Nguyen v The Queen [2020] VSCA 283

CRIMINAL LAW - Leave to appeal - Sentence - Cultivation of commercial quantity of narcotic plant - Theft of electricity - Total effective sentence of 5 years and 6 months' imprisonment with non-parole period of 3 years - Applicant also ordered to pay total sum of compensation of $31,281.39 to energy companies - Whether applicant's sentences manifestly excessive - Co-offender sentenced to total effective term of 3 years and 9 months' imprisonment with non-parole period of 1 year and 8 months - Whether unjustifiable disparity in sentence between applicant and co-offender - Leave granted on manifest excess ground - Leave refused on parity ground.

1 On 9 July 2019, the applicant, Minh Tri Nguyen, pleaded guilty in the County Court at Ballarat to one charge of cultivating a commercial quantity of a narcotic plant (cannabis L), and two charges of theft. A co-offender, Van Tung Le, had earlier pleaded guilty to one charge of cultivating a commercial quantity of a narcotic plant (cannabis L), and one charge of theft.

2 On 21 November 2019, the applicant was sentenced as follows:

Cultivating a commercial quantity of a narcotic plant (cannabis L) [s 72A - Drugs, Poisons and Controlled Substances Act 1981]

Theft [s 74 - Crimes Act 1958]

Theft [s 74 - Crimes Act 1958]

6 years and 9 months' imprisonment with a non-parole period of 4 years and 6 months

Applicant ordered to pay compensation to the sum of $25,509.21 to Energy Australia and $1,772.18 to Origin Australia. The applicant's Byrne Street property is to be confiscated in accordance with the Confiscation Act 1997.

Cultivating a commercial quantity of a narcotic plant (cannabis L) [s 72A - Drugs, Poisons and Controlled Substances Act 1981)

Theft [s 74 - Crimes Act 1958]

4 By notice dated 4 March 2020, the applicant seeks leave to appeal against that sentence on three grounds. They are as follows:

Ground 1: The individual sentences, total effective sentence and non‑parole period are manifestly excessive having regard to the principle of parity and the applicable factors in mitigation, including the applicant's guilty pleas, lack of prior convictions, probable deportation, and isolation in gaol, as well as the confiscation of his lawfully-acquired assets.

Ground 2: The sentences imposed upon the applicant and his co-accused give rise to a justifiable sense of grievance on the part of the applicant.

Ground 3: The learned sentencing judge erred in finding that the applicable mitigating factors were of particular relevance to the non-parole period.

5 At the commencement of the oral hearing for the application for leave to appeal, counsel for the applicant indicated that he would not press ground 3. As such, it was considered abandoned.

6 At the conclusion of oral argument, I granted leave in respect of ground 1, and refused leave in respect of ground 2. I indicated to counsel that I would provide short reasons in the coming days. These are those reasons.

Circumstances surrounding the commission of the offences

7 At the time of the offending, the applicant was aged 41. He lived in Springvale, in Melbourne's south-east. Mr Le was aged 55 and lived in the neighbouring suburb of Noble Park.

8 The offending took place between July and November 2018. The offending took place across two properties in Stawell, a town in regional Victoria. The first property was located in Byrne Street. The applicant had been the owner of that property since November 2015. The second property was located in Stone Street and had been purchased in the name of the applicant's wife.

9 Detective Senior Constable Malcolm Wineberg had previously driven past the Byrne Street property on a number of occasions. He observed that the windows had been boarded up.

10 On 9 November 2018, Wineberg drove past that property and observed Le mowing the lawn, and the applicant at the front door. The applicant's car was parked in the driveway. Wineberg conducted a check on the license plate and discovered that the applicant had an outstanding arrest warrant for a separate matter. Later that day, the applicant's car was intercepted by police. Le also had an outstanding warrant. Both men were arrested. While police searched the vehicle, they discovered documents connecting the applicant to the Stone Street property.

11 Meanwhile, Wineberg attended the Byrne Street property and noticed a strong smell of cannabis. He could see what he thought to be ceiling fans. At about 8:00 pm, police executed a search warrant. They located a sophisticated hydroponic system that was being used to cultivate cannabis L plants. Police seized 405 plants, weighing a total of 246 kilograms (part of charge 1 - cultivating a commercial quantity of a narcotic plant).

12 Police contacted the energy company, Powercor Australia. A contractor sent out to the home located an unmetered electrical connection within a cavity at the front of the house (charge 2 - theft).

13 On 14 November 2018, police executed a search warrant at the Stone Street property. They seized a total of 81 plants, weighing a total of 40 kilograms (part of charge 1 - cultivating a commercial quantity of a narcotic plant). Once again, Powercor Australia were contacted, and a contractor was sent out to the site. They located an unmetered electrical connection at the front of the house (charge 3 - theft).

14 The combined weight of the two crops was 286 kilograms. That amount exceeded the threshold for a large commercial quantity of cannabis. However, it was accepted by the prosecution that the applicant and Le intended only to cultivate a commercial quantity of cannabis.

15 In his record of interview, the applicant agreed that he was the owner of the Byrne Street property. He said, however, that he had rented it out to Le and was not aware about the crop inside. He declined to answer questions regarding the Stone Street property.

16 After setting out the background facts, the judge made the following observations regarding Le and the applicant's respective roles in the offending:

Van Tun[g] Le, I fundamentally accept the role attributed to you by [your lawyer], and in part, stated in your police interview. You knew Minh Nguyen. Primarily, you tended the two crops by, for example, watering and some cutting or pruning.

You went to Stawell every three days to do so. I accept that you agreed to do this because of financial problems arising out of a failed business in Vietnam and the decline in your work as a handyman here.

...

Minh Nguyen, I find that you have played a more serious role. I do not accept the lesser, somewhat exculpatory account put in your behalf.

...

You purchased the Byrne Street property in 2015, albeit not for the purpose of this offending and, when more consistently employed.

In June 2018, a second house was purchased in your wife's name. Settlement was on 12 October. You played a prominent role in negotiation of purchase, payment of deposit and settlement. You also discussed with a neighbour, the building of a higher fence. The house was not tenanted. The crop was established by the time of a police search on 14 November. There is no other sensible explanation, but that the second house was purchased to enable the second crop.

Rejection of your explanation does not lead, without the proper evidentiary basis, to a finding that you were, for example, the princip[al] entrepreneur. Further, your exposure, given the connection to both properties tends to speak against that.

I am left with the finding that you were more seriously and significantly involved in these crops than you say. Your motivation was financial gain at the very least, to the extent of paying the Byrne Street mortgage in a time of financial difficulty. The purchase of the second house was aimed at expanding the operation.[1]

17 The judge then turned to each offender's personal circumstances. With regard to Le, he had come to Australia on a tourist visa, which he had overstayed. His aim had been to obtain work, and send money back to Vietnam, where his wife was caring for his elderly parents. His Honour observed that it was within this context that the offending took place.

18 The judge noted that Le would likely be deported following the completion of his non-parole period. It was noted, however, at least impliedly, that that factor would not be as burdensome as for other persons awaiting deportation. Indeed, Le felt isolated in prison, and wished to return to his family in Vietnam.

19 As regards the applicant, the judge observed that he had been a permanent resident of Australia since 2012. He was married and had three children aged 18, 10, and 4. His Honour found that it was likely that the applicant would also be deported. He said:

At least, my sentence will mean automatic cancellation of your status in Australia. You will then face the task of review or appeal of that. Unlike Van Tun[g] Le, you have established yourself and your family here. I accept that your imprisonment will be harder, given your concern about deportation and about them.

As I have said, I find it likely that you will be deported and face the hardship of losing the expectation of life in Australia for you, together with your family. I also note that your youngest child was born here and is an Australian citizen.[2]

20 The judge then turned to the objective gravity of the offending, noting that it had extended over a period of four months. He remarked upon the scourge such drugs had on the community, and the moral culpability associated with those who sought to profit from it. He found that the sentencing considerations of general deterrence, just punishment, and denunciation were highly relevant in cases of this kind.

21 His Honour then dealt with the various matters in mitigation. He observed that both men had pleaded guilty at a relatively early stage, had no prior convictions, and had 'good prospects of rehabilitation'.[3] He said the following regarding the matters in mitigation specific to them, and how they would moderate their individual sentences:

For you, Van Tun[g] Le, there is the isolation of prison here, and the disconnection from your family in Vietnam. As I have said, your parents have reached a very late stage of life.

For you, Minh Nguyen, there is the loss of the Byrne Street property which is the subject of automatic forfeiture under the Confiscation Act. This was raised and discussed with counsel this morning.

There is also the imminent threat and likely consequence of deportation. You also feel isolated in prison.

These matters go to reduce the length of your sentences. I see them as having particular relevance to the length of the minimum terms I should set. I shall impose different sentences upon you. I will put that better. I shall impose different sentences upon each of you.

This disparity should reflect the difference in your roles and connection to the crop houses. I have had reference to the schedules of comparative cases, but bearing in mind that each case and sentence must also be considered on its individual circumstances.[4]

22 The judge then sentenced the applicant and Le as indicated above.

23 The applicant's overall submission with regard to ground 1 was that, having regard to the mitigating factors, the individual sentences, the head sentence, and the non-parole period were manifestly excessive. In particular, it was noted that he had pleaded guilty at an early stage, and had demonstrated genuine remorse.

24 Further, the applicant submitted the fact that the Byrne Street property had been confiscated had been given insufficient weight by the judge as a punitive factor in the instinctive synthesis. It was noted that he had $60,000 worth of equity in the property. He submitted that, for a person of modest means, the confiscation of such an amount would be a significantly punitive factor.

25 In his written case, the applicant submitted that some 49 cases involving cultivation of a commercial quantity of a narcotic plant have come before this Court since 2007. He submitted that of those cases, only two had resulted in higher sentences than that imposed on the applicant.[5] He did not provide any support for that submission by reference to the supposed comparators themselves.

26 With regard to ground 2, the parity ground, the applicant submitted that the sentences imposed upon himself and Le with regard to charge 1, and the non-parole periods, gave rise to a justifiable sense of grievance.

27 More specifically, the applicant submitted that while it was open to his Honour to characterise his role as being more significant, it did not justify the degree of uplift in the sentence actually imposed. It was submitted that the same could be said regarding the applicant's personal circumstances.

28 The applicant submitted that the burden of deportation weighed far more heavily upon him. This was because Le was willing to return to his family in Vietnam, while the applicant's family had established a life in Australia.

29 The applicant also pointed to the added punitive factor of the confiscation of the Byrne Street property, which had not applied to Le.

30 With regard to ground 1, the respondent submitted that the objective gravity of the offending was high. The total amount seized was 11.4 times the commercial quantity. General deterrence had a large role to play in the sentencing exercise.

31 The respondent further submitted that the judge had taken into account, and had regard to, all relevant matters in mitigation. These included the added burden of the confiscation order, and the prospect of deportation. While the applicant had pleaded guilty at an early stage, counsel noted that Le had pleaded guilty some three months earlier. It was also noted that the applicant had initially sought to deny, and subsequently minimise, his role in the offending.

32 Further, the respondent contended that the judge had properly taken into account the burden upon the applicant that deportation would have, and distinguished how that differed from Le's circumstances.

33 The respondent also noted, by reference to the plea transcript and the sentencing remarks, that the confiscation of the Byrne Street property had properly been taken into account by the judge as a relevant punitive factor.

34 During oral argument, I asked counsel whether she cavilled with the submission put forward by the applicant that there were only two other sentences for this offending that were higher than that imposed on the applicant. She responded that she was not aware of the specific cases, but did not seek to challenge the applicant's submission in that regard.

35 In relation to ground 2, counsel submitted that it was open to the judge to find that the applicant had a more serious and involved role in the cultivation operation. Le, on the other hand, could be described as 'a mere crop sitter.' Further his Honour had properly balanced the competing considerations of the applicant's more serious role, than that of Le, and the added burden that deportation and the confiscation placed on the applicant.

36 Counsel submitted that 'the mitigating circumstances pertaining to the applicant were not 'much more significant' than those applying to Le.' In that regard, the sentencing remarks clearly reflected that his Honour had properly weighed up those matters.

37 There were four matters which led me to grant leave in respect of ground 1.

38 First, I agreed, for the reasons advanced by the applicant, that the confiscation order in relation to the Byrne Street property was a significant punitive factor. That order resulted in the applicant's forfeiture of $60,000 worth of equity in the property. That was a significant loss and created a large financial burden, particularly for a person of modest means, as the applicant was.

39 Second, the prospect of deportation would weigh particularly heavily upon the applicant. Unlike Le, the applicant had an established life in Australia, as did his wife and children. He is faced with the very real prospect that he will be separated from his family upon the completion of his non-parole period. That level of anxiety and uncertainty is an additional burden that would weigh very heavily upon him during his time in custody.

40 Third, while I was unable to find the specific cases to which the applicant referred, I note that recently, in Selaci v The Queen,[6] this Court refused leave to appeal against sentence on, inter alia, the ground of manifest excess.

41 In that case, the applicant had pleaded guilty to a single charge of cultivating a commercial quantity of a narcotic plant, possession of a drug of dependence, and theft of electricity. The total weight of cannabis seized was just under 170 kilograms. The applicant was aged 57 at the time of the offending, and was characterised by this Court as no mere 'crop-sitter'.[7] On the charge of cultivation, the applicant received a sentence of 3 years and 10 months.

42 Accepting the limited utility of comparative cases, I note that the Victorian Sentencing Manual Case Summaries, to which the applicant referred, reveals that there has been no case before this Court in recent years where an individual sentence for cultivation of a commercial quantity has been as high, or higher, than that imposed on the applicant. It seems to me that that individual sentence is one of the heaviest, if not the heaviest, for this specific offence, to come before this Court in recent years. That, of itself, should give some pause for thought.

43 Fourth, it was accepted by counsel that while the applicant's role was more serious, and more involved, in the cultivation operation than that of Le, his Honour could not, and did not find that he was the 'principal entrepreneur' of the operation.

44 For those reasons, and having regard to the particular circumstances of this case, I am troubled by the length of the sentence imposed on charge 1. I consider that it is arguable that a less severe sentence should have been imposed.

45 As regards ground 2, I agree, for the reasons advanced by the respondent, that the applicant has no justifiable sense of grievance. The judge was clearly alive to the circumstances personal to each offender, and properly weighed the applicant's offending against that of Le, as demonstrated in his Honour's reasons.

46 Accordingly, I granted leave to appeal on ground 1, and refused leave on ground 2.

[1] DPP v Nguyen (Unreported, County Court of Victoria, Judge M Bourke, 21 November 2019), [18]-[19], [21], [23]-[26] ('Reasons').

[5] In his written case, the applicant referred to the Judicial College of Victoria, Victorian Sentencing Manual Case Summaries, 7.6.1.1. In its overview of cases heard by this Court regarding sentences for cultivation of a commercial quantity of a narcotic plant, only one case appeared to exceed the individual sentence of 5 years and 6 months imposed in this case. In R v S [2006] VSCA 134, the appellant had been sentenced to an individual term of 6 years. That sentence, however, was imposed for a charge of cultivation of a large commercial quantity.

[6] [2020] VSCA 276.