Court of Appeal (Vic)|2013-03-25|Before: Michael J, Mr P, Redlich JA, Whelan JA

Nguyen v The Queen [2013] VSCA 63 (25 March 2013)

The Queen v Nguyen (Unreported, County Court of Victoria, Judge Maidment, 13 April 2012)

CRIMINAL LAW - Appeal - Sentencing - Appellant found guilty of four counts of cultivating a narcotic plant in a commercial quantity, one count of trafficking a drug of dependence, and four counts of theft of electricity - Whether total effective sentence of 6 years and 9 months' imprisonment, with non-parole period of 4 years and 9 months, manifestly excessive - Whether cumulative sentences for thefts involved double punishment - Whether sufficient weight given to principle of totality - Appeal dismissed.

1 I have had the advantage of reading in draft the reasons of Kaye AJA and agree that the appeal should be dismissed.

3 After a trial in the County Court at Melbourne, the appellant was found guilty of four charges of cultivating a narcotic plant in a commercial quantity, contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981 ('the Act'), one charge of trafficking in a drug of dependence contrary to s 71AC of the Act, and four charges of theft of electricity, contrary to s 72 of the Crimes Act 1958. The judge imposed a total effective sentence of 6 years and 9 months' imprisonment, with a non-parole period of 4 years and 9 months. The judge made a declaration, pursuant to s 18 of the Sentencing Act 1991, of 956 days pre-sentence detention. The appellant, by leave, appeals against the sentence so imposed on him.

4 The cultivation offences were committed by the appellant pursuant to a joint criminal enterprise with his de facto wife Dung Ngoc Vo ('Vo'). It was alleged that the enterprise also comprised another person, Thi Xuan Nguyen, who is yet to stand trial. The cultivation offences were committed at the family home of Vo and the appellant at Kings Park, and at three leased factory premises in Sunshine North, which were respectively at 38 Imperial Avenue, 31 Whitehall Avenue and 55 Imperial Avenue. The appellant had leased each of those three premises, in which he purported to conduct a plastic recycling business as a 'front' to the enterprise of cultivation which was occurring in the premises.

5 On 31 August 2009, police executed a warrant at the premises at 38 Imperial Avenue. There they found a sophisticated hydroponic nursery for the cultivation of Cannabis L, together with specialised equipment designed to bypass the electricity

meter and thus to facilitate the theft of electricity. The police found at the premises 129 cannabis L plants, and 9.5 kilograms of harvested heads. Subsequently, on the same day, the police searched the other three premises. Each of those premises contained a similar sophisticated hydroponic system for the purposes of cultivation of cannabis L on a commercial scale, together with similar specialised equipment designed to bypass the electricity meters.

6 At 31 Whitehall Avenue, the police found 671 cannabis L plants, at 55 Imperial Avenue, the police found 242 cannabis L plants, and at the appellant's home, the police found 234 cannabis L plants. The thefts of the electricity at the four premises resulted in total losses of approximately $19,000.

7 In his record of interview, the appellant claimed that he had subleased each of the factories. The appellant did not give sworn evidence. His case at trial was that, with respect to the three factories, his involvement was limited to his plastics recycling business. In effect, his defence was that the prosecution was unable to exclude, beyond reasonable doubt, the possibility that the offending had been carried out, without the appellant's knowledge, by Ms Vo, and by other persons.

8 The appellant was convicted on each of the nine charges contained in the indictment. He was sentenced to a term of imprisonment of five years on each of the four charges of cultivation of a commercial quantity of narcotic plants; to a term of three years and six months' imprisonment on the charge of trafficking in a drug of dependence; and to a term of one year and nine months' imprisonment on each of the four charges of theft. The judge ordered that there be no cumulation in respect of the four cultivation charges, and the one charge of trafficking. His Honour ordered that five months of three of the sentences in respect of the theft charges, and six months of the sentence in respect of one of the theft charges, be served cumulatively upon each other and upon the sentence on count 1. Thus, as I have stated, the total effective sentence was a term of imprisonment of six years and nine months, with a non-parole period of four years and nine months.

9 At the time of his sentence, the appellant was 60 years of age. He came to Australia with his parents, on a boat, from Vietnam, in 1979. In 1987, he commenced a clothing business in Yarraville. However, the retail clothing industry suffered a downturn in profitability. As a result, the appellant commenced the plastic recycling business in 2007.

10 The appellant had lived in a de facto relationship with Vo since 1982. There were six children of the relationship, ranging in ages from 27 years to nine years. The eldest child, Christine, gave evidence on the plea. After the incarceration of her parents, Christine, and the next elder sibling, have had responsibility for supporting, and caring, for their younger siblings. Other character evidence was called, and tendered.

11 On the plea, counsel for the appellant principally relied on the lack of any relevant previous convictions, his age, and the three year delay between his arrest, and his conviction. It was also put on the plea that the appellant would find a term of imprisonment difficult, because of his knowledge of the circumstances of his children, who had been left to fend for themselves.

12 In his reasons for sentence, the sentencing judge noted that the maximum penalty for each of the cultivation offences was 25 years' imprisonment, the maximum penalty for the trafficking offence was 15 years' imprisonment, and the maximum sentence for each of the theft offences was 10 years' imprisonment. His Honour considered that the appellant was clearly a principal offender. He was satisfied that the enterprise was a sophisticated commercial operation for the purpose of making substantial profits from the cultivation and sale of cannabis L. The enterprise must have involved careful planning, considerable expertise and substantial financial investment. The judge considered that the appellant's offending was of a very serious kind, and that his culpability in respect of each of the offences was high. The appellant was a resourceful and intelligent person, and there could be no doubt that he had embarked on the course of criminal conduct with full knowledge of the consequences.

13 The judge also noted the matters relating to the appellant's background, to which I have referred. He described the appellant's prospects of rehabilitation as being 'cautiously ... reasonable'. The judge took into account the appellant's character evidence, and accepted that the delay in the prosecution of the appellant was a relevant factor in his favour.

14 The appellant relies on two grounds of appeal, namely:

(1) That the individual sentences, the total effective sentence, and the non-parole period, are manifestly excessive.

(2) That the sentencing judge erred in giving insufficient weight to the principle of totality, and in failing to ensure that the sentences imposed did not doubly punish the appellant with regard to the circumstances of the offending.

15 Counsel for the appellant submitted that the sentences were manifestly excessive, in that they were wholly outside the range of sentencing options available to the sentencing judge. In support of that proposition, counsel referred to the same matters which were put in mitigation on the plea, namely, the appellant's mature age, his good character, his lack of relevant previous convictions, and the period of delay between the commission of the offences and sentence, during which the appellant had been in custody. Counsel also submitted that recent cases, such as Nguyen v The Queen[1] establish that the sentence imposed was outside the permissible range.

16 In response, counsel for the respondent referred to the serious nature of the offending. In particular, counsel relied on the findings by the judge as to the appellant's high level of culpability, the sophisticated and organised nature of the enterprise involved in cultivating the substances, the fact that the appellant had not demonstrated remorse, and the finding by the judge that the appellant's prospects for rehabilitation should be regarded as cautiously reasonable. Counsel submitted that the sentences of 5 years' imprisonment for each of the commercial cultivation charges, with no orders for cumulation, were very light, particularly as the offending in the case involved the cultivation of 1150 cannabis plants at four locations over a three month period. Counsel further submitted that the charge of trafficking was a serious instance of that offence, and he submitted that the sentence imposed by the judge, for that offence, with no cumulation, was lenient. Counsel acknowledged the sentences of 21 months' imprisonment, in respect of each of the four charges relating to the theft of electricity, were stern sentences, but noted that they only contributed 21 months to the total effective sentence. He submitted that, in light of the amount of electricity stolen, and the manner in which it was stolen, the orders for cumulation were at the lower end of the range open to the judge.

17 In order to establish ground 1, the appellant must demonstrate that the individual sentences, or the total effective sentence, were 'wholly outside the range of sentencing options available'. In other words, the appellant must demonstrate that it was not reasonably open to the judge to impose those sentences, if the judge had given appropriate weight to the circumstances relating to the offending and the circumstances relating to the offender.[2] As Maxwell P observed in R v Abbott,[3] the requirement is stringent, giving proper recognition to the fact that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where error is properly shown.

18 In the present case, I consider that, taken together, the sentences imposed for the four charges of cultivating a commercial quantity of narcotic plants were reasonably lenient. As the sentencing judge observed, the enterprise, undertaken by the appellant at each of the four premises, was relatively sophisticated and well organised. It was clearly the product of careful planning, expertise, and financial investment. It was directed to financial gain. In other words, the motive was greed. In those circumstances, a combined sentence of five years' imprisonment, in respect of the first four charges was, as I stated, lenient.

19 In further support of the contention that the sentences, in respect of the four individual charges of cultivation, were manifestly excessive, the applicant relied on the fact that the judge imposed the same sentence, five years' imprisonment, in relation to each of the four charges, notwithstanding that there were significant differences between the amount of cannabis L plants cultivated at the individual premises, and that there were differences in the periods of time to which the particular charges related.

20 It would seem that the judge treated the offences, involved in the first four charges, as part of the one enterprise. It was recognised during oral argument that the judge had made no order for cumulation in respect of the sentences imposed on counts 2, 3 and 4. That methodology appears to have been adopted because the judge treated the four premises under cultivation as one enterprise. It was open to his Honour to treat the appellant's offending in that way, and to make no orders as to cumulation. Alternatively, his Honour could have imposed slightly different sentences, in respect of each of the first four counts, to reflect the different factors to which counsel has referred, and made orders for cumulation.

21 As I have already stated, the method by which the judge imposed sentences for the first four charges resulted in an overall sentence, in respect of those charges, which was lenient. If, on the other hand, the judge had sentenced differently for each of the four charges, and had made an appropriate order for cumulation in respect of the second, third and fourth charges, it could confidently be concluded that the overall sentence for the first four charges, would, at the least, have been the same as that imposed by the judge, namely five years' imprisonment. In that way, the criticism made by the applicant's counsel, of the individual sentences in the first four charges, does not advance the proposition by the applicant, namely, that the sentences imposed upon him were manifestly excessive.

22 I also regard the sentence of three years and six months' imprisonment, on the charge of trafficking in a drug of dependence, to be well within range. The charge concerned a serious instance of trafficking. It involved 9.63 kilogram of cannabis L. The maximum sentence for the offence was 15 years' imprisonment. The order, that there be no cumulation, no doubt was a recognition by the sentencing judge that the trafficking was part and parcel of the cultivation of the substance. In my view, the sentence for that charge was within range.

23 The judge, who gave leave to the appellant to appeal against sentence, described the sentences on each of the four charges of theft of electricity as being 'stern'. I respectfully agree with that description. However, the theft involved the employment of sophisticated means. It was premeditated, for the purposes of undertaking an enterprise, the motive of which was greed. In such a case, in my view, the principles of denunciation and general deterrence are of significance. In particular, such offending not only increases the profitability of the illicit enterprise which is being undertaken, but it also is designed to conceal that enterprise from detection. In those circumstances, I do not consider the sentences, for the four charges of theft of electricity, to be manifestly excessive.

24 Further, I do not regard the orders for cumulation, in respect of those charges, to have produced a total effective sentence which is manifestly excessive. While the theft of the electricity was part and parcel of the cultivation of the narcotic plants, it was an additional factor which, as I stated, not only made the cultivation more profitable, but also was important in concealing the enterprise. As such, it added to the offences of cultivation and trafficking, which were subject of the first five charges. In those circumstances, in my view, the orders for cumulation, totalling 21 months, were not manifestly excessive. Nor did they result in a total effective sentence which was manifestly excessive.

25 In support of his submissions, counsel for the appellant referred to the sentences imposed in a number of previous cases, which were summarised in a chart attached to the judgment of this Court in Nguyen v The Queen.[4] That chart, and similar information, is of course relevant to a determination of the applicable range of sentences in respect of the particular offence. However, as has been observed in other cases, the value of such information is limited. In particular, the chart does not contain information as to the particular circumstances of the offending, or of the offences. As the High Court observed in Hili v The Queen,[5] in each case, the circumstances attending the offending, and the personal circumstances of each of the offenders, are so varied that any analysis of previous cases provides, at best, only limited information as to the range of sentences imposed in respect of a particular offence. Further, as pointed out by counsel for the respondent, it is possible to identify other cases in which sentences have been imposed, that were more substantial than those in the cases contained in the chart attached to the reasons for judgment of the court in Nguyen v The Queen.[6]

26 In conclusion, then, the appellant was sentenced to a term of imprisonment of six months and nine years' imprisonment, with a non-parole period of four years and nine months' imprisonment. He received that sentence for conducting, over a period of three months, a sophisticated enterprise of cultivating a prohibited sentence, cannabis L, at four premises, one of which constituted the home in which his six children were living. The enterprise involved the cultivation of a large amount of cannabis L plants. The means by which it was undertaken involved, among other things, the deliberate theft of electricity. The only motive was greed. Notwithstanding the mitigating circumstances relied on on the plea, and on appeal, I am far from persuaded that the total effective sentence, and the non-parole period, imposed in this case, could be described as being manifestly excessive.

Whether the judge failed to give sufficient weight to the principle of totality, and failed to ensure that the sentences did not involve double punishment

27 For the reasons which I have already set out, I do not consider that the individual sentences, or the total effective sentence, failed to take into account the principle of totality. In particular, they did not result in a sentence which was manifestly excessive, or which, because of the process of cumulation, resulted in a sentence which was inappropriately harsh.

28 It was submitted, on behalf of the appellant, that the sentences involved double punishment, in that, all the offences, which were the subject of the charges, were committed simultaneously. In particular, it was submitted that the theft offences formed a necessary and integral part of the cultivation offences, so that the cumulation of 21 months, in respect of the four theft offences, involved a degree of double punishment. Counsel accepted that, to some extent, the offending involved in the theft charges was additional to the offending involved in the cultivation and trafficking charges. However counsel submitted that the amounts of cumulation in respect of the theft charges, ordered by the judge, were such as to give rise to an inference that there was an element of double punishment involved in the partial cumulation of the sentences, in respect of the theft charges, on the sentences for the cultivation and trafficking charges.

29 In support of that proposition, counsel for the appellant relied on the statement of the High Court in Pearce v The Queen,[7] to the effect that:

To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just desserts.

30 It is true that the theft of the electricity formed an important part of the enterprise which was the basis of the four charges of cultivating a prohibited substance. However, as I have already noted, the four offences of theft of electricity added to those offences, in two important ways, namely, it made the enterprise more profitable, and it assisted in the concealment of that enterprise. Although in finding that the method of cultivation was sophisticated, the judge took into account all aspects of the hydroponic system, nevertheless the actual theft of the electricity was a discrete offence separate from the cultivation. In that way, it was appropriate, in my view, that there be some measure of accumulation, in respect of the sentences imposed for those four charges. Further, it was appropriate that there be a measure of accumulation between each of those four charges. The theft charges were not amenable to treatment as one enterprise. They involved four acts of theft, at four separate premises. There were two different criterions of the theft. I do not consider that the amount of accumulation, namely, five months in relation to three of the charges, and six months in relation to one charge, was such that it resulted in, or bespoke, any measure of double punishment of the appellant. Accordingly, ground 2 of the grounds of appeal is not made out.

31 As a result of the conviction of the appellant on count 1, he fell to be sentenced as a serious drug offender for the purposes of Part 2A of the Sentencing Act 1991. However, in the course of the plea, the prosecutor made a 'concession' that the prosecution did not seek to have the applicant sentenced as a serious drug offender. In my view, it was inappropriate that such a 'concession' be made by the prosecution. In particular, it was not for the prosecution to 'waive' the application of Part 2A of the Sentencing Act 1991. Those provisions are part of the law of Victoria, as enacted by Parliament. It was appropriate that the prosecution not seek to have a disproportionate sentence imposed on the appellant for the purposes of protecting the community, pursuant to s 6D of the Sentencing Act 1991. However, as a result of the appellant's conviction on count 1, s 6E of the Act applied, which required each term of imprisonment imposed by the judge, for counts 2, 3 and 4, to be served cumulatively, unless 'otherwise directed' by the judge. It was necessary for the judge, in the present case, to consider the application of s 6E.

32 In the course of submissions before us, counsel for the respondent submitted that, if there were any error in the sentences imposed by the judge, and if this Court were to re-sentence the appellant, that might result in a more substantial sentence being imposed upon the appellant, because of the operation of s 6E of the Sentencing Act. I have already concluded that the appellant has failed to make out any relevant error in the sentence imposed by the sentencing judge. If, however, I had concluded that there were relevant error, I would not have considered that this was an appropriate case in which to impose a higher sentence. In particular, if necessary, I would have considered this to be an appropriate case in which the court should 'otherwise direct' under s 6E, and not make an order for complete cumulation of the sentences imposed in respect of counts 2, 3 and 4. I am of that view because of the concession made by the prosecutor in the course of the plea, and because the respondent, in its written case, did not raise the application of Part 2A of the Sentencing Act 1991, nor did it foreshadow a submission that, if the appellant's appeal were allowed, the court should impose a higher sentence.

33 For the foregoing reasons, the appellant has not made out either of the grounds of appeals. It follows that the appeal against sentence should be dismissed.

[2] R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306, 309 (Maxwell P); Clarkson v The Queen [2011] VSCA 157; (2011) 212 A Crim R 72, 95 [89].

[5] [2010] HCA 45; (2010) 242 CLR 520, 535 [48]; Hudson v The Queen (2010) 30 VR 610, 616-618, [27]-[34] (Ashley, Redlich and Harper JJA); Hasan v The Queen (2010) 31 VR 28, 38-41 [44]-[53] (Maxwell P, Redlich and Harper JJA).

[6] See for example Mustica v The Queen [2011] VSCA 79; (2011) 31 VR 367.

[7] (1998) 194 CLR 610, 623 [40] (McHugh, Hayne and Callinan JJA).

Poisons and Controlled Substances Act 1981

Nguyen v The Queen [2013] VSCA 63

At a glance

Court

Decision date

Before

Source

Judgment (47 paragraphs)

Nguyen v The Queen [2013] VSCA 63 (25 March 2013)

Parties

Legislation Cited (1)

Cases Cited (5)