Nguyen v The Queen [2017] VSCA 286

Court of Appeal (Vic)|2017-10-09|Before: Mr J, Kaye JA

DPP v Ngoc Nguyen (Unreported, County Court of Victoria, Judge Mullaly, 24 March 2017)

CRIMINAL LAW - Appeal - Sentence - Plea of guilty - Cultivating commercial quantity of cannabis - Possessing prohibited weapon - Sentence of 6 years and 6 months' imprisonment with non-parole period of 4 years and 6 months - Whether applicant correctly characterised as principal - Whether sentence manifestly excessive - Role in cultivation of cannabis - Consistency in sentencing - Application for leave to appeal granted - Appeal allowed - Resentenced to 5 years' imprisonment with a non-parole period of 3 years and 6 months -

1 The applicant pleaded guilty in the County Court to one charge of cultivating a commercial quantity of cannabis at Tempy between 1 January 2016 and 22 March 2016, contrary to s 72A of the Drugs, Poisons & Controlled Substances Act 1981 ('the Act'). He also pleaded guilty to a related summary charge of possessing a prohibited weapon (namely a Samurai sword), contrary to s 5AA of the Controlled Weapons Act 1990. On the principal charge, of cultivating a commercial quantity of cannabis, the applicant was convicted and sentenced to 6 years and 6 months' imprisonment, with a non-parole period of 4 years and 6 months. On the summary charge, he was convicted and fined $200.[1]

2 The applicant seeks leave to appeal the sentence imposed on the principal charge on two grounds, namely:

(1) The judge erred in characterising his role as a 'principal cultivator';

(2) The sentence is manifestly excessive given the applicant's role in the offending and current sentencing practice.

3 The charge against the applicant arose from a drug taskforce investigation that was undertaken between October 2015 and May 2016, that targeted a suspected Vietnamese drug trafficking network.

4 On 22 March 2016, members of the taskforce executed a search warrant on a disused shop at 4-6 Sunraysia Highway, Tempy. The investigation had identified that address as a site where cannabis was being cultivated. Upon execution of the warrant, police located five rooms within the shop area that contained a substantial quantity of cannabis plants. The plants were fed by water pipes leading to adjacent rooms in which wheelie bins were used to store liquid to feed the plants. There were a large amount of electric cables connecting high powered lighting systems throughout the area, with a very complicated set of electric wires and other appliances. Heavy duty plastic sheeting had been placed on the walls of the rooms to prevent light escaping, and there were large carbon filters suspended from the ceiling to absorb the distinctive odour that was emitted by the cannabis plants. Other rooms in the shop consisted of work areas that contained a number of power boards, electrical transformers and assorted plant foods for cannabis production.

5 In five of the rooms, police found a large number of cannabis plants. In three rooms there were mature cannabis plants that occupied the entire space of the room. In total, those three rooms contained 130 large plants weighing a total of 109.69 kilograms. Another room had 50 small plants and seedlings which together weighed just over 5.68 kilograms. A fifth room had 479 grams of dried cannabis in two plastic bags.

6 In total, 167 plants were located at the premises, weighing 116.28 kilograms of fresh growing cannabis (excluding roots). The number of plants was 1.67 times the prescribed commercial quantity for the quantity of plants. The cannabis weighed 127.16 kilograms in total, which was five times the commercial quantity prescribed by the Act.

7 The applicant, who was born in September 1954, was a self-employed handyman, living in St Albans. In late 2015, he began to reside in premises in Railway Terrace, Ouyen, for the purpose of being a cultivator, handyman and renovator at the Tempy premises. A second Vietnamese male, Thanh Nguyen leased the Ouyen premises, and he also stayed in them at various times in the relevant period. The prosecution case was that the applicant was part of a syndicate involving himself, Tanh Pham, the syndicate leader, and Trung Hung Luong ('Luong') who, the prosecution alleged, was a major trafficker, but not of the scope and magnitude of Tanh Pham. It also consisted of five other persons who played lesser roles.

8 It was agreed, on the plea, that the applicant was involved in the cultivation and harvesting of cannabis at the Tempy premises, that was ultimately dried so that Luong could then traffick the cannabis in one pound amounts which were priced at $1750 per pound. Telephone intercepts indicated that Luong was financing the operation at the Tempy and Ouyen premises. On the plea, the prosecution contended that the applicant was 'a principal cultivator' for Luong, who mainly remained in Melbourne where he was involved in a wider range of trafficking activities. The prosecution contended that the applicant was entrusted by Luong to cultivate the crop at the Tempy premises for propagation of baby cannabis plants through to harvesting, so that Luong could then traffick the resulting dried cannabis in the one pound amounts referred to.

9 Police also executed a search warrant, on the same day, at the premises occupied by the applicant in Railway Terrace, Ouyen. The applicant and Thanh Nguyen were present at the time of the search. Police discovered inside a white Toyota Hiace van, owned by the applicant, an electrical distribution board and a handwritten list detailing plant supplement requirements for a six week period. Police also located a Samurai sword inside the bedroom to the premises.

10 The applicant was arrested and conveyed to Mildura Police Station, where he was interviewed through an interpreter. On questioning, he claimed he worked as a handyman and that he lived in St Albans. He said that he had been staying off and on at the Ouyen premises for two months. He confirmed that he drove the white van registered in his name to carry out work at a property 30 or 40 kilometres from Ouyen. He could not recall the address of those premises, but he described them as a large bottle shop. He claimed that he was employed to build a cool room at the premises, that the job was not finished, and that he had not been paid his full entitlement. He was initially unable to explain why keys to the premises at Tempy were located at the Railway Terrace premises.

11 At the conclusion of the interview, the applicant was released pending further inquiries. He was later re-arrested and charged. At the time of the plea in March 2017, he had spent almost one year in custody on remand. The matter proceeded by way of a straight hand up brief in September 2016 on a plea of not guilty. After negotiations, the matter resolved in March 2017. On the plea, the prosecution accepted that the applicant's plea of guilty was made at a 'relatively early' stage.

12 The applicant has one previous conviction. In February 2005, he was convicted in New South Wales in the Campbelltown District Court on one charge of supply a prohibited drug of an indictable quantity (not cannabis), and was sentenced to imprisonment for 4 years, with a non-parole period of 2 years and 6 months.

Evidence concerning applicant's position in syndicate

13 The plea, and the judge's reasons, focussed mainly on the issue of the role and position of the applicant in the cannabis cultivation syndicate. The principal evidence, as to those issues, consisted of the applicant's connection to the Tempy property, the functions that he performed at that property, and evidence of telephone communications between the applicant and Luong during the charged period. Examination of call charge records relating to two mobile telephone numbers, used by the applicant, revealed that between 1 September 2015 and 1 April 2016 there were 273 calls made between the applicant's telephone and the mobile telephone of Luong. In addition, as a result of telephone intercepts, investigators recorded nine telephone calls and/or SMS messages between the telephone of Luong and the telephone of the applicant between 14 January and 24 March 2016. The content of those communications was placed before the judge on the plea, and further reference will be made to them later in these reasons.

14 At the commencement of the plea, counsel for the applicant told the judge that the applicant's involvement in the syndicate commenced when he was engaged to perform handyman work at Tempy. When he was performing that work, it became apparent to him that it was connected with the cultivation of cannabis. At that time, he initially was travelling between Melbourne and Tempy performing other work in Melbourne, but, subsequently, he became heavily involved in the operation at Temby. Counsel told the judge that the applicant did not share in any of the profits of the syndicate, but rather 'was there effectively as an employee'. The following exchange then ensued between the judge and counsel:

HIS HONOUR: How do I know that?

MS CASEY: That's accepted

HIS HONOUR: I mean you can assert it but he's the principal

MS CASEY: Well, there's no evidence

HIS HONOUR: He's the principal cultivator.

MS CASEY: That's the way the Crown - no, they say he is a principal cultivator not the principal cultivator for these premises.

HIS HONOUR: Who's the other principal - who else has got anything to do with it?

MS CASEY: Tanh Nguyen, who's

HIS HONOUR: On the basis of his presence?

MS CASEY: That he's seen and spoken to by police at the time, his fingerprints are also on all of the items

HIS HONOUR: Yes.

MS CASEY: He's there regularly, they're living together at Ouyen.

HIS HONOUR: Right, so the two of them are the principal cultivators.

MS CASEY: Yes.

HIS HONOUR: All right.

15 Counsel then outlined to the judge personal matters relating to the applicant. He was born in Vietnam in 1954, and he had limited education, attending school to the end of Year 7. He was then conscripted into the North Vietnamese Army during the Vietnam War between 1972 and 1975. After the war, he worked in the fishing industry in his home town in Vietnam. He married at the age of 24 years, and he has three adult children.

16 The applicant left Vietnam in 1988 and moved to Hong Kong. He subsequently came to Australia as a refugee in 1991, and he is now an Australian citizen. After arriving in Australia, he worked in Sydney as a sewing machinist for eight years, and he then came to Melbourne, where he worked from time to time in a self-employed capacity mowing lawns and gardening, and as a handyman.

17 As noted above, the applicant served a term of imprisonment in New South Wales, being released in 2007. On his release, his wife and children had changed residence, and he has had no further contact with them. The applicant is isolated in custody, with telephone contact only with one person who is currently in Vietnam. He has a limited command of the English language, and, at the time of the plea, he was working as a painter in Port Philip Prison.

18 At the conclusion of counsel's submissions, the judge remarked that the applicant was a person to whom the recent decision of the Court in Nguyen v The Queen[2] ('Nguyen') applied, on the grounds that he was not a crop sitter. In the course of submissions made in response on behalf of the prosecution, the judge further remarked '... this seemed to be the sort of case the Court of Appeal was speaking about in Nguyen'. Subsequently, in her reply submissions, counsel for the applicant contended '... that really is his role, is that he is managing this crop'. Counsel submitted that Luong was the principal, Tanh was the organiser, and the applicant 'sits below both of them'.

19 In his reasons for sentence, the judge noted that the information that the police obtained from the intercepted calls and the SMS messages made it clear that the applicant was a 'significant cultivator producing cannabis for harvest and ultimately for sale'. He considered that the applicant was an important - 'or in my view principal' - cultivator growing plants to yield significant amounts of cannabis for entrepreneurial purposes. The judge stated that it was unclear whether the applicant was 'just under', or at the same level of, Thanh Nguyen, but, with the benefit of the doubt, he considered that the applicant was 'less important as an organiser than he'.

20 The judge noted that the cultivation methods were sophisticated, that the total amount of cannabis was 127.16 kilograms, and that considerable efforts and expense had been devoted to setting up the cultivation enterprise. He referred to the view expressed by this Court in Nguyen, that penalties, for principals cultivating not less than a commercial quantity of cannabis, were currently inadequate and should be increased. The judge then stated:

In my view you fit squarely into the category of a principal cultivator well embedded in entrepreneurial drug trade. Yours is a serious example of cultivation in not less than a commercial quantity. The volume is five times in weight what qualifies as a commercial quantity and 1.67 times the commercial quantity for the number of plants.[3]

21 The judge thus rejected the proposition that the applicant was no more than a crop sitter who had a limited role in the syndicate. He then referred to the applicant's background including his previous conviction. He noted that the applicant was isolated in prison, but stated that there was a need for denunciation, specific deterrence and general deterrence. The judge accepted that the applicant's early plea of guilty was important, and that it revealed that the applicant had taken responsibility for the crime.

22 Counsel for the applicant submitted that the judge erred in finding that the applicant was a principal cultivator of the cannabis crop at the Tempy premises. Counsel noted that the applicant's co-accused, Luong, had been involved in extensive offending, that was not limited to the cannabis crop that was under cultivation at the Tempy premises. Counsel contended that the fact that there were 273 telephone calls between Luong and the applicant during the period charged was an insufficient basis for the judge to infer that the applicant knew of, or participated in, the more extensive drug operations undertaken by Luong. It was further contended that the nine intercepted calls demonstrate that Luong was a principal cultivator, financing the operation, and providing instructions to the applicant.

23 In addition, counsel noted that the co-accused, Thanh Nguyen's criminality was of a higher level than that of the applicant, and that he was the organiser of the operation. Counsel noted that there was no evidence that the applicant owned the shop at Tempy, or any of the equipment that was used in it. Nor was there any evidence that he was involved in setting up the electricity bypass at the premises, or in profit sharing in the cultivation. Rather, it was submitted, the applicant's reward was a fixed fee payable on completion of the harvest. In those circumstances, it was contended that the judge imposed a sentence on the applicant that was beyond the sentencing range appropriate, taking into account his role in the offending, and his personal circumstances.

24 In response, counsel for the respondent noted that, on the plea, counsel for the applicant had accepted the applicant was one of the two persons who were the 'principal cultivators' of the crop. It was contended that, in light of the size of the crop, and the sophistication of the methods by which it was being cultivated at the Tempy premises, the judge was correct to conclude that the applicant's role was such as to place him within the category of offenders who were susceptible to an 'uplift' in sentencing as outlined in Nguyen.

25 In support of that submission, counsel for the respondent pointed out that the applicant enjoyed a high level of trust amongst his associates in the cultivation of the crop. In addition, the applicant had a serious relevant previous conviction, for which he had been sentenced, in 2005, to a substantial term of imprisonment. Accordingly, it was submitted, it was well open to the judge to place the applicant in the category of offenders susceptible to the uplift of sentence spoken of in Nguyen. In making that submission, counsel for the respondent, properly, noted that the sentence imposed on the applicant was perhaps the highest sentence that has been reviewed by this Court in respect of cultivation of a commercial quantity of cannabis.

26 The ground of appeal sought to be relied on by the applicant, and thus the submissions on this application, focused on the characterisation of the role played by the applicant in the cultivation of the cannabis at the Tempy property, and, in particular, the description by the judge of the applicant as a 'principal cultivator' of the crop.

27 Obviously, the role of an offender in a drug cultivation enterprise is an important factor relevant to an assessment of the culpability of the offender. In cases such as the present case, quite commonly there is no direct evidence as to the role of the offender in the enterprise, and the court is required to consider whether it might be proven sufficiently by a process of inference from the established facts. However, as recognised by the Court in Nguyen,[4] it is not always possible to specify the position and role of an offender in a drug trafficking or drug cultivation hierarchy.[5] In any event, it is important that any label that is attached to the offender's role should not obscure, or distract attention from, the various factors that are relevant to a proper assessment of the gravity of the offending in a particular case. Those factors ordinarily include matters such as the tasks performed by the offender in the enterprise, the nature of his relationship with the principals or leaders of the enterprise, the degree of trust and responsibility reposed in the offender, the size, scope and sophistication of the enterprise, and any expectation of the offender in respect of the rewards to be derived from the enterprise.

28 In that respect, in Lieu v The Queen,[6] Beach and Kaye JJA stated:

The principles applicable to the offences to which the applicant pleaded guilty are well established, and need not be rehearsed at length. Essentially, the determination of the seriousness of the offending is informed by a range of factors, including the role of the offender, the position of the offender in the drug trafficking (or importing) hierarchy, the nature and extent of the offender's involvement in the enterprise, the sophistication of the enterprise, and the amount of drugs involved, or intended to be involved, in the enterprise. In describing the role of the offender in the hierarchy, it is important that any shorthand label attaching to that role does not obscure the nature and extent of the actions and involvement of the offender.

In determining the seriousness of the offence, the weight or amount of the drugs involved is a factor of some importance. That circumstance is relevant to determining the dimension of the enterprise in which the offender is involved, and the amount of profit that was expected from the enterprise, which generally constitutes the primary if not sole motive for the offending. The weight or amount of the drugs involved might also indicate that the enterprise, in which the offender has been involved, was far reaching, and sophisticated. On the other hand, that factor, per se, is not necessarily the primary or overriding factor in determining the gravity of the offending under consideration.[7]

29 In order to address the ground of appeal sought to be relied on by the applicant, it is necessary to consider, first, precisely what the judge meant by his characterisation of the applicant as a 'principal cultivator' of the cannabis plantation, and, secondly, whether it was open to the judge to characterise the applicant's role and position in the enterprise in that way.

30 In the course of the plea counsel for the applicant appeared to accept, or to concede, that the applicant was 'a principal cultivator' in the syndicate. That concession does not resolve the issue raised by the proposed ground of appeal. As we have noted, the determination of the appropriate sentence, in a case such as this, is not resolved by the label to be attached to the applicant or his role, but, rather, by a consideration of the content of his role and functions in the enterprise as revealed by the evidence available to the sentencing judge.

31 As mentioned, the judge described the applicant as a 'principal cultivator' growing cannabis plants for 'entrepreneurial purposes', who was 'well embedded in entrepreneurial drug trade'. In that way, it would seem, the judge regarded the applicant, not only as a person principally responsible for the task of cultivating the cannabis, but also as a member of the syndicate implicated in its entrepreneurial activities and purposes. As such, the judge sentenced the applicant on the basis that his offending came within 'the middle category of seriousness' described by the Court in Nguyen.[8] In that case, the Court appeared to contemplate that that 'category' comprised offenders who occupied a position above that of mere 'functionaries' or 'house sitters',[9] but who could properly be described as either 'principals', or discharging functions similar to 'principals', and, in particular as occupying either a leadership or organisational role, or something akin to such a role.[10]

32 The question in this application, then, is whether it was open to the judge, on the materials before him, to conclude that the applicant occupied such a role in the cannabis cultivation enterprise at the Tempy property.

33 In the present case, four factors were particularly relevant to a proper determination of the role and position of the applicant in that enterprise. In summary, they were, first, the nature and sophistication of the enterprise, secondly, the apparent structure of the enterprise and the syndicate conducting it, thirdly, the number of telephone calls between Luong and the applicant, and, fourthly, the content of the recorded telephone calls between Luong and the applicant.

34 It is clear, from the prosecution opening, that the cannabis cultivation operation at the Tempy house was substantial and quite sophisticated. For example, in one room ('room 2') there were 31 large mature cannabis plants weighing 42.26 kilograms, together with equipment, comprising 31 large white light shades, 30 cylinder globes and batons, two white transformers and three grey electric pumps, two HPM timers, one five-litre container of fertiliser, one empty container of fertiliser, three large carbon filters, four large metal fans, two small fans and a flexible shroud. That description is a fair reflection of the level of sophistication, and the dimension, of the enterprise conducted at the house. It was, by no means, a small or simple operation. Rather, it might be fairly inferred that the applicant, by playing a principal role in caring and for tending the crop, was in fact occupying an important position within the enterprise.

35 In that context, it is clear that the applicant, and Thanh Nguyen, were responsible for tending the cannabis crop, for growing it, and for cultivating it. The applicant had moved residence solely to undertake that role. He was, as such, in a position of significant trust within the cultivation enterprise. In that capacity, he received instruction from Luong, who, it was acknowledged, was the financier of the enterprise, and was in his own right a major drug trafficker.

36 It is in that respect that the significant amount of telephone calls and SMS messages that took place between the applicant and Luong between September 2015 and 1 April 2016, is significant. The frequency of those communications, and the large number of them, would, it might be inferred, be significantly greater than would have been necessary if the applicant's role was confined to that of a 'crop sitter', performing the task of a mere 'functionary'.

37 That proposition is reinforced by the content of some of the recorded calls and messages between Luong and the applicant. In the second recorded call (on 4 February at 10:07 pm), Luong discussed with the applicant the quantity of dried cannabis that was required, and the price for which each pound of dried cannabis was to be sold. In the next telephone call, made 15 minutes later, Luong confirmed that he was selling '24 pieces' for $42,000. It might be thought that it would not have been relevant for Luong to have discussed matters of price with the applicant, if he did not occupy a position as a principal in the enterprise. On 10 February 2016, Luong sent an SMS message to the applicant which, in effect, confirmed the sale of 21 of the pieces for $1750 each. In the next recorded call, on 23 February, the two men discussed the progress of the crop that was under cultivation.

38 In the context of the nature and scope of the cultivation enterprise at the house at Tempy, the applicant's function of being responsible for the cultivation of the cannabis plants at those premises, and the position of Luong in the syndicate, the amount of phone calls between Luong and the applicant, and the content of those calls, to which I have referred, is revealing. Taken together, the circumstantial evidence supported a conclusion that the applicant did, as contended by the prosecution, occupy a position as a principal cultivator at the house at Tempy, in the sense that he was not involved at the level of a mere 'crop sitter' or 'functionary', but, rather, at the level of a principal in the drug cultivation enterprise conducted at those premises. There was no direct evidence of the remuneration or reward received or expected by the applicant for his role. However, the content of the recorded communications between the applicant and Luong was a sufficient basis for the conclusion that the applicant had an interest in the revenue to be derived by the syndicate from the cultivation at the premises that extended beyond that of mere idle curiosity, and that the applicant was a participant in the syndicate at a level that was above that of a hired hand.

39 The applicant did not adduce any evidence to offset that conclusion, or to establish that he might have occupied a lesser role in the enterprise. In the absence of any such evidence, the combined weight of the circumstances, outlined above, was sufficient to justify the factual conclusion by the judge that the applicant was 'embedded in the entrepreneurial drug syndicate' as a 'principal cultivator' of the cannabis crop at the Tempy premises.

40 Accordingly, in our view, the judge did not err in his characterisation of the applicant as a 'principal cultivator' of the cannabis at the Tempy premises, and was entitled, on all the evidence, to conclude that the applicant functioned at the level of principal of the criminal enterprise. It follows that the applicant has not made out ground 1.

41 The applicant contended that the sentence is manifestly excessive given the applicant's role in the offending and current sentencing practice. In developing this submission it was accepted that the learned sentencing judge was entitled to find that the applicant was a trusted employee with some horticulture expertise and thus at a level above that of a mere 'crop sitter', but that it was not open to his Honour to conclude that his role extended to that of a principal[11]. To the extent that his Honour used the phrase 'principal cultivator', it was argued that it involved a conflation of the notion of a principal and the notion of an expert cultivator who was an employee with no equity in the cultivation. It followed, so the argument went, that the sentence was one appropriate to a principal - a category which does not include the applicant.

42 In support of the contention that the sentence is substantially out of step with current sentencing practices,[12] the applicant produced a table of recent sentences as part of his amended written case. The respondent fleshed out this table with details of each sentenced individual's role in the criminal enterprise. We have reproduced that table as Annexure A.

43 The respondent contended that his Honour was entitled to characterise the applicant's role as a 'principal cultivator' and that ground 1 ought be rejected. As to manifest excess, the respondent was a little more cautious, accepting that a grant of leave be appropriate, but arguing the need for general and specific deterrence and denunciation meant that the sentence was within the available range.

44 To make good this ground, the applicant must demonstrate that the sentence imposed was 'wholly outside the range of sentencing options'[13]. The impugned sentence must be demonstrated to be so excessive as to bespeak error in the exercise of the sentencing discretion, notwithstanding that no specific reasoning error can be identified.[14] This is generally a difficult ground to make out.

45 To the extent that this ground relied on disputing the characterisation of the applicant's role as a 'principal cultivator' functioning at the level of a principal in the criminal enterprise, for the reasons expressed in paragraphs [26] to [40] above, in our view, this contention has not been established. That conclusion, however, does not dispose of this ground. The sentence is still higher than any previous sentence for this offence that has been considered by this Court, and, perhaps more importantly, it is higher than all but two of the 58 sentences imposed by the County Court since the appeal of Nguyen[15] was determined.

46 This Court has cautioned against placing undue reliance on tables of sentences without a proper examination of the facts and principles relevant to each individual case.[16] The table annexed to these reasons is, however, of assistance in illustrating current sentencing practices in the light of the roles played in the relevant criminal enterprises by those sentenced and we are grateful to the parties for its production. Having said that, the table does not purport to descend into the personal circumstances of each offender. It is a broad guide to current sentences imposed for this offence, but no more than that.

47 In paragraphs [34] to [38] of these reasons, we have set out the circumstantial evidence that led his Honour to conclude that the applicant was functioning at the level of a principal at the Tempy property. The cultivation operation was substantial and quite sophisticated and the applicant, together with Thanh Nguyen, tended the crop and cultivated it. He was obviously trusted by Luong, the financier, and was in very regular contact with him over a period of many months. Luong discussed with the applicant the sale of harvested cannabis and the progress of the crop. As we have said, the combination of these factors entitled his Honour to conclude that the applicant was a principal in the criminal enterprise and sentence him accordingly. Notwithstanding this, however, the fact that a person falls to be considered a principal and thus liable to an incremental 'uplift' in sentence, ought not obscure or blur the applicant's true place and role in the structure of the enterprise. It is clear that the applicant's role was subservient to Than Nguyen and Truong Long; Luong was, it seems, the financier and driving force for the enterprise, controlling its activities from set up to sale. There is no evidence that the applicant was involved in establishing the sophisticated set up of the Tempy operation, and any equity he may have had in the business was undefined. Clearly, he expected to be paid for his efforts from the profits of the enterprise, and given his senior managerial role, that payment was likely to be substantial. He also took a lively interest in the affairs of the business.

48 As we have mentioned, in order to assess the degree of criminality of the applicant, it is important to focus not on any shorthand label that might be attached to his role in the cannabis cultivation, but rather on the substance of his role and his position in the syndicate. Our conclusion on ground 1 has effect that the views expressed by the Court in Nguyen[17] apply, as it might be fairly concluded that the applicant fell within the broad category of offenders to which those views were directed. Nevertheless, making full allowance for the 'uplift' of sentences to be imposed on offenders falling within that category, we consider that, in light of the actual role and position of the applicant in the cultivation operation, and in view of his mitigating circumstances, the head sentence, and the non-parole period, imposed by the judge were wholly outside the range of sentencing options available. In our view, the sentences imposed on the applicant might fairly be described as being more appropriate to an offender who is in charge of, or responsible for the direction of, a syndicate involved in the cultivation of cannabis of the scale and sophistication of that which was conducted at the premises at Tempy. We are fortified in that conclusion by the current sentencing practices that are revealed by the table of cases annexed to these reasons.

49 Accordingly we consider that the head sentence and the non-parole period imposed on the applicant were manifestly excessive, and accordingly Ground 2 is made out.

50 Taking into account the functions performed by the applicant at the Tempy premises, the substance of his role and his position in the syndicate, and his previous conviction, and at the same time giving appropriate weight to his mitigating circumstances, we consider that the appellant should be re-sentenced to a term of 5 years' imprisonment with a non-parole period of 3 years and 6 months.

51 We declare that 553 days, not including today, have been served by way of pre-sentence detention. We further declare, pursuant to s 6AAA of the Sentencing Act 1990, that but for the applicant's plea of guilty we would have sentenced him to 6 years' imprisonment with a non-parole period of 4 years.

[12]: I accept that in this case it is not possible to identify precisely the role you carried out however in this offending. The crop was cultivated by you on your own premises but it would appear that at least one other person was concerned in the activity as well.

9 months in relation to Theft of Electricity charge

Found guilty in relation to Cultivate charge, pleaded guilty in relation to Theft charge.

[23]: Specific deterrence not prominent consideration.

[8]: As to where the two of you fit in the hierarchy of this cultivation enterprise**, it was accepted by counsel for the Director** that your roles in the cultivation of this substantial crop was that of (what has become known in the vernacular of cannabis grow houses) as a "crop-sitter".

[7]: Neither accused had a prior criminal history.

[15]: You went along in similar vein. Your counsel that you should be sentenced as a crop sitter and no more. The prosecution contended that this was a mid-range offence given the volume of cannabis that was found. However whichever way this is looked at, the gravity of the offending is clear. This was a significant operation worth a large amount of money, and the crop sitters play an important role.

[29] ... In respect of this matter I sentence you on the basis that you were a crop sitter.

Convicted and fined $200 in relation to Summary Offence of giving False Name

[7]: These premises were what is referred to as a "grow house" or "crop house". You were the "crop sitters".

[44]: ...I will sentence on the basis that you were each low level functionaries, but no doubt you were there to perform a necessary and crucial role.

HA and NGUYEN were sentenced as "crop sitters" who were each "low level functionaries".

[26]: That all said, when assessing your culpability, it was submitted by your respective counsel, and conceded by the prosecution, that your offending can be characterised as falling in the lowest category of seriousness which is generally reserved for offenders such as crop sitters who generally have no financial interest in the crop

[27]: I sentence you upon the basis that you each played a similar role as crop sitters attending to the crop on someone else's behalf.

[35]: In these circumstances, in my view, you Mr Pham, do sit to some degree above Mr Duong.

[36]: Having said all that, I do not lose sight of the fact that you both fall to be sentenced as crop sitters and that you are both low down on the hierarchy of moral culpability. Further, while you, Mr Pham, were closer to the leadership or directional structure of this enterprise, you were clearly not part of it.

[65]: In respect of you, Faro, and Enterprise Way, you and Luccitti were joint principals and the joint beneficial owners of the property through the superannuation fund. There was a similar level of sophistication and method adopted as that which occurred at Triholm. You personally oversaw the construction within Enterprise Way to facilitate the cultivation and establish the crop. You provided the knowledge and skill to ensure a successful crop, and continued to increase your expertise in the field, with trips overseas and importing of more specialised equipment.

[69]: You had different roles at both Triholm and Enterprise Way. Reudin's plea was on the basis that he aided and abetted you, Faro, as the principal. Reudin, in respect of Triholm, assisted in the cultivation of the crop. Faro, you leased the property, set up and conducted the business, received the franchise fee, provided continuing advice regarding the crop. Reudin, in respect of Enterprise Way, you installed the grow rooms and mezzanine floor in 2009 and 2011. You leased the factory at Waddell Court for storage of materials and equipment from Enterprise Way, and you dismantled the crop and structures at Enterprise Way.

[70]: Faro, in respect of Enterprise Way, it was an entity associated with you that owned the property. You oversaw the structures and setup to be similar to those of Triholm. You provided the knowledge and skill regarding cultivation methods, including detailed grow instructions. You were the importer and purchaser of specialised equipment from interstate and overseas.

FARO was found guilty of cultivation commercial quantity, cultivation simpliciter, possession of substances and equipment for the purposes of trafficking and possession of a drug of dependence. He was also convicted of summary charges of possession of prohibited weapon, controlled weapon, firearm under long arm licence - not stored in a secure manner, and non-prohibited person in possession of a silencer without a permit.

REUDIN pleaded guilty to one charge of cultivate commercial quantity cannabis.

[6]: ... the matters to which I have previously referred to, prove beyond reasonable doubt, your role as a principal in this commercial cannabis crop. Your

offending is mid-range offending for this particular charge.

[37]: I have previously dealt with your role in the offending in these reasons and I will not repeat them here. You have been found guilty as a principal in the cultivation of a commercial quantity of cannabis...

[47]: However, there was no evidence from which it could be inferred, beyond reasonable doubt, that the applicant had any proprietary interest in the cannabis crop, or that he played a role that could be equated to that of a partner or 'principal' in the cultivation of the crop. Any conclusion, other than that the applicant clearly played an active role in the cultivation of the crop during the period of offending, was, with respect, the product of speculation, and not appropriate inference.

Reduction in sentence on appeal as a result of the Court of Appeal's re- characterisation of the Applicant's role. HHJ Mullaly characterised the Applicant's role as being one of a principal, whose offending was "mid- range." The Court of Appeal only went as far to say that he played "an active role in the cultivation."

[35]: Prior history - 6 drug related priors, being possession offences. Other priors were dishonesty matters and 1 assault matter.

[21]: It was submitted that the offending fell towards the lower end of this offence because of your role as a crop sitter. The

Crown accepted this was your role and that there was no suggestion that you were involved in the establishment of the crop, or in the trafficking of cannabis.

[14]: The prosecution accepted during the plea that Mr Hoang's role was that of a house-sitter and also, albeit that he was

only present and is charged for the period of seven days in regard to this offence, that his role encompassed more than simply those seven days.

[15]: The summary provided by the prosecution, and the additional facts given to the Court by Mr Gullaci, would seem to indicate that this enterprise was a joint enterprise. I am not particularly sure of the roles, however clearly, your brother, Mr Hoang, was involved as were two others who were named. The fact is that each of those three persons have, subsequent to detection, removed themselves from the jurisdiction of Australia. You are the only one left to bear the brunt of this criminality.

[16]: As I say, that is not in any way to enhance your role. I accept that I am to sentence you as a house-sitter only.

HH described the Accused's role as that of a "house-sitter".

[36]: No prior convictions. Discussion of returning to Vietnam with conviction.

[14]: It was put on your behalf that the cannabis was grown by you only for your own use and to give it to others for "therapeutic purposes". In support of the latter proposition Mr Andrew Myers was called to give evidence. He swore that you had provided him with two amounts of cannabis to be passed onto Mr Myers' father in law so that he might smoke it to alleviate the pain he suffered as a result of prostate cancer. Mr Myers swore that these transactions occurred in August last year, some months prior to the instant offending

[15]: As against that, tendered as Exhibit C on the plea, were a number of screenshots from your mobile phone that demonstrated that you during the period of the dates on the indictment you were involved in the movement of cannabis in a commercial setting.

[17]: Whilst I accept that prior to the instant offending you had suppled Mr Myers with cannabis for so called "therapeutic use**", I do not accept that you committed Charge 1 on the indictment with a key purpose of supplying others with cannabis for "therapeutic use"**, although it may have been one of your motives for and an anticipated consequence of doing so. Tendered as Exhibit B on the plea were a number of photographs of the crop seized by police. The seized plants were at different stages of maturity and you had prepared an insulated grow room in your house, although at the time the police executed the warrant, there was no sign that this room had been used during the between dates on the indictment. Bearing in mind that police had earlier raided your premises on 28 November I am of the view that the room was prepared after that police raid and was therefore constructed with the cultivation of cannabis by hydroponic means in mind.

[20]: Mr Reardon of Counsel, who appeared on your behalf, submitted that your offending ought not to be regarded as serious as the offending identified as mid- range cultivation in Nguyen v R (2016) VSCA 198. I accept that submission.

HH did not accept that the use of cannabis was purely for "therapeutic use" and stated that the Accused was

"involved in the movement of cannabis in a commercial setting."

[9]: On bail when charge 1 committed. On bail for cultivating and trafficking cannabis, hence aggravating feature to offending.

[5]: ... Whilst the prosecution concede that your role was that of a crop sitter and

your culpability reduced as a result, it is also important to recognise that your role was necessary for the cultivation to flourish and to enable others to potentially profit from this illegal activity.

[9]: Deportation notice received. Unlawful in Australia.

[6]: As your counsel conceded, whatever noun is used to describe your role, whether it be principal, or not, you were involved at a very high level, in a most significant role. Whilst you may not have been the only principal, according to the instructions you gave to your counsel, you are not the instigator, you are not the architect, but you had been co-opted to do what you did. I find that you were one of the principals; although, you may not have been the only person in the same, or similar, position.

7 years on base sentence, aggregation and cumulation resulted in TES of 8 years and 3 months

TRAN pleaded guilty to trafficking a large commercial quantity of cannabis, trafficking a commercial quantity of heroin, false document offences and renting of premises for the purpose of trafficking a DofD.

HH stated that TRAN (regardless of being a principal or not) was "involved at a very high level, in a most significant role"

[12]: In relation to your role, Mr Maikantis, Exhibit D confirms that the Crown case against you is that your main role was as the procurer of the rental properties, which Mr Tran sought for the purpose of growing cannabis ... The Crown conceded, as they were bound to do, that your involvement means that you are significantly less culpable than Mr Tran.

4.5 years on base sentence, aggregation and cumulation resulted in TES of 5 years

MAIKANTIS pleaded guilty to cultivating commercial quantity of cannabis, breaching a suspended sentence and breaching a CCO.

HH stated that MAIKANTIS' "involvement means that [he was] significantly less culpable" than TRAN.

[2]: Prior history for gambling related offences, dating back to the 1970s.

[14]: Mr Chung, Exhibit C, the synopsis in relation to your involvement again confirms that your main role was as assessor of the rental properties and their suitability for hydroponic cultivation, on behalf of Mr Tran ...There is no evidence, whatsoever, to suggest you were involved in setting up the properties for hydroponic cultivation; that is, that you were involved in the equipment or the plants in any way. The Crown conceded that your role was, quote, "much lower than that of Mr Tran."

CHUNG pleaded guilty to cultivating commercial quantity cannabis.

HH relied on the prosecution's concession that CHUNG's role was "much lower" than that of TRAN's.

[17]: For the reasons referred to by the learned prosecutor, I am satisfied beyond

reasonable doubt that you played a principal role in the commercial cultivation, and that your motivation was, at least in part, for financial gain. It may be that you were also to consume some of the cannabis, but the level of your involvement and financial investment is indicative of something beyond that of a mere crop-sitter. This does not mean that you were the only principal offender. I do not speculate about this, but I am satisfied beyond reasonable doubt that you were a principal offender in this enterprise, which was of a commercial nature, rather than for purely private use.

DYER also pleaded guilty to theft of electricity, trafficking cannabis, possession of firearm and summary

charge of committing indictable offence whilst on bail.

HH stated that DYER "played a principal role" but that his level of involvement was "something beyond that of a mere crop-sitter." HH described the Accused as a "principal offender in this enterprise."

[5]: On bail for possession charges when charge 1 committed, hence aggravating feature to offending.

[22]: Relevant priors. Some burglary and theft charges.

[26]: 2011 - cultivate cannabis, sentenced in Magistrates' Court to 4 months imprisonment, suspended for 2 years.

[68]: In the end though, even if I am wrong in that respect, it is academic because I believe there are some key differences at play here. Though you are a principal, that is the architect of this cultivation and hence entirely responsible for it, there is then the absence altogether of the commercial setting and the absence of financial gain driving the enterprise, it is that fact that convinces me that the case of Nguyen ought not be applied to my task in terms of any suggested uplift and really what I am saying, probably clumsily, is that I will not place you in the mid-category of offence seriousness despite your being the principal because of the matters that are raised as to the lack of sophistication and of course the lack of commerciality in this particular act of cultivation.

Cultivation of commercial quantity of cannabis for non-financial gain. Accused was a user.

[19]: sentenced in Magistrates' Court for cultivating 8 cannabis plants, accepted small scale by LSJ.

[19]: When the crop was established you again watered and cared for the plants. You rented the premises and went there every

day or two days. At times you slept there. You told police that you were looking after the plants as your own. When they were large enough you were cut them but were to play no role in selling them. That would be left to others. You told police and I accept that you were to play no role in selling them.

[30]: I have attempted to sentence you consistent with sentencing practice and consistent with the guidance of the Court of Appeal cases to which I have been directed. They are Kieawkaew v The Queen and Hong Quan Nguyen v The Queen [2016] VSCA 269 and Nam Son v The Queen [2016] VSCA 198. There are difficulties, in that as to where you are placed within so- called categories of seriousness and in comparison with those cases. For example, these crops are individually larger than those in both cases. However, your role is less sophisticated and you were not to take part in profit. I have regard to the two cases named. However, you must also be sentenced on the basis of the circumstances individual to your case.

Involved two charges of cultivating commercial quantity of cannabis, in relation to two separate crops.

satisfied your motivation for being involved in the enterprise was not related to obtaining cannabis oil. I am prepared to accept that this was, at least, part of your motivation. On the other hand it seems compelling to me that someone must have been concerned to make a profit.

[34]: The absence of sales paraphernalia at your residence is important but not determinative of your claim of proposed self-use of the whole crop.

[35]: In the end, I am really not sure precisely what role you played

Found guilty - issue was not whether cultivation had occurred, but whether it was for commercial cultivation.

The TES included both cultivation and theft of electricity charge, however HH did not break down the sentence.

The Accused also pleaded guilty to prohibited person possessing a firearm and was convicted and fined $3000.

HH could not identify the precise role CASEY played.

[24]: Unrelated prior history - sentenced for armed robbery.

[32]: In the curious vacuum in which I must sentence you, the presumption of potential commercial gain and the harm that double

the commercial quantity of cannabis would find its way into the community, cannot be relied upon. I am left with what I regard as an unsatisfactory but exceptional circumstance whereby, notwithstanding the cultivation of a commercial quantity, there is no commercial aspect to your criminal activity of which I can be satisfied beyond reasonable doubt.

[33]: However, as I have stated, notwithstanding the gravity of cultivating a crop of cannabis of twice the commercial quantity and that you are the principal, indeed the only offender, I cannot be satisfied that the elements of gravity concerning potential profit and potential harm to the community are present in your case.

Found guilty of cultivating commercial quantity of cannabis, pleaded guilty to theft of electricity and found not guilty

[26]: One prior, theft for which received a good behaviour bond. Thirty year old offender.

that the amount cultivated by you was not far off being double the commercial quantity and that it was a sophisticated growing operation where you were the sole principal.

The Accused also pleaded guilty to theft of electricity, 1 month of which contributed to TES.

[8]: One prior, sentenced in Northern Territory Supreme Court for manslaughter.

evidence of any commercial profit or trafficking in respect to your offending. Your case can be distinguished from those where there is a sophisticated hydroponic set up with electricity bypass which is the usual type of this offence.

[14]: You will be sentenced on the basis that the crop was being grown for your own personal use, without any trafficking purposes.

Conceded that the cannabis was grown for personal use to treat pain.

Hardship requirements outlined in Markovic were found to be made out. [17]: No prior history.

more than simply tending or what is colloquially described as 'sitting the crop'. You were actively involved in renting the premises and the presentation of false documentation to facilitate this. It is clear from your actions that you knew from the beginning that you were engaging in an illegal enterprise.

[8]: It is put that your role is above that of what is usually described as a crop sitter but below that of an organiser. What that means is in some ways difficult to discern, but objectively you were an employee regardless of the tasks that you were asked to perform. You were classically, it seems, targeted to become involved in the sense that it would have been clear that you were a young foreign national with little support who was in financial difficulty. These are hallmarks often seen in what are described as crop sitters.

[9]: Your involvement in the renting of the property increases your role but it does not make you a principal or someone with a proprietary interest. I have had regard to the Court of Appeal decision in Nguyen and I do not think it can be said that you are truly a mid or high-range offender. You played a role at the direction of others over a relatively short period in relation to a single crop and importantly, as I have said on a number of occasions, you had no financial interest in it.

Youth, lack of priors, isolation - appropriate for mercy to be shown with a much lower sentence.

HH stated that the Accused was more than that of a crop sitter, but below someone who was a principal/who had a proprietary interest.

[3]: Unlawful in Australia, on student visa that had expired.

[14]: young offender, 19 years old, no prior criminal history.

[10]: You said that the owner of the property did not know about the cannabis. As to whether or not that is true, as I have

indicated, I have got very grave doubts, but the fact of the matter is that you will be sentenced on the basis that you set this crop up, you purchased the equipment and you stood to gain by selling the cannabis

Accused pleaded guilty to theft of electricity as well. 21 years of age.

HH never uses the word "principal" to describe the Accused's offending. He only goes as far to say that he set up this crop and "stood to gain by selling the cannabis."

[21]: 21 year old offender. [2]: No prior history.

[22]: The prosecution has accepted your plea of guilty on the basis that your role was that of a crop-sitter and you had no

previous knowledge of the electrical bypass and modifications done to the house. When you came to the address, the premises had already been set up.

[15]: It is accepted that the roles each played go beyond mere crop sitter and that in each of your cases, the offending should be categorised as mid-range.

Ms Nguyen also pleaded guilty to negligently dealing with PofC - aggregate sentence.

[13]: Ms Nguyen in similar position to her husband.

[27]: I sentence you upon the basis that you each played a similar role as crop sitters attending to the crop on someone else's behalf.

[28]: In terms of your actual activities at the factory, I find that your roles were nonetheless different. You, Mr Ton, were the older man and introduced Mr Nguyen to the enterprise. However, you in turn were subordinate to Mr Tuan but you had been involved in the enterprise for a longer period, being from March 2016 until 22 June 2016 and compared to 5 June 2016 and 22 June 2016 for Mr Nguyen.

[32]: Having said all that, I do not lose sight of the fact that you both fall to be sentenced as crop sitters and that you are both low down on the hierarchy of moral culpability. Further, while you, Mr Ton, were closer to the leadership or directional structure of this enterprise, you were clearly not part of it.

[33]: Both of you claim that although you were promised payment for the sitting, neither of you had received any reward.

[34]: Whether either of you in fact received payment does not make a material difference. You both acted for monetary gain, that much is clear. I sentence you both on the basis that there was an expectation that you would be receiving payments one way or another from Mr Tuan. The financial gain was, it would seem, always going to be relatively modest. You were to be paid for your labour, not a share in the profit as such.

[26]: Your role in this offending can fairly be described as that of a crop sitter which, in addition to minding the crops, included the care and maintenance of them. There is

no suggestion made by the prosecution that you were involved in any of the entrepreneurial aspects of the operation or in the design or installation of any of the equipment found there. However, I am satisfied that your role was vital for the cultivation, harvesting, and eventual sale of the crops and the anticipated profits that would result from such sales.

[10]: In Australia unlawfully since 14 March 2013.

Nguyen Current matter before the Court of Appeal.

[11]: While Luong was financing the operation, you were an important - or in my

view principal - a principal cultivator growing plants to yield significant amounts of cannabis for entrepreneurial purposes.

[12]: Whether Mr Tan was doing the same or at a higher level to you is difficult to discern but I will in this instance consider that you were an important principal cultivator, whether just under Mr Tan Nguyen or at his same level is unclear to me. I will give you the benefit of the doubt that you were less important as an organiser than he.

[16]: Recently the Court of Appeal in the case of Nguyen in 2016 has provided guidance to sentencing judges indicating that the penalties for principals cultivating not less than a commercial quantity of cannabis are currently inadequate and must be increased. The need for denunciation and deterrence requires that this crime, with a maximum term of 25 years, leave penalties more severe than has been the case in recent past times.

[17]: In my view, you fit squarely into the category of a principal cultivator well- embedded in entrepreneurial drug trade. Yours is a serious example of cultivation in not less than a commercial quantity. The volume is five times in weight what qualifies as a commercial quantity and 1.67 times the commercial quantity for the number of plants.

[20]: As I have pointed out in this case, another man Tan Nguyen was also involved in the property. It is not said that he is on any of the telephone intercepts that are put into evidence. As I say he was interviewed but has disappeared before arrest. I again indicate that in the end your role was that of an important cultivator.

[21]: Often the courts do deal with the young and vulnerable crop sitters who tend to crops so as to keep the principals at arms length. On the arrest of the crop sitters, it is clear they have a limited role and thus their culpability is seen as lower. You are not in that category.

[22]: You were paid a significant amount of money for your involvement. In respect of this property [Mount Waverly], your role was more involved than that of a sitter, though it is accepted that you were not involved in setting up the business or other aspects of it.

[23]: A disturbing aspect of your offending was that once you became aware that these properties had been discovered by police, you left the property in Footscray and ceased involvement at Mount Waverley. However, 12 months or so later you set up your own cultivation in Sunshine. Although I was informed that this was for similar financial motives, the re-establishment by you both of a cannabis crop is another aggravating feature of your offending.

[24]: You were not merely sitters or just attending to growth and cutting of plants in respect of this crop. I do however accept, as was submitted on your behalf,

that you did not as a consequence of your criminal activities fund a lavish lifestyle, rather the funds were provided to your family in Vietnam.

[25]: The offence of cultivation of an amount not less than a commercial quantity of cannabis is a serious offence, carrying a maximum penalty of 25 years. Whilst the role both of you played at the Mount Waverley premises could be described as a sitter with responsibility for some other peripheral tasks, your role was nonetheless necessary for the crop to flourish. The maximum penalty fixed by Parliament unambiguously demonstrates how seriously the community view this conduct.

[26]: The Court of Appeal has emphasised recently that general deterrence is an important sentencing consideration for this type of offence, and that the link between general deterrence and the increasing prevalence of this offence is readily apparent.

[27]: I am also conscious of the Court of Appeal's remarks in the recent decision of Nguyen regarding this offence. However, I do not consider that you come within the category of offender who is referred to in that decision, with you being lower down the rank in your role in the cultivation of the cannabis at Mount Waverley.

[28]: Specific deterrence is also relevant, given your continued involvement after you knew police had discovered the activities at Mount Waverley, and the different role that you took on in respect of the cultivation of cannabis at Sunshine some 12 months later.

Both accused were cultivating in two properties - one in Mount Waverly and one in Sunshine.

Both accused also pleaded guilty to cultivate simpliciter (cannabis) and possess cannabis.

6 months of simpliciter charge cumulative with base charge.

HH stated that the Accused were "more involved than that of a sitter" but being lower than the role of a principal as described by the Court of Appeal in Nguyen.

[25]: Neither accused had a prior criminal history, but because of the particular facts in this case, specific deterrence held to be relevant.

[9]: You were in this crop sitting business to obtain money to pay for your children. I do not know if you are sending any back to Vietnam or not. The prosecution submission is that you fall within the cluster one, which is the lowest cluster of cannabis cropper sitters as set out in the Nguyen, and I accept that.

Aggregate Sentence, which included convictions for one charge of use false document and one charge of theft.

[7]: Clearly the operation was being done at the behest of others and I have other information before me today in regard to that area and you are to be sentenced as a

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