Nguyen v Regina

Therefore, in the period from June 2006 to July 2008, a total of six (6) such offences were dealt with; whether or not the subject of the standard non-parole period. Both the non-parole period and the total term imposed upon the applicant are in excess of any other sentence imposed during that period for this offence." 15 The relevant principles as to the use of comparable cases and statistics may be shortly stated as follows:

(a) As there is no single correct sentence: Markarian v R [2005] HCA 25; (2005) 228 CLR 357, it is necessary for the appeal court to evaluate the permissible range of sentence in the light of all of the admissible considerations affecting the case in hand, and drawing upon its own accumulated knowledge and experience: R v Holder (1983) 3 NSWLR 245 at 254, in order to determine if the sentence imposed is so excessive as to manifest error.

(b) In evaluating the sentence, the court may have regard to statistics such as those provided by the Judicial Commission of New South Wales and to similar cases in determining sentence patterns and the appropriate sentencing range: R v Bloomfield (1998) 44 NSWLR 734 at 739. Caution must be exercised in the use of such material as the sentence depends upon the facts of each case and bare statistics tell the judge very little which is useful and see Wong v R [2001] HCA 64; (2001) 207 CLR 584.

(c) In R v Morgan [1993] 70 A Crim R 368 Hunt CJ at CL observed, at 371: "It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range." 16 The recent decisions relied upon by the applicant are Bui v R [2008] NSWCCA 314, Truong v R [2009] NSWCCA 41 and Thi Lan Nguyen v R [2009] NSWCCA 181. 17 In Bui, the applicant pleaded guilty to a charge of cultivating a quantity (281) of cannabis plants not less than the large commercial quantity by enhanced indoor means pursuant to the Act, s 23(2)(a). The applicant owned the premises. He was born in 1960, had no prior record of relevance and received a full discount of 25 per cent for his plea. Special circumstances were found and one offence was taken into account on a Form 1. He appealed against a sentence of a non-parole period of imprisonment of 3 years with a further parole period of 2 years on the grounds that it was manifestly excessive. The appeal was unsuccessful. 18 In Truong the applicant pleaded guilty to a charge that on 11 January 2007, she hydroponically cultivated a quantity (189) of not less than the commercial quantity of cannabis plants contrary to the Act, s 23(2)(a). The maximum penalty for the offence was 15 years imprisonment. No standard non-parole period was applicable. The applicant was born in Vietnam in 1964. She received a discount of 25 per cent for her plea. She at least took over the enterprise and maintained the activity for profit. The applicant appealed against a sentence of a non-parole period of 18 months with a further term of 2 years on the ground that the sentence was manifestly excessive. The appeal was dismissed. In refusing the appeal, this Court held, at [15]: "With respect to the sentence imposed statistics from the Judicial Commission which were provided to this Court indicate that the non-parole period, in particular, was at the upper end of the range of sentences usually imposed. However, there is nothing to suggest that the sentence was outside the permissible range. The submission that the sentence was manifestly excessive must be rejected." 19 In Thi Lan Nguyen the applicant pleaded guilty to cultivating a quantity (172) of cannabis plants not less than the commercial quantity contrary to the Act, s 23(2)(a). The maximum penalty was 15 years imprisonment and there was no standard non-parole period. The applicant was sentenced to a non-parole period of 2 years 6 months with a balance of term of 1 year 6 months. The applicant at least tended the plants and guarded them. She received a 25 per cent discount for the plea. This Court held that the sentence was manifestly excessive and reduced it to a non-parole period of 22 months with a balance of term of 14 months. 20 As is apparent, the cases of Truong and Thi Lan Nguyen were concerned with a lesser offence, the maximum penalty for which was 15 years imprisonment and which did not attract a standard non-parole period. There was no reference to any Form 1 matters in either case. 21 Bui's case was concerned with the same offence as the applicant, although the number of plants involved was somewhat higher (281). It held that the sentence imposed (of 5 years with a non-parole period of 3 years) was not manifestly excessive. It provides no guidance as to where the upper limits of the sentencing range lie. The standard non-parole period was not applicable, as Bui had pleaded guilty prior to 1 January 2008. There was one matter on a Form 1. 22 In my opinion, no sentencing pattern or range relevant to the offence to which the applicant pleaded guilty is to be discerned from these cases, as the sample is too small and the cases (save to a certain extent in the case of Bui) are not comparable. 23 Similarly, the bare statistics to which the applicant makes reference, insofar as they do not draw from the three cases previously referred to, tell the Court very little and do not appear to be based on truly comparable cases. 24 Implicit in the applicant's submissions is the concept that as the number of plants in Truong (189) and Thi Lan Nguyen (172) was not much less than in the applicant's case (202), the applicant's sentence should be similar to that imposed on Truong and Thi Lan Nguyen. However, this fails to have regard to the fact that the legislature, as a matter of deliberate policy, has drawn a line at the cultivation of 200 plants and provided harsher penalties in respect of the cultivation of plants not less than that number. It is for this Court to implement the directions of the legislature. 25 This Court has held that the standard non-parole period remains a reference point, benchmark or guidepost, when there has been a plea of guilty: R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 per Simpson J at [37]. In R v Knight; R v Biuvanua [2007] NSWCCA 283; 176 A Crim R 338 Howie J stated, at [47]: "Even after a plea of guilty there must be an appropriate relationship between the standard non-parole period and the objective criminality of the offence regardless of the other matters that may be taken into account by way of mitigation." 26 As this Court has observed on a number of occasions, the implementation of a relatively high standard non-parole period will lead inevitably to an increase in sentencing for the relevant offence: AJP, R v AD [2005] NSWCCA 208 per Howie J at [43] and Des Rosiers v Regina [2006] NSWCCA 16; 159 A Crim R 549 per Latham J at [36]. 27 Sentencing involves a discretionary judgment. There is no single correct sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies: Markarian. 28 In sentencing the applicant, her Honour had regard to the nature of the offence and other objective factors, the maximum penalty, the reference point provided by the standard non-parole period and the applicant's subjective case. She had taken into account four matters on a Form 1. Her judgment is consistent with the proper exercise of her sentencing discretion. No patent error on her part has been asserted or demonstrated.

Conclusion 29 In my opinion, error has not been established. Nor has it been established that some other sentence, less severe, is warranted in law and should have been passed. Accordingly, whilst I would grant leave to appeal, I would dismiss the appeal.

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