Nguyen v The Queen [2021] VSCA 211

1 On 19 November 2019, the appellant pleaded guilty to one charge of cultivating a commercial quantity of cannabis L ('CQ cultivation'), and two charges of theft. On 21 November 2019, following reasons for sentence,[1] the appellant was sentenced as set out in the table below.

Cultivating a commercial quantity of a narcotic plant (cannabis L)

6AAA Statement: 6 years, with a non-parole period of 4 years and 6 months.

Other orders: Appellant ordered to pay compensation to the sum of $29,509.21 to Energy Australia and $1,772.18 to Origin Australia. Appellant's Byrne Street property to be forfeited to the State pursuant to the Confiscation Act 1997.

2 On the same day, co-offender Van Tung Le, who had earlier pleaded guilty to one charge of CQ cultivation and one charge of theft, was sentenced as follows.

Cultivating a commercial quantity of a narcotic plant (cannabis L)

6AAA Statement: 5 years' imprisonment, with a non-parole period of 3 years.

3 On 12 November 2020, Weinberg JA granted the appellant leave to appeal against his sentence on the following ground:[2]

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.

4 At the time of the offending, the appellant was 41 years of age and lived in Springvale, in Melbourne's south east. Le was 55 years of age and lived in the neighbouring suburb of Noble Park.

5 The offending took place between 12 July 2018 and 14 November 2018, across two separate properties in Stawell, a town in regional Victoria. The first property was located in Byrne Street, and had been purchased by the appellant in November 2015. The second property was located in Stone Street, and had been purchased in the name of the appellant's wife in June 2018.

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

7 On 9 November 2018, Wineberg drove past the property and observed Le mowing the lawn, and the appellant at the front door. The appellant's car was parked in the driveway. Wineberg conducted a check on the vehicle and discovered that the appellant had an outstanding arrest warrant in relation to a separate matter. Later that day, police intercepted the appellant's vehicle. Le also had an outstanding warrant. Both men were arrested.

8 Wineberg attended the Byrne Street property and noticed a strong smell of cannabis. He saw a rubber hose protruding from the brickwork and heard what he thought to be ceiling fans. He subsequently obtained a search warrant for the property.

9 Just after 8:00 pm, police executed a search warrant at the property and located a sophisticated hydroponic system being used to cultivate cannabis L plants. A front bedroom had been fitted with lighting and watering systems. The garage had also been converted into a grow room, with lights and a watering system. Police also located fertiliser and nutrients inside the garage.

10 Police seized 405 plants weighing a total of 246 kilograms (part of charge 1 - cultivating a commercial quantity of a narcotic plant). Forensic Officer, Kylie Slattery, estimated that the most mature plants in the crop were between 14 to 16 weeks old.

11 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). A compensation order was sought in relation to that electricity in the amount of $29,509.21.

12 Police became aware of the Stone Street property when they located documents connecting the appellant to the property, following his arrest on 9 November 2018. The appellant had purchased the Stone Street property in his wife's name. He had attended to inspect the property and negotiate the sale, paid the deposit, and attended the property upon settlement in October 2018.

13 On 14 November 2018, police executed a search warrant at the Stone Street property. Once again, the property housed a sophisticated hydroponic system being used to cultivate cannabis. A front bedroom had been fitted with lighting and watering systems. The garage had also been converted into a grow room, with lights and a watering system. Police also located fertiliser and nutrients inside the garage.

14 A total of 81 plants of various maturities were located, weighing a total of 40 kilograms (part of charge 1 - cultivating a commercial quantity of a narcotic plant). Slattery estimated that the most mature plants in the crop were between 13 to 15 weeks old.

15 Once again, Powercor Australia was contacted, and a contractor was sent out to the site. An unmetered electrical connection was located within a room cavity at the front of the house. Origin Energy subsequently advised police that the electricity account for this property was in the name of Le (charge 3 - theft). A compensation order was sought in relation to that electricity in the amount of $1,772.18.

16 The combined weight of the two crops was 286 kilograms, which exceeded the threshold for a large commercial quantity ('LCQ') threshold. It was accepted by the prosecution, however, that both the appellant and Le only intended to cultivate a commercial quantity of cannabis, and the charges of CQ cultivation were laid on that basis.

17 In his record of interview, the appellant told police that he owned the Byrne Street property, but that he did not know anything about the crop inside. He said that he had rented the property to Le from early August 2018. The appellant declined to answer questions regarding the Stone Street property.

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

Van Trun[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 principal 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.[5]

19 The judge then turned to each offender's personal circumstances. Le 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.

20 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.

21 The appellant has been a permanent resident of Australia since 2012. He is married and has three children aged 18, 10, and 4. His Honour found that it was likely that the appellant 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 Tung 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.[6]

22 The judge then turned to the objective gravity of the offending, noting that it had extended over a period of four months and that an important aspect of its seriousness was the quantity cultivated. His Honour said that 'drug abuse is a recognised community problem' and that 'the expected profit from cultivation operations such as these is seen as high'.[7] In those circumstances, he said, the moral culpability of those who sought to profit from cultivation, and the sentencing considerations of general deterrence, just punishment, and denunciation were relevant.

23 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'.[8] In relation to the appellant, his Honour continued as follows:

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.[9]

24 The gravamen of the appellant's submissions 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 the appellant had pleaded guilty at an early stage, and had demonstrated genuine remorse.

25 Further, the appellant submitted that 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.

26 In his written case, the appellant submitted that some 49 cases involving cultivation of a commercial quantity of a narcotic plant had come before this Court since 2007. He submitted that of those cases, only two had resulted in higher sentences than that imposed on the appellant.[10]

27 The respondent submitted that the objective gravity of the offending was high. The total amount seized was 11.4 times CQ. General deterrence had a large role to play in the sentencing exercise.

28 The respondent submitted further 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 appellant had pleaded guilty at an early stage, counsel noted that Le had pleaded guilty some three months earlier. It was also noted that the appellant had initially sought to deny, and subsequently minimise, his role in the offending.

29 Further, the respondent contended that the judge had properly taken into account the burden upon the appellant of the prospect of deportation. The respondent also submitted that the confiscation of the Byrne Street property had properly been taken into account by the judge as a relevant punitive factor.

30 As the judge noted, drug cultivation is a serious offence. CQ cultivation is especially serious, as is made clear by the maximum penalty of 25 years' imprisonment. Factors relevant to assessing the seriousness of a particular cultivation offence include the offender's role, and the scale, sophistication and duration of the cultivation activity. Because the offences are quantity-based, the quantity cultivated will ordinarily be a factor of critical importance.[11]

31 Judged against those considerations, this was a very serious instance of CQ cultivation. It was a large scale operation, carried out over 4 months, at two quite separate locations. The judge described the crops at the two houses as 'typical and sophisticated hydroponically grown crops including electrical bypass'.[12] As noted earlier, the total weight of the crops from both properties was 286 kilograms, representing more than 11 times CQ (25 kilograms) and in fact exceeding LCQ (250 kilograms).[13] The quantity cultivated was therefore at the very top of the quantitative scale for CQ cultivation. Counsel for the appellant properly conceded that this was so.

32 Counsel also conceded, properly in our view, that the moral culpability of the appellant was high. As the judge found, the appellant was 'more seriously and significantly involved' than he was prepared to admit, and his motivation was financial gain.[14] Although the judge was unable to find that the appellant was 'the principal entrepreneur', he was clearly the controller of the operation.[15] It was very significant, as his counsel conceded in this Court, that the appellant took the initiative to expand the operation by purchasing the Byrne Street property expressly for the purpose of cultivation.

33 The judge was correct, given the gravity of the offending and the high moral culpability of the appellant, to place emphasis on general deterrence, denunciation and just punishment.[16] In those circumstances, the sentence of 5 years and 6 months for this offence of CQ cultivation must be viewed as moderate, representing as it does little more than 20 per cent of the maximum penalty.

34 Importantly, the sentence can be seen to reflect the giving of appropriate weight to the matters relied on in mitigation: the plea of guilty, the lack of prior convictions and good prospects of rehabilitation, the forfeiture of the Byrne Street property, and the prospect of deportation. But for those matters, a substantially higher sentence would have been warranted.

35 The judge referred to all of those mitigating factors, saying that they went 'to reduce the length of your sentences'.[17] He saw them as 'having particular relevance' to the fixing of the minimum term.[18] His Honour proceeded to set the appellant's non-parole period at 55 per cent of the head sentence, which is unusually low. It is clear, therefore, that considerable weight was given to the mitigating factors.

36 It is necessary, finally, to say something about current sentencing practices, on which counsel for the appellant placed particular reliance. The argument was put at two levels, first by reference to what were said to be comparable cases on CQ cultivation, and secondly by reference to longer-term sentencing patterns for this offence.

37 The comparable cases may be disposed of shortly. As counsel for the appellant conceded in response to questions from the Court, there is such similarity between hydroponic cultivation operations that, very often, the only real point of differentiation between one case and another is the quantity cultivated. Put another way, the effect of a quantity-based scheme of cultivation offences is that, other things being equal, the greater the quantity cultivated the more serious the offence.[19]

38 In Nguyen v The Queen,[20] the offender pleaded guilty to CQ cultivation. He was found to have been the 'principal cultivator' in a sophisticated hydroponic operation. The quantity cultivated was 127 kilograms, less than half as much as in the present case. The offender, who had a prior conviction for drug trafficking, was resentenced by this Court to 5 years' imprisonment on the cultivation charge. Given the dramatic difference in quantity between the two cases, and given that the offender there played a similar role to the appellant, that decision provides no basis to question the appropriateness of the appellant's sentence.

39 Nor does the decision in Brown v The Queen.[21] In that case, the offender pleaded guilty to CQ cultivation, having established and operated the hydroponic set up himself, for profit. He had a prior conviction for 'low level' cultivation. Once again, the quantity cultivated was dramatically smaller than in the present case. Two hundred and twenty-six cannabis plants were found, a little over twice the commercial quantity (100 plants) - less than 20 per cent of the quantity in the present case. Specific error having been conceded by the Crown, this Court reduced the sentence for CQ cultivation from 4 years to 2 years and 6 months' imprisonment.

40 Counsel also drew attention to Selaci v The Queen,[22] which was referred to by Weinberg JA in granting leave. That, too, was a case of cultivation using 'sophisticated hydroponic set ups'. The quantity cultivated was a little over 3 times CQ, barely a quarter of the quantity cultivated by the present appellant. On a plea of guilty to CQ cultivation, the offender was sentenced to 3 years and 10 months' imprisonment, which this Court described as 'moderate'.[23]

41 As to the longer term sentencing trends for this offence, the submission drew attention to the relevant Sentence Overview, published by the Judicial College of Victoria as part of its invaluable Sentencing Manual.[24] A Sentence Overview is a tabulation of decisions of this Court in appeals against sentences imposed for the relevant offence. The decisions are tabulated in descending order of severity of sentence, with key details included for each case. In the case of quantity-based offences like CQ cultivation, the table helpfully includes the quantity cultivated, expressed as a multiple of the applicable commercial quantity.[25]

42 There are several striking features of the Sentence Overview for CQ cultivation, which tabulates more than 50 decisions of this Court over a 15 year period from 2006 to 2021. First, as Weinberg JA noted in granting leave, in none of those cases was the sentence as high as the sentence imposed on this appellant. In a handful of cases, the sentence imposed (either at first instance or by this Court on resentencing) was 4 or 5 years' imprisonment but the vast majority were in the range 1-3 years.

43 Secondly - and this largely explains the first feature - in none of the cases did the quantity cultivated approach the scale of the appellant's cultivation. Very few cases involved a quantity in excess of 5 times CQ. In the vast majority of cases, the quantity cultivated was 1-3 times CQ. Given that the quantity which the appellant cultivated exceeded 11 times CQ, and given his 'controlling' role, it is hardly surprising that his sentence was (slightly) higher than the next highest sentence of 5 years.

44 Thirdly, it is clear that despite repeated indications from this Court that sentences for this offence needed to increase, sentencing practice has remained essentially unchanged. Concern was first expressed about the state of sentencing for CQ cultivation as long ago as 2006, in Director of Public Prosecutions v Duong,[26] when the Director called for increased sentences given what was said to be the increased prevalence of offending of this kind. In 2010, in Nguyen v The Queen,[27] the Court (Maxwell P, with whom Buchanan JA agreed) questioned the adequacy of current sentencing for the offence, in the light of the maximum penalty of 25 years' imprisonment, stating that this was 'a matter of the first importance'.[28]

45 Most significantly, in 2016, in Nguyen v The Queen,[29] the Court upheld a submission by the Director that sentences for offences of CQ cultivation 'of mid-range seriousness' did not reflect the objective seriousness of the offending, and needed to be increased. The Court (Redlich JA, with whom Tate JA agreed) concluded as follows:

The range of sentences for this particular category of seriousness of an offence became compressed at a low level, perhaps more than a decade ago. The sentence given to the appellant for mid category seriousness of offending was the same as that given to other offenders guilty of much less serious conduct. On the other hand, sentences can be found of the same order which were imposed for offending significantly more serious than that of the appellant. CSP [current sentencing practice] has not adequately distinguished between significantly different degrees of criminality.

Not only is the range compressed but it is also apparent that the highest sentences imposed on a principal for cultivating a commercial quantity together with the lowest sentences imposed for cultivating a large commercial quantity have become a ceiling for the offence of cultivating a commercial quantity. CSP of the last decade does not reflect the objective seriousness of mid category offending having regard to the sentencing regime and the maximum penalty.

Despite the number of occasions this Court has commented upon the low level of CSP for this offence, CSP has remained the same. The sentencing range is not only low, but very narrow. The ceiling for the highest category has depressed sentences in the mid category so that the latter merges with offending in the lowest category. These sentencing norms have long ago replaced the maximum penalty as the guide to the seriousness of the offence. As a result, offenders who are principals in such offending are able to draw upon standards of sentencing that are entirely inappropriate to their degree of criminality.

...

The current sentencing regime has persisted for far too long. It has wrongly informed community thinking and left misconceptions unaltered in some parts of the community about the seriousness of such conduct.[30]

46 The present case serves only to highlight the scale of the problem with sentencing practices, and the urgency of the need for change. It must be recalled that the quantity which the appellant cultivated actually exceeded the LCQ threshold. If a charge of LCQ cultivation could have been proved, the applicable maximum would have been life imprisonment.[31]

47 As it was, the appellant fell to be sentenced at the highest end of the quantitative scale for CQ trafficking, for which the maximum is 25 years' imprisonment. It could hardly be thought that the legislature contemplated a sentence of 5 years and 6 months' imprisonment as being appropriate for such offending, especially given the appellant's significant role, the motive of profit and the scale and sophistication of the operation.

48 As with the quantity-based drug trafficking offences, the legislature has deliberately constructed a hierarchy of cultivation offences.[32] What has been said by this Court in a line of trafficking cases starting with Gregory - about the need for appropriate relativities between sentences for offences of different levels of seriousness - applies with equal force to the cultivation offences. Prosecutors need to ensure that sentencing judges have the relevant decisions drawn to their attention. And the Director should be astute to bring appeals if inadequate sentencing persists.

[1] DPP v Nguyen (Unreported, County Court of Victoria, Judge M Bourke, 21 November 2019) ('Reasons for Sentence').

[2] The appellant was refused leave to appeal in respect of proposed ground 2 (parity).

[3] This summary is taken from Nguyen v The Queen [2020] VSCA 283 ('Leave Reasons').

[4] This summary is taken from the Leave Reasons.

[5] Reasons for Sentence [18]-[19], [23]-[26].

[10] In his written case, the appellant referred to the Judicial College of Victoria, Victorian Sentencing Manual Case Summaries, [7.6.1.1] ('Sentencing Manual'): see further paras [41]-[44] below.

[11] Nguyen v The Queen [2010] VSCA 127, [19] (Maxwell P, Buchanan JA agreeing at [42]); Dang v The Queen [2020] VSCA 24, [2], [15] (Niall and Weinberg JJA).

[13] The Crown conceded that it could not prove the requisite criminal intent as to that quantity.

[16] Doan v The Queen [2010] VSCA 250, [17] (Nettle JA, Harper JA agreeing at [18]).

[19] DPP (Cth) v KMD [2015] VSCA 255, [52] (Maxwell P, Weinberg and Beach JJA) ('KMD'); Muaremov v The Queen [2018] VSCA 298, [25] (Maxwell P and Kaye JA).

[20] [2017] VSCA 286.

[21] [2020] VSCA 60.

[22] [2020] VSCA 276.

[23] See also Nguyen and Pham v The Queen [2018] VSCA 322: 3 times CQ, sentences of 3 years and 9 months and 3 years and 6 months; Nguyen and Ho v The Queen [2019] VSCA 134: 2 times CQ, sentence of 3 years and 8 months.

[25] In KMD [2015] VSCA 255, [55]-[57], the Court explained how the expression of quantities in this form enables the drawing of meaningful comparisons between cases.

[26] [2006] VSCA 78, [17]-[19] (Warren CJ).

[27] [2010] VSCA 127.

[29] [2016] VSCA 198.

[31] Drugs, Poisons and Controlled Substances Act 1981 ss 72, 72A.

[32] See Gregory (a pseudonym) v The Queen [2017] VSCA 151; Rahmani v The Queen [2021] VSCA 51; Quah v The Queen [2021] VSCA 164.