Nguyen v The Queen [2017] VSCA 100

1 The applicant seeks leave to appeal a sentence of four years' imprisonment with a non-parole period of two years and six months imposed on one charge of cultivating a commercial quantity of a narcotic plant. He submits that the sentence is manifestly excessive given his limited role in the offending and current sentencing practices for that level of offending.

2 We reject this submission. Contrary to the applicant's submission, an offender need not be characterised as a 'principal' or an 'organiser' to receive a sentence of this magnitude. As the applicant conceded, he played a 'significant' and 'ongoing' role in the joint criminal enterprise.

3 The applicant also submits that mitigatory weight should have been given to the length of time he spent on remand and the period he spent in lockdown due to the 2015 Metropolitan Remand Centre riots ('the 2015 MRC riots'). We accept that a significant time spent in lockdown may be considered as a mitigatory factor. However, we consider the mitigatory weight of the applicant's experience on remand was not of such an order that the failure to take it into consideration constituted a material error. Were we to reopen the sentencing discretion for such error, we would not impose a less severe sentence.

4 The applicant pleaded guilty to one charge of cultivating a commercial quantity of a narcotic plant and was sentenced by her Honour Judge Pullen on 13 May 2016 as follows:[1]

Cultivate narcotic plant - commercial quantity [Drugs, Poisons and Controlled Substances Act 1981, s 72A]

5 years and 6 months' imprisonment with 4 year non-parole period

5 The applicant seeks to appeal the sentence imposed on two grounds. Firstly, that the sentencing judge erred in failing to give any mitigating weight to the added burden of imprisonment arising from the long period the applicant had served on remand and the long period that was spent in lockdown conditions due to the 2015 MRC riots. Secondly, that the sentence is manifestly excessive in the light of current sentencing practices and the applicant's limited role in the offending.

6 In response, the Crown submits that the judge did not err and that even if she did err, any error was not a material error. The sentence imposed was not, it submits, manifestly excessive.

Circumstances of the offending****[2]

7 The applicant and Hana Nguyen ('Hana') attended a real estate agent on 21 November 2014 and completed a 12 month residential tenancy agreement and bond lodgement form for a property at Manningham Road, Doncaster. The applicant falsely introduced Hana to the property manager as his wife.[3] The applicant paid the bond amount and one month's rent in cash. The tenancy commenced on 25 November 2014. From around February 2015, the applicant's actual wife, Pham, observed that the applicant was regularly absent from their home until at least midnight and often did not return home at all.

8 Peter Dimmy, a local resident near the Doncaster property, noticed that the property had been leased. He did not see anyone living at the address but would sometimes see a light on. He also noticed dogs at the property, barking frequently. In particular, the dogs were heard barking constantly from around 6:00 pm on 17 February 2015 and throughout the whole of the following day and night. He called police early on the morning of 19 February 2015 to complain and police attended at 2:40 am in response to that call. Upon arrival at the property, Sergeant Farrell observed a car with its boot open in the carport and four dogs in the backyard jumping in and out of the car boot. He saw lights on and could hear running water from inside the house. Police gained entry to the property at approximately 3:00 am after they had no response to knocking at the door.

9 Police found three rooms devoted to the hydroponic cultivation of cannabis. The windows in these rooms were boarded up with timber and black plastic sheeting. Police left and obtained a search warrant which was later executed at 8:15 am. Eighty six plants in various stages of development with a weight of 91.397kg - later analysed as being Cannabis L - were seized. Electrical bypass equipment, globes, shrouds, fans, a charcoal filter, water pumps, transformers, power boxes, a power board, pH readers and an eziplug were also seized.

10 An electrical contractor who attended the property observed an illegal meter bypass to the property.

11 Personal items were found at the property suggesting that the property was lived in. A toothbrush was tested for DNA, with the results suggesting two contributors of DNA in the bristles and head. The applicant's DNA profile matched one contributor and the other was a Ms Thi Van Tran ('Tran').

12 The four dogs were scanned for microchips. One was registered to the applicant, another to the applicant's wife and one to a 'Tim Trevorrow'.

13 On 20 February 2015 police searched the applicant's home address at Cairnlea, locating letters regarding the dog owned by Tim Trevorrow, copies of documents associated with the rental of the Doncaster property, a travel invoice in relation to an airfare from Melbourne to Hanoi for Tran and various drivers' licences. Black polyfilm, a stealth hyperfan, twist ties and silver ducting were located in the garage, similar to those used in the hydroponic setup at the Doncaster property. The Crown position was that the applicant intended to use these items to continue the cultivation.

14 The applicant was arrested and interviewed on 20 February 2015. He stated that he had met an overseas student, Tran, in or around June or July 2014 and had commenced a relationship with her. In October 2014 she told him she was pregnant and in November 2014 asked him to pay her school fees. He refused to do so, and about a week later she informed him someone else called 'Cuong Do' ('Do') had paid the fees for her. The applicant stated that Do had arranged for Tran to live in the Doncaster property, but had asked for the applicant's ID to secure the property. He had attended the real estate agent with Tran to sign the rental agreement but Do had paid the bond and rent. The applicant admitted that he kept copies of the rental documents at his home address. The applicant stated that he had been to the Doncaster property about four or five times in total, spending a number of hours there. Tran had told him that she owed Do money and that he wanted her to do something for her to repay the debt. The applicant knew the property was being used to cultivate cannabis but did not tell police because Tran was finishing a crop for Do as a means of repaying her debt to Do. The applicant estimated that there were 50 to 60 cannabis plants grown in two bedrooms and the living room. The applicant denied actively assisting in the cultivation of the plants. He admitted that one of the dogs at the property belonged to him and the other to his wife and admitted that he used a toothbrush at the property. He stated that items found in the garage at his Cairnlea property had been stored there at Do's request and that he knew that the items were to be used for the purpose of cultivating the cannabis crop. He became aware that the police were in attendance at the Doncaster property because Do and his brother visited him and accused him of calling the police. Following that visit, he went to the Sunshine police to tell them what had been happening.

15 Neither Tran nor Do were charged in relation to the matter.

16 The applicant submits that his sentence is manifestly excessive given his limited role in the offending. In oral submissions, the applicant accepted that he played a 'significant' 'critical' and 'ongoing' role but submitted that he was neither a principal nor organiser. The Crown submitted that, consistent with the judge's limited findings, the applicant should be viewed as a member of a joint criminal enterprise.

17 As was recognised in Nam Son Nguyen,[4] it may be difficult to determine how an offender should be characterised within a criminal enterprise and it is not essential that the offender's position within the hierarchy be categorised. What is important is to focus on what the offender did.

18 The necessity of categorising the role of an offender was rejected by the High Court in R v Olbrich.[5] Gleeson CJ, Gaudron, Hayne and Callinan JJ stated that:

It is understandable that, in order to promote consistency in sentencing, appellate courts, when expressing views about sentences for drug offences, have sometimes categorised the role of an offender, where it is known, in a scheme of importation or distribution. Similarly, sentencing judges who are dealing with several co-offenders may consider such categorisation relevant in differentiating between individuals. However, the utility of such an exercise is necessarily limited by the extent to which the material facts are known. What may be a convenient shorthand method of describing facts of particular cases should not be elevated to an essential task to be undertaken in every case, regardless of whether it is possible or appropriate.[6]

... a distinction between 'couriers' and 'principals' may prove a useful shorthand description of different kinds of participation in a single enterprise. And it may be that in the circumstances of a particular case, different levels of culpability might be identified by adopting those terms. But this was not such a case. Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a 'courier' or a 'principal' must not obscure the assessment of what the offender did.[7]

19 In R v Harris[8] the Court of Appeal of England and Wales observed that one should be cautious about assessing the culpability of an offender on the basis of their status in the hierarchy of a criminal enterprise:

[T]he position of the minder in any given case will depend upon the amount of drugs involved and what inferences can properly be drawn from the surrounding circumstances as to the part he was playing in the overall supply of the drugs.[9]

20 The applicant played an integral part in leasing the premises. The purpose of his lease of the premises was to embark upon the illegal enterprise of cultivating cannabis. He made all necessary leasing payments thereby ensuring continuity of the illegal activity. His motive for his active participation remains uncertain. In his interview he proffered the explanation that it was to assist Tran in repaying Do for the money he had given her. The report of the psychologist, Stephen Gault, records the applicant as saying he did so to assist Tran in repaying her gambling debt. On the plea the judge was told that she could act upon the facts contained within Mr Gault's report. A third possibility emerged in the written submissions on the plea. It was submitted that the applicant suffered from a pathological gambling addiction. Not surprisingly, the applicant's motive for the offending was not the subject of a finding by the sentencing judge.

21 We do not accept that the absence of a finding that the applicant was a principal required the imposition of a less severe sentence. The sentence imposed properly reflects the objective gravity of his 'significant', 'critical' and 'ongoing' role in the criminal enterprise.

22 The applicant was remanded in custody from 20 February 2015 until he was sentenced on 13 May 2016. As a result of the 2015 MRC riots, the applicant spent four weeks in 23-hour lockdown. He submits that the burden of imprisonment was greater than if he were a sentenced prisoner due to the length of time he spent on remand and the long period spent in lockdown conditions.

23 The sentencing judge considered that the length of time the applicant spent on remand was a direct result of the length of time that he maintained that he was not guilty of the offence to which he later pleaded guilty. Her Honour further considered that although the remand conditions as a result of the riots may have been harsh, that did not make it appropriate to mitigate the sentence.[10]

24 Time spent in lockdown during the 2015 MRC riots has been accepted as a mitigating factor by this Court.[11] In Nam Son Nguyen, this Court accepted that the riots exacerbated the rigors of confinement experienced by the appellant due to his major depression and anxiety disorder and that that had appropriately been taken into account by the sentencing judge.[12]

25 The applicant does not submit there were personal factors that differentiate his experience on remand from any other prisoner's time on remand. While his access to programs was limited during the lockdown, this was a matter of prison administration during that period. Unfortunately, the length of time he spent on remand is, as the Crown submitted, increasingly normal for cases proceeding to trial. The time he spent on remand was declared as pre-sentence detention and deducted from the time he had to serve after sentence.

26 A significant period of time spent in lockdown does make a prisoner's experience on remand more burdensome and should therefore be factored into the sentencing exercise. However, its mitigatory weight will not ordinarily be significant unless circumstances personal to the offender demonstrate that lockdown conditions were particularly burdensome for that offender. We therefore consider the sentencing judge's failure to take into account the applicant's time spent in lockdown during the 2015 MRC riots to be an error, but not a material error. Were we to reopen the sentencing discretion, we would not impose a less severe sentence.

27 For these reasons we would grant leave to appeal but dismiss the appeal.

[1] DPP v Nguyen [2016] VCC 608 ('Reasons').

[2] The circumstances of the offending are summarised from: Reasons [3]-[30].

[3] The property manager later identified the applicant from a photoboard.

[4] Nguyen v The Queen (2016) 311 FLR 289, 308-9 [56].

[5] [1999] HCA 54; (1999) 199 CLR 270.

[8] [2008] EWCA Crim 1308; [1998] 1 Cr App R (S) 38.

[11] See, eg, DPP (Cth) v Thomas [2016] VSCA 237 [244]; DPP v Basic [2016] VSCA 99 [26]; Stanley (a Pseudonym) v The Queen [2017] VSCA 54 [13].

[12] Nguyen v The Queen (2016) 311 FLR 289, 305 [42]-[44].