hidden in plain sight" in an urban community whilst the crops at the Dapto property and Queanbeyan West property were located in regional centres.
14. Both specific and general deterrence were important aspects on sentence in this case. In Tran v R, the Court said at [158]: "Both specific deterrence and general deterrence play an important part on sentence for this class of offending as does the need for adequate punishment and denunciation of the offending conduct: s.3A(a), (b) and (f) Crimes (Sentencing Procedure) Act 1999. Persons who commit these offences do so for the purpose of substantial financial gain and there is a significant level of organisation involved concerning the selection and use of both residential and commercial premises for these illegal purposes ..."
15. The Applicant did not give evidence at the sentencing hearing. He made admissions to police in circumstances where there was already evidence which linked him to each of the three properties. The Applicant's statements to the author of the presentence report indicated a limited level of insight into his offending.
16. This Court has observed that assessment of the genuineness and value of remorse is likely to be better informed in circumstances where it is expressed directly by an offender to the Court, as remorse is an intrinsically subjective matter, the evaluation of which depends on the subtleties of human interaction: Alvares v R (2011) 209 A Crim R 297; [2011] NSWCCA 33 at [44]; Mun v R [2015] NSWCCA 234 at [39].
17. The limited number of sentencing decisions referred to by the parties provide illustrations of sentencing outcomes in other cases. More will be said shortly about these decisions. A history of sentencing can establish a range of sentences that have in fact been imposed, but that history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [53]-[54]. These other sentencing decisions assist as examples of sentences imposed in their own particular circumstances. However, the applicable legislative guidepost is the maximum penalty of imprisonment for 15 years: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]. The Form 1 offences were to be taken into account as well in accordance with the principles referred to earlier (at [46]).
18. From the selection of cases presented by both the Crown and the Applicant, Vu v R [2018] NSWCCA 122 is the only case where an offender was sentenced for multiple offences contrary to s.23(2)(a) DMT Act. However, it should be observed that in Vu v R, both s.23(2)(a) offences were on the indictment, in contrast to this case, where one of the offences was on a Form 1. Further, in none of the cases listed below, was there a further offence (on the indictment or on a Form 1, or a s.166 certificate) of cultivating a prohibited plant contrary to s.23(1)(a) DMT Act. In the majority of the cases, if there were additional offences, such offences related to either supplying the cannabis leaf harvested from the cultivation offence, or conduct which could be described as assisting the primary cultivation offence, including (for example) the manipulation of the electricity supply or setting up the premises.
19. The following is a summary of the sentencing decisions identified by both the Crown and the Applicant: 1. In Nguyen v R [2008] NSWCCA 322 ("Nguyen v R 2008"), the offender pleaded guilty to cultivating 105 cannabis plants, and supplying approximately 3.7 kg of cannabis leaf. The sentencing Judge found that the offending was "somewhere about middle range": [22]-[25]. The offender was sentenced to a total effective term of five years and six months, with a non-parole period of four years. The sentence for the cultivation offence was five years, with a non-parole period of three years and six months. The sentences were not disturbed on appeal: [33]. 2. In Truong v R [2009] NSWCCA 41, the offender pleaded guilty to cultivating 189 cannabis plants. The sentencing Judge found that the offender was "engaged in a substantial illegal commercial venture" and her criminality "fell a little below the middle range of offences": [9], [11]. On appeal, it was argued that the offender was a "mere crop sitter", however, this submission was rejected, because even if she did not "initiate the enterprise she took it over and maintained the activity … for profit": [13]. The offender was sentenced to imprisonment for three years and six months, with a non-parole period of 18 months, and this was not disturbed on appeal: [16]. 3. In Nguyen v R [2009] NSWCCA 181 ("Nguyen v R 2009"), the offender pleaded guilty to cultivating 172 cannabis plants. The offender was working on a farm, when someone had told her to "look after a house" in exchange for financial gain and accommodation. Accordingly, the offending was "premeditated and for financial gain", but there was "no evidence that she was the principal offender": [17]-[18]. Rather, the offender was "tending the plants and effectively guarding them" (at [18]). In allowing the appeal, the offender was resentenced to three years' imprisonment with a non-parole period of one year and 10 months: [60]. 4. In Pham v R [2009] NSWCCA 266, the offender pleaded guilty to two offences, being cultivation of 112 cannabis plants, and organising/conducting/assisting drug premises. An offence of alter, add to electricity installation without authority was taken into account on a Form 1 on the cultivation offence. The sentencing Judge found that the offending was "serious", but his role was at a "relatively low level". He did not bypass the meter nor construct the room. The sentencing Judge accepted that the offender was a "babysitter" for the crop, and played this role for financial gain: [7]. The offender was sentenced to three years' imprisonment with a non-parole period of 18 months (with the organising/conducting/assist offence made wholly concurrent): [5]. The sentence was not disturbed on appeal: [27]. 5. In Nguyen v R [2012] NSWCCA 42 ("Nguyen v R 2012"), the offender pleaded guilty to cultivating 157 cannabis plants. The offence was "premeditated and motivated by greed": [21]. The sentencing Judge found that the offender was "clearly the instigator" and had "recruited [his co-offenders] to assist": [22]. Davies J (with whom McClellan CJ at CL and Garling J agreed) summarised the above four cases (Nguyen v R 2008, Nguyen v R 2009, Pham v R, and Truong v R) and concluded that no manifest excess had been demonstrated: [35]-[39]. The offender was sentenced to a term of imprisonment of five years and three months, with a non-parole period of three years. The appeal, principally founded on the disparity of the sentences between himself and his co-offenders, was dismissed: [40]. 6. In Portolesi v R [2012] NSWCCA 157, the offender pleaded guilty to cultivating 197 cannabis plants, and supplying 3.37 kg of cannabis leaf. There were seven additional related offences set out in a s.166 Criminal Procedure Act certificate. The sentencing Judge found that the cultivation offence was "significantly above the middle of the range", and that he was the "sole principal involved in this enterprise", who "stood to gain from it": [27]. The offender was sentenced to a total effective term of five years and six months, with a non-parole period of four years. The indicative sentence for the cultivation offence was imprisonment for five years, with a non-parole period of three years and six months: [4]-[5]. These sentences were not disturbed on appeal: [71]. 7. In Tan v R [2013] NSWCCA 164, the offender pleaded guilty to cultivating 53 cannabis plants. An offence of possess cannabis was taken into account on a Form 1. The offender "admitted that he was the principal" and that he had "personally purchased all the equipment [and] diverted electricity" to cultivate the plants: [7]. Following a successful appeal, the offender was resentenced to imprisonment for three years, with a non-parole period of two years and two months: [30]. 8. In Wei v R [2015] NSWCCA 66, the offender pleaded guilty to cultivating 135 cannabis plants. Two offences, being deemed supply of 833 g of cannabis leaf and consume electricity without authority, were taken into account on a Form 1: [3], [10]. The offender was "no more than a gardener and lodger who had been used as a pawn by those who stood to profit from the venture": [33]. In allowing the appeal on the basis that the offender ought to have received a discount, the Court sentenced the offender to imprisonment for two years and seven months, with a non-parole period of 18 months: [36]. 9. In Andreata v R [2015] NSWCCA 239, the offender pleaded guilty to cultivating "somewhere between … about 50 and … 133" cannabis plants, and supplying 2.45 kg of cannabis leaf: [3], [17]. The sentencing Judge had accepted that the offender's role was "limited", and that only a "relatively small number of plants … were being cultivated in excess of the commercial quantity": [38]. On appeal, Beech-Jones J (with whom Ward JA and Adams J agreed) adopted Davies J's analysis in Nguyen v R 2012, and also considered the decision in Tan v R: [39]-[47]. In allowing the appeal, having found manifest excess on both offences, the Court resentenced the offender to a fixed term of imprisonment of 12 months for the supply offence, and imprisonment of three years, with a non-parole period of 18 months for the cultivation offence (made partially cumulative on the supply offence): [54]-[55]. 10. In Crowley v R [2017] NSWCCA 99, the offender pleaded guilty to cultivating 128 cannabis plants, and on a s.166 certificate, to two offences of possess prohibited drug (20 g of cannabis seeds and 2.64 kg of cannabis leaf). The sentencing Judge found that the offender's criminality fell in the "mid range": [37]. The offender had argued that his cultivation of cannabis was for "personal use", but the sentencing Judge had found that he was "ready to supply": [22], [38]. The offender was sentenced to a term of imprisonment of three years, with a non-parole period of two years. The Court held that the sentencing Judge did not err with her findings, and dismissed the appeal against sentence: [46]. 11. In Kresovic v R [2018] NSWCCA 37, the offender pleaded guilty to cultivating 57 cannabis plants and supplying a prohibited drug (approximately 6.7 kg of cannabis). An offence of consume electricity without consent was taken into account on a Form 1 on the cultivation offence, and an offence of organise drug premises was placed on a s.166 certificate: [2]-[4]. With respect to the cultivation offence, the sentencing Judge "assessed the level of criminality as closer to the midpoint between the low range and mid range of objective seriousness" (at [16]), as he was the "principal in the cultivation [who] … did all the planting … set up the entire cultivation … [and] maintaining the plants." He had also "set up the electrical bypass and other electric installations": [15]. The offender received an aggregate sentence of imprisonment for three years, with a non-parole period of one year and 10 months, with the indicative sentence for the cultivation offence being one of two years and nine months. The appeal against sentence was dismissed: [34], [47]. 12. In Vu v R, the offender pleaded guilty to two separate counts of cultivating cannabis (91 and 105 plants), and to supplying a prohibited drug (9.4 kg of cannabis leaf). The offender received an aggregate term of imprisonment of eight years, with a non-parole period of four years. The indicative sentences for both cultivation offences were identical, being five years and six months: [28]. The sentencing Judge found that the offender had taken part in a syndicate alongside three co-offenders, and that the offender had "undertook the role of co-ordinating some of the syndicate's activities including negotiating sale prices …" and "direct[ing] aspects of distribution and sale of the cannabis": [13]-[17]. Accordingly, her role was "some sort of mid management role that involved a level of trust and responsibility within the syndicate that was higher than the [other three co-offenders]": [25]. With respect to the first cultivation offence (105 plants), the sentencing Judge had found that this fell at "the very upper end of the lower range": [40], and the second cultivation offence (91 plants), where the offender had been the lessee, was "within the midrange": [26], [40]. In dismissing the appeal, the Court held that there was no error in either the indicative sentences or the aggregate sentence: [47], [73]
20. In all the circumstances of the present case, it was open to the sentencing Judge to impose the sentence selected in this case having regard to the objective seriousness of the primary offence and the additional serious Form 1 offences involving the Applicant's role in drug cultivation at two other properties.
21. The Applicant has not succeeded in demonstrating that the sentence imposed was unreasonable or plainly unjust. The sentence imposed at first instance was not manifestly excessive.
22. I would reject the first ground of appeal.
23. I propose the following orders: 1. grant leave to appeal against sentence; 2. appeal against sentence dismissed.
24. LONERGAN J: I agree with Johnson J.

Endnotes

1. [2019] NSWCCA 183.
2. (2011) 244 CLR 120; [2011] HCA 39.
3. Hunter v R [2011] NSWCCA 141 at [45] (Adams J); see also Khoury v R [2011] NSWCCA 118 at [75]-[76] (Simpson J, citing R v Georgopoulos [2010] NSWCCA 246 at [32] (Howie AJ)).
4. Anderson v Director of Public Prosecutions [1978] AC 964 at 977 (Lord Diplock); see also Abbas, Bodiotis, Taleb and Amoun v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 at [11] (Bathurst CJ), [106] (Hoeben CJ at CL).
5. Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [18] (Spigelman CJ); Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 at [22]-[23] (Bathurst CJ); see also at [106] (Hoeben CJ at CL), and at [260] (Campbell J).
6. R v Jones [1978] Tas SR 126.
7. (2002) 56 NSWLR 146; [2002] NSWCCA 518; see also Abbas v R at [16].
8. See also at [52], [64] (Basten JA); [100], [104], [106] (Hoeben CJ at CL, with whom Garling J also agreed at [155]).
9. At [3].
10. [2008] NSWCCA 322.
11. [2012] NSWCCA 42.
12. [2012] NSWCCA 157.
13. [2018] NSWCCA 122. 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: 18 September 2019