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[2019] VSCA 134
General information, not legal advice.
Court of Appeal (Vic)
2019-06-17
Mr J, Priest JA, Beach JA
Original judgment source is linked above.
[2018] VCC 864 (Judge Tinney)
CRIMINAL LAW - Sentence - Applications for leave to appeal - Cultivation of commercial quantity of narcotic plant - Applicants sentenced to 3 years and 8 months on cultivation charges - Whether applicants were mere crop sitters - Judge refusing to accept Crown concession that applicants were crop sitters - Sentencing judge giving notice to accused of non-acceptance of Crown concession - Requirements of procedural fairness complied with - No unfairness to accused - No error in judge's fact finding - Not reasonably arguable that sentences manifestly excessive - No prospect that Court of Appeal would impose lesser sentences - Applications for leave to appeal refused.
1 On 6 June 2018, the applicants (Nguyen and Ho) pleaded guilty in the County Court to one charge of cultivating a narcotic plant (cannabis) in a quantity not less than the commercial quantity applicable to that narcotic plant.[1] On the same day, the applicant Nguyen pleaded guilty to an additional charge (charge 2) of resisting an emergency worker (a police officer) on duty. The maximum term of imprisonment for cultivating a narcotic plant in a quantity not less than the commercial quantity is 25 years. The maximum term of imprisonment for resisting an emergency worker on duty is 5 years.
2 After plea hearings conducted on behalf of both applicants, on 8 June 2018 the applicants were each sentenced to a term of imprisonment of 3 years and 8 months on the cultivation charges. Nguyen was sentenced to an additional one month's imprisonment to be served cumulatively on the cultivation sentence, giving him a total effective sentence of 3 years and 9 months' imprisonment. The judge then fixed a non-parole period of 2 years and 4 months for Nguyen, and 2 years and 3 months for Ho. Pre-sentence detention of 201 days was declared in respect of each applicant, and the judge made statements under s 6AAA of the Sentencing Act 1991.[2] The judge also made disposal and forensic sample orders.
3 Nguyen and Ho now each seek leave to appeal against the sentences imposed upon them. Their proposed grounds of appeal are as follows:
4 On the afternoon of Sunday 19 November 2017, police conducted surveillance of premises situated at 39 Centenary Street, Seaford. At 8:30 pm, the applicants were observed by police parking a white coloured Toyota Aurion sedan (registration XXV 537) in Henry Crescent, Seaford. Roads Corporation (VicRoads) checks conducted on the vehicle revealed that Ho was the registered owner of the vehicle ('Ho's vehicle').
5 The applicants were observed by police to get out of Ho's vehicle and walk from Henry Crescent into the premises at 39 Centenary Street in Seaford. Police were in possession of a search warrant for the premises, pursuant to s 81 of the Drugs, Poisons and Controlled Substances Act 1981. Acting Detective Sergeant Alistair Boyd knocked on the front door of the premises. There was no response. Police then used force to gain entry to the premises.
6 While in the process of gaining access to the premises, Senior Constable Shane Smith was confronted at a side gate by both Ho and Nguyen. It was at this point Acting Detective Sergeant Boyd recognised Ho and Nguyen as a result of enquiries he had made and ongoing investigations into the cultivation of cannabis.
7 Senior Constable Smith identified himself as a member of the Victorian Police whereupon Ho and Nguyen both ran towards the rear of the property, jumped the side fence and entered adjacent premises at 41 Centenary Street.
8 While running from police, Nguyen dropped a mobile phone from his pocket. He was then tackled to the ground by Senior Constable Smith. A struggle commenced, before Nguyen got up and pushed Senior Constable Smith to his chest and again attempted to run. Nguyen was then overpowered by Senior Constable Smith and Senior Constable Stephen Miotla. Senior Constable Smith sustained grazes as a result of this altercation.
9 Acting Detective Sergeant Boyd observed Ho hiding in a dark corner. Ho reached for an unknown object in his pocket resulting in Acting Detective Sergeant Boyd attempting to restrain him. Ho attempted to break free from Acting Detective Sergeant Boyd before being secured with handcuffs.
10 Each of Nguyen and Ho smelt strongly of cannabis and were searched by police. Located in Ho's possession was a set of keys, including a key to Ho's vehicle and a key for the locking mechanism of the front door of 39 Centenary Street.
11 After securing the applicants, police located a sophisticated hydroponic cannabis crop growing within a number of the rooms of 39 Centenary Street. Initial inspection of the premises revealed there to be in excess of 120 cannabis plants. For safety purposes, the premises were secured and a crime scene guard utilised overnight pending the arrival of an electrical contractor to declare the premises safe.
12 Nguyen's mobile phone, which he had dropped earlier, was seized by police. The phone was found to contain numerous notification alerts linked to CCTV cameras that were situated in 39 Centenary Street.
13 The applicants were taken to the Frankston police station for the purpose of being interviewed. Unsuccessful attempts were made by police to obtain a Vietnamese language interpreter. The applicants were each charged without interview.
14 On the morning of Monday 20 November 2017, an electrical technician attended at the premises. An electrical bypass was located and removed from the roof cavity. The house was declared safe and police commenced processing the scene. Police found 128 cannabis plants that were being grown hydroponically inside the premises. The total weight of the plants was 51.73 kg. A commercial quantity of cannabis is 100 plants or 25 kg.
15 Various other items were located within the premises including a number of water bottles, two bottles of Clonex rooting hormone and two white plastic gloves. Police also seized documents bearing Nguyen's name from within Ho's vehicle, together with registration plates numbered UPG 771.
16 Enquiries with VicRoads revealed that Bang Nguyen was the registered owner of vehicle registration UPG 771, recorded as a 2000 Holden Commodore maroon sedan to an address of 22 Woodward Street, Springvale. The corresponding Vehicle Identification Number registered with VicRoads to this vehicle was 6H8VTK69HYL537684. The vehicle displaying this number was located in the front yard of 39 Centenary Street. This vehicle was, however, displaying false plates, numbered YNT 093.
17 Additional enquiries of VicRoads revealed that registration plates YNT 093 were 'returned plates' which are no longer in service. The plates located on the vehicle in the front yard of 39 Centenary Street were of poor quality, and appeared to be home made.
18 Enquiries made with the Australian Border Force revealed that Nguyen and Ho were Vietnamese nationals. Additionally, both were unlawfully in Australia, and liable to be detained as unlawful non-citizens under s 189 of the Migration Act 1958.
19 Further enquiries in relation to 39 Centenary Street revealed that, on 28 June 2017, the applicants entered into a residential tenancy agreement for the lease of the premises. The tenancy agreement was for the term of twelve months, commencing on 4 July 2017.
20 At the commencement of the plea on 6 June 2018, the prosecutor tendered (and then read from) a written opening. The contents of the prosecution opening were not disputed by the applicants. In substance, the opening described the circumstances of the applicants' offending as we have set out those circumstances above.
21 After referring to background matters and matters personal to each applicant, counsel for each applicant relied upon the following matters in mitigation:
22 While counsel for each applicant accepted that the proper disposition in each case was a term of imprisonment, and also that each applicant would likely be deported at the completion of his period of incarceration, neither applicant relied upon the fact of his likely deportation as a matter in mitigation.
23 In relation to Nguyen's background, the judge was told:
25 On the plea, Ho's counsel tendered a report from a consultant psychologist, Ms Cidoni. Ms Cidoni's opinion was that Ho has a low average IQ, and also suffers from reactive depression and anxiety. No reliance was, however, placed by Ho on the principles referred to in R v Verdins.[3]
26 In the course of their pleas on behalf of their clients, counsel for each applicant submitted that their clients fell to be sentenced on the basis that they cultivated cannabis on a single date only.
27 During the course of the plea, counsel for each applicant sought to describe to the judge, from the Bar table, the circumstances in which the offending commenced. The version put to the judge may be summarised as follows:
(1) Prior to June 2017, the applicants were living at 22 Woodward Street Springvale (the address at which the vehicle found by police in the front yard of 39 Centenary Street was registered).
(2) In late June/early July 2017, the applicants and a third person, as tenants, entered into a lease agreement to occupy 39 Centenary Street. The lease at 22 Woodward Street was terminated, and the applicants moved into 39 Centenary Street.
(3) About six weeks before they were arrested, each applicant was approached by a man named Duong (or perhaps both applicants were approached by Duong) in a café. Duong proposed that he would take over the rental payments of 39 Centenary Street, and pay the applicants $200 per day to grow the plants that were subsequently installed into the premises. The applicants, being in financial difficulties, agreed with Duong's proposal, and the house was then converted to a 'crop house'.
(4) Upon the conversion of 39 Centenary Street into a crop house, the applicants returned to residing at their previous address of 22 Woodward Street.
28 At one point in his plea, counsel for Ho told the judge that his client was to be paid $200 per day to grow the plants. At another point, in response to a question from the judge, counsel said that his client was to be paid $150 per day, 'to water the plants as directed'.
29 In the course of Nguyen's counsel's plea submissions, after Nguyen's counsel had outlined his client's version consistently with the summary above, counsel said:
Now I understand [why] your Honour would have a level of cynicism about this but I - but I'm not saying your Honour doesn't deserve to have a level of scepticism - - -
30 Having stated their instructions from the Bar table, the applicants' counsel then submitted that the applicants were mere 'crop sitters'. The judge made it plain during the course of both pleas, however, that he was not prepared to accept that either applicant was 'a mere or lowly crop sitter'. The judge enquired of both counsel whether they were prepared to place any evidence before him as to their clients' roles. Each counsel, after obtaining instructions, declined this opportunity.
31 After each of the applicants' counsel had finished their pleas in mitigation, the judge enquired of the prosecutor whether he had any further submissions. The prosecutor said that he did not have any further submissions. This led to the following exchange:
HIS HONOUR: All right. It's submitted on behalf of each of the accused that they're crop sitters. Is the Crown wishing to make any submission in that respect at all, or is it a matter for me to make some determination or not? What, if anything, do you - - -
PROSECUTOR: No, the Crown doesn't make any submissions in relation to the role of each of the accused other than the evidence that's been provided before your Honour. As to whether your Honour accepts their counsel's representations is a matter entirely for your Honour.
32 Shortly thereafter, the plea hearing concluded. His Honour said that he would pass sentence on the following Friday (8 June 2018).
33 On 8 June 2018, the matter came on for sentencing. At the commencement of this hearing, however, the judge noted that his associate had received an email on 7 June from the prosecutor. The judge read the email into the transcript. The email provided:
There appears to be confusion in relation to Mr Ho's role in the offending. I made the concession yesterday that both Mr Ho and Mr Nguyen were considered crop sitters. Please advise his Honour accordingly.
[F]irstly it was not an email that I even pretended to understand. I called upon the prosecutor ... to make submissions the other day. There's certainly no confusion in my mind as to the submissions that he made on Wednesday of this week. I asked him what the stance was in terms of the prosecution attitude to the claim that these men were crop sitters and he told me that that factual assertion - that that was not conceded and other than that there were no further submissions made.
He said ultimately it was a matter for me to determine the issue of role, which is obviously the reality of the situation whatever submissions were made. But they were the submissions that were made, so I was a bit confused by this email but didn't think it appropriate to have the plea conducted by email, even with parties being copied in. So it was plain enough that I would need to have the matter listed so that the submissions could be made in open court so I could at least understand what the Crown was saying and then extend to the defence the opportunity at least to hear those submissions and to respond to them if needed.
35 There was then discussion between the judge and those acting for the Crown and the accused. Ms Rutherford, appearing for the Crown, said that she apologised for what had occurred on 6 June, 'but it was the Crown's position that the role of both Mr Ho and Mr Nguyen can be categorised as that [of] crop sitter'. Ms Rutherford told the judge that she 'sought to vary the submission that had previously been made that that concession [that the applicants were crop sitters] can't be made'.
36 In the course of discussion, the judge made it plain that, in his view, it was ultimately for him to determine whether or not the applicants were crop sitters. No party demurred from that proposition. Moreover, neither applicant sought to advance any submission of substance on the issue. Ultimately, the applicants were content for the matter to proceed (that is, for sentence to be passed) without any further evidence or submissions being made. In taking that approach, those acting for the applicants noted the concession now made by the Crown, but accepted that the 'finding of fact' as to the role of the applicants was a matter for the judge.
37 The judge commenced his reasons for sentence[4] noting that the applicants took no issue with the prosecution opening - it being an agreed opening.[5] The judge observed that the applicants were 'both caught red-handed' and that Nguyen 'did [his] best to evade capture' - that being 'the context of [Nguyen's] resisting a policeman on duty'.[6]
38 The judge described the premises as containing 'a sophisticated hydroponic cannabis set-up' - commercial quantity having been reached both by plant number and by weight.[7] The judge went on:
This was obviously a professional venture. These premises were dedicated to the growing of cannabis and you were both involved for financial gain.
That is all conceded.[8]
39 The judge then referred to additional circumstances of the offending, matters in mitigation, the course of the plea and the applicants' backgrounds.[9]
40 The judge accepted that each applicant had pleaded guilty at the earliest stage, and had thus facilitated the course of justice and taken responsibility for their crimes, again, at the earliest stage.[10] The judge accepted that each applicant had 'some remorse', and he said that he took that into account in mitigation in each case.[11]
41 The judge then dealt with issues of custodial burden,[12] rehabilitation[13] and deportation.[14] In relation to custodial burden, the judge accepted that the applicants would be, to an extent, isolated in custody because they would have no visitors. While the judge accepted that there was a language barrier, he put that issue to one side because, as he put it, 'there are a number of others who speak the same language, including the two of you in the same unit'. With respect to rehabilitation, the judge said that he believed that each applicant had 'very good, if not excellent prospects, of rehabilitation'. In relation to deportation, the judge noted that deportation was not being relied upon in any mitigatory fashion. The judge said that deportation justified neither a longer nor shorter non-parole period than would otherwise be fixed.
42 The judge then turned back to the circumstances of the offending. Specifically, the judge said:
You were both committing this serious crime for reward. Even on your own versions, you admit as much. As to your version, it strikes me as being most unusual. A 'crop sitter' who actually provides up the premises used for the cultivation. That immediately places you in a different setting from someone installed into premises, in my view.[15]
43 The judge then dealt with the submissions made to him by the applicants' counsel about the roles of their clients, noting that the common theme in the submissions was that the applicants did not share in the profits or have any expectation in a share of the profits - they were 'mere hired underlings' being 'crop sitters'.[16] The judge noted that he had 'flagged very directly to both counsel [his] difficulties in accepting [their] instructions' and that, nevertheless, the applicants chose not to give evidence before him.[17] The judge then said:
Now of course there was absolutely no obligation to give evidence on the plea, none at all. Nor though was there any obligation on me, as a Judge, to accept any of these submissions as to role, in the absence of evidence on the topic, nor was there any obligation for me to accept the submission made by the prosecution that has been ventilated this morning. These were mitigatory submissions made by your counsel seeking to have you dealt with as 'crop sitters'. I was required to be satisfied of these matters on the balance of probabilities. I had raised my concerns. No evidence has been placed before me. I do not accept your instructions. I am not satisfied on the balance of probabilities that you were merely crop sitters. There is no evidence at all of those contentions and much by way of inference which runs counter to that suggestion.[18]
44 The judge then analysed both the admitted facts and the version contended for by the applicants on the plea, saying:
You were each experiencing financial hardship, it is suggested, owing to the maritime disaster in April 2016. Yet, you two, and one other, entered into the tenancy agreement in late June 2017, the following year, taking possession in early July 2017. A fully functioning crop house was located at the premises by November 2017, with a vast array of equipment. You were the tenants. The house was at that point not occupied. You, the tenants were living elsewhere. How exactly Mr Duong would have seen fit to approach you at a café and make the offer you say was made is a mystery. So too is there a mystery as to why he would need two crop sitters in such a setting as that. Why you would accept such an offer is equally mysterious in my judgment. You had found the house. You had entered the tenancy. You had the keys, but were both living elsewhere. You were both there on 19 November. CCTV cameras that had been installed at those premises, sent notification alerts to your phone, Mr Nguyen. I reject your accounts. I am not satisfied of those accounts on the balance of probabilities. Nor is there any material before me suggesting that you sought to remove yourself from this enterprise Mr Ho.[19]
45 The judge then observed that it was not always possible to have a clear view of the precise role of a player in a cultivation venture. He also observed that it was important that a label or tag being applied to an 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.[20] The judge then said that he was not sure about the existence of anyone further up the hierarchy, but he was 'very comfortable in rejecting [the applicants'] account of only being crop sitters'.[21] The judge went on:
Indeed, I am satisfied beyond reasonable doubt that you are not to be classed as crop sitters. I am satisfied beyond reasonable doubt for the reasons that I have provided, that you had a larger role in this crop than you are admitting. At least some level of share in the yield. I am satisfied of that beyond reasonable doubt.
So I reject your versions, but I note before leaving the topic that even your own version is of the expectation of a not insignificant financial reward for taking on the role of cultivators, in a property you had provided to someone further up the hierarchy. To even describe this as a 'crop sitting' arrangement would be a mis-description in my view. It demonstrates the danger of attempting to provide tags or labels rather than looking at actual conduct. In any event, I reject your accounts.
No doubt you did what you did for financial gain or hope of such gain. Well that is virtually the universal motivation for people engaged in this sort of venture at whatever level. Whether principals or hired menial crop sitters or somewhere in between. It is the lure of financial gain which is always operative. The fact is not every person wanting or needing money embarks upon serious criminal conduct. You both did. You chose to. You should not have.
You were doing what virtually every person engaged in this sort of activity does. You were both taking a calculated risk. You made a choice to commit this serious crime. Of course you must have weighed up the pros and the cons. You must have weighed up the risks. You hoped not to be caught. I do not accept for one moment the suggestion that you Mr Ho, did not think your role would place you in serious trouble. Of course you knew.
I have to take into account the nature and the gravity of the offence. As I have said, I do not accept that you are mere 'crop sitters'. That was not the nature of this venture.[22]
46 Next, the judge dealt with the submission that the applicants fell to be sentenced on the basis that they cultivated cannabis on a single date only. The judge said that there was an air of unreality in that submission because the offending was 'very obviously an elaborate, organised criminal activity' and that there was 'nothing spontaneous about this offending'.[23]
47 The judge then observed that there appeared to be 'a never ending stream of people prepared to involve themselves in cultivation of narcotic plants for reward', and that he was required to manifest the Court's denunciation of the applicants' criminal conduct.[24]
48 The judge concluded his reasons for sentence by saying:
You were operating at a higher level than that, at least in my judgment. I am satisfied of that beyond reasonable doubt. You had provided the premises and you must have had some stake in this crop.[30]
49 Under proposed ground 1, both applicants assert that the judge was wrong to find that each was 'more than a crop sitter'. In their submissions, the applicants cavilled with the failure by the judge to be satisfied on the balance of probabilities that the applicants were 'merely crop sitters';[31] and also with the judge's conclusion that he was satisfied beyond reasonable doubt that each applicant had a larger role in the cultivation than was admitted - involving 'some level of share in the yield'[32] and/or 'some stake in this crop'.[33]
50 The applicants contended that the matters relied upon by the judge that led him to his conclusions on this issue (including the existence of the tenancy agreement commencing on 4 July 2017, the fact that the house was a fully functioning crop house by 19 November 2017, and the fact that CCTV cameras had been installed with alert notifications being sent to Nguyen's mobile phone) were all 'answered on the plea hearing'. The applicants contended that, on the plea, the following matters were established which disclosed that they were no more than crop sitters:
51 In relation to the prosecution's acceptance of the applicants' roles as crop sitters, the applicants tendered in this Court email communications between the OPP and the applicants' lawyers, both before each matter resolved into a plea and after the first day of the plea hearing. The applicants contended that it is plain from the emails tendered that, in negotiations (and at all times thereafter), the actual position of the Crown was that it conceded that the applicants were crop sitters. The applicants contended that, while the judge was not bound by any agreement of the facts between the parties, caution needed to be exercised before there was any departure from a factual basis agreed between the parties. Additionally, they contended that it was unfair to the applicants for there to have been a departure from the agreed factual basis.
52 Under proposed ground 2, both applicants contended that the sentences imposed upon them for the commercial cultivation charges were manifestly excessive. The complaints of manifest excess were made on the basis that the applicants should have been sentenced as mere crop sitters. In further support of their complaints of manifest excess, the applicants relied upon all of the matters in mitigation that they relied upon before the judge.
53 Under Nguyen's proposed ground 3, Nguyen submitted that the factual circumstances of the offence of resisting the police officer, 'simply did not warrant the imposition of a term of imprisonment, or alternatively a term of imprisonment ordered to be served cumulatively'. In that regard, Nguyen noted the presumption in s 16(1) of the Sentencing Act in favour of concurrency. Nguyen contended that there was no reason why the statutory presumption in favour of concurrency should have been disturbed in this case.
54 In response to the applicants' submissions in relation to proposed ground 1, the respondent submitted that its concession made to the judge was 'incorrect'. It submitted that the findings made by the judge were open and that the prosecution's 'erroneous submission', having been rejected by the judge and having no effect on sentencing, should not fetter the respondent's ability to make submissions, in this Court, in defence of the sentences imposed by the judge.
55 Next, the respondent noted that there could be no complaint about the judge failing to be satisfied on the balance of probabilities that the applicants were not crop sitters. The applicants called no evidence on that issue, and the judge was not bound to be satisfied on the balance of probabilities of a matter in mitigation relied upon by the applicants.
56 In relation to the judge's conclusion that he was satisfied beyond reasonable doubt that the applicants had a larger role than they admitted and had some stake or share in the crop, the respondent submitted that it was open to the judge to come to these conclusions, on the whole of the evidence and for the reasons he gave. As to the matters relied upon by the applicants which were said to disclose that they were no more than crop sitters,[34] the respondent contended that a number of them had little or no relevance in relation to the question of role, a number were 'mere assertions without evidence', some were not inconsistent with the applicants having a role greater than that of mere crop sitter and others were merely references to an absence of evidence - not positive evidence in relation to the applicants' roles.
57 In response to the applicants' submissions under proposed ground 2, the respondent noted that this ground was reliant upon the applicants succeeding on proposed ground 1. There could be no complaint of manifest excess if the applicants' complaints under proposed ground 1 fail.
58 In response to Nguyen's submissions under his proposed ground 3, the respondent submitted that the sentence and order for cumulation were appropriate and that neither evidenced any error. The respondent noted Nguyen's concession in Nguyen's written case that Nguyen's offending on charge 2 was properly described by the judge as 'no trifling example of that offence'.[35]
59 While cases involving the commercial cultivation of narcotic plants are often categorised by reference to whether the accused is, on the one hand, a crop sitter or played some ancillary role or, on the other hand, was an organiser or played a principal or proprietary role,[36] the issue of the role of an offender involved in such offending is not a binary one. Moreover, while the term 'crop sitter' may be a useful shorthand description in a case where it is clear that the offender's role is a low-level one, it is not a term of art of fixed and precise meaning. A sentencing judge is required to sentence an offender found guilty of commercial cultivation of a narcotic plant by reference to all of the facts of the case (including all of those able to be gleaned about the offender's role and involvement) and not by reference to whether the offender can be given some particular appellation.
60 Insofar as the applicants complain about the judge's failure to be satisfied on the balance of probabilities that they were mere crop sitters, we reject that complaint. The applicants did not give evidence on the plea. The evidence that was tendered on the plea did not require the judge to make a finding on the balance of probabilities of some mitigatory aspect of the applicants' roles in the cultivation of the cannabis crop. Nor was the judge bound to accept anything that counsel for the applicants said from the Bar table about their clients' respective roles. Moreover, the assertions made by counsel on the plea about their clients' respective roles did not have any great plausibility. As Nguyen's counsel frankly conceded to the judge, his Honour was entitled to have a 'level of scepticism' about the applicants' version of how they came to be involved in the cultivation of the cannabis crop.
61 Whatever the Crown's position was on the first day of the plea hearing, it is plain that on the second day the Crown conceded that both applicants were crop sitters. Although the Crown conceded on the plea that both applicants were crop sitters, the judge was not bound to accept that agreed factual statement, so long as the judge - as he did in the present case - afforded the parties procedural fairness.[37]
62 Before the judge, and in this Court, the parties accepted that the judge was not bound by any agreement they may have made as to the facts upon which the applicants fell to be sentenced. The applicants' position was, however, that caution needed to be exercised before there was any departure from the factual basis agreed between the parties. So much may be accepted. The short point in the present case is that there is no basis for contending that caution was not exercised by the judge. The judge made it plain in argument that he was not accepting relevant parts of the applicants' submissions. He invited their counsel to call evidence. No evidence was called.
63 To the extent that the applicants submitted that what occurred on the plea had worked an unfairness against the applicants, that submission must be rejected. The judge made his concerns and views plain on the hearing of the plea. Moreover, he offered the applicants opportunities to consider their positions. No applications for an adjournment were made, and neither applicant sought to withdraw his plea (either on the basis that it had been made on a basis now not accepted, or more generally). Both applicants were content, at the conclusion of the second day of the plea, to permit the judge to deliver sentence.
64 The judge's reasons for sentence disclose that he gave detailed consideration to all of the relevant issues and all of the facts surrounding the circumstances of the applicants' offending. The judge explained in some detail why he concluded beyond reasonable doubt that the applicants were not mere crop sitters and that they had 'some level of share in the yield' and 'some stake in the crop'. We are not persuaded that it was not open to the judge, for the reasons he gave,[38] to arrive at these conclusions.
65 In any event, even if we had concluded that there was some error in the judge's conclusions about the applicants' roles, the sentences imposed were, in all the circumstances, unexceptionable. Cultivating a narcotic plant in a quantity not less than the commercial quantity carries a maximum term of imprisonment of 25 years. The offending in the present case was, as described by the judge, sophisticated. In Nguyen v The Queen,[39] this Court recently resentenced two offenders who had pleaded guilty to cultivating a narcotic plant in a quantity not less than the commercial quantity to terms of imprisonment of 3 years and 9 months and 3 years and 6 months. The sentences imposed in that case and the cases referred to in that judgment[40] show that the sentences imposed by the judge in the present case are entirely unexceptional - even for 'crop sitters'.
66 Similarly, we are unpersuaded that the judge erred in the sentence and order for cumulation imposed on Nguyen in relation to the resisting a police officer charge (charge 2). While it might be said to have been unusual for the judge to cumulate the whole of the sentence he imposed on charge 2 on the sentence he imposed on charge 1, the actual sentence (one month's imprisonment) was a modest one - adding only modestly to the total effective sentence. In truth, there could have been little complaint if the judge had imposed a greater term of imprisonment on charge 2 and then only cumulated one month.
67 Section 280(1) of the Criminal Procedure Act 2009 permits this Court to refuse an application for leave to appeal against sentence if there is no reasonable prospect that this Court would impose a less severe sentence than the sentence first imposed, or there is no reasonable prospect that this Court would reduce the total effective sentence despite there being an error in the sentence first imposed. Section 280(2) provides that an application for leave to appeal may be refused under sub-s (1) even if this Court considers there may be a reasonably arguable ground of appeal.
68 For the reasons already given, we do not consider that there is a reasonably arguable ground of appeal in this case. Additionally, there is no reasonable prospect that the Court of Appeal would impose less severe sentences than the sentences imposed by the judge. We will refuse leave to appeal because we are unpersuaded that either applicant has a reasonably arguable ground of appeal, and also because there is no reasonable prospect that this Court would impose less severe sentences than those imposed by the judge.[41]
69 The applications for leave to appeal are refused.
[1] While the statement of offence in the indictment alleged that the cultivation was contrary to s 72A of the Crimes Act 1958, the offence of cultivating a narcotic plant in a commercial quantity is to be found in s 72A of the Drugs, Poisons and Controlled Substances Act 1981. In the proceedings in this Court, neither applicant took any issue with the incorrect reference in the indictment to s 72A of the Crimes Act (a non-existent provision).
[2] Pursuant to s 6AAA of the Sentencing Act, the judge stated that but for Nguyen's pleas of guilty he would have been sentenced to a term of imprisonment of 5 years and 1 month with a non-parole period of 3 years and 6 months, and but for Ho's plea of guilty, Ho would have been sentenced to a term of imprisonment of 5 years, with a non-parole period of 3 years and 5 months.
[4] DPP v Ho & Nguyen [2018] VCC 864 ('Reasons').
[35] Applicants' written case [38]; Reasons [53].
[36] See Nguyen v The Queen [2016] VSCA 198; (2016) 311 FLR 289, 316 [84].
[37] R v Duong [1998] 4 VR 68, 77-8; Chow v DPP (1992) 28 NSWLR 593; R v Mielicki (1994) 73 A Crim R 72; Scott v The Queen [2010] VSCA 290 [48]; DPP v Perry (2016) 50 VR 686, 711-712 [92]-[93].
[38] See in particular Reasons [42]-[47].
[41] We noted earlier at n 1 that the indictment wrongly referred to s 72A of the Crimes Act 1958, when it should have referred to s 72A of the Drugs, Poisons and Controlled Substances Act 1981. Section 280(3)(b) of the Criminal Procedure Act 2009 permits this Court, on refusing an application for leave to appeal because there is no reasonable prospect that the Court would reduce the total effective sentence, to make any order that the Court considers ought to be made. In the circumstances, we propose to order the amendment of the indictment by replacing the words 'Crimes Act 1958' in the statement of offence for charge 1 with the words 'Drugs, Poisons and Controlled Substances Act 1981'.
Nguyen
The Queen [2019] VSCA 134
(2007) 16 VR 269
(2016) 311 FLR 289
(1992) 28 NSWLR 593
(2016) 50 VR 686