Pham v R

Court of Criminal Appeal (NSW)|2020-08-05|Before: Meagher JA, Fullerton J, Button J

Solicitors: Birchgrove Legal (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2018/213945 Decision under appeal Court or tribunal: District Court Date of Decision: 28 November 2019 Before: Bourke SC DCJ File Number(s): 2018/213945

Judgment

MEAGHER JA: I agree that the orders proposed by Fullerton J should be made, for the reasons that her Honour gives. Having regard to the factual matters described by her Honour at [48]-[50] it is not necessary to resolve any perceived differences in decisions of this Court in relation to the construction and application of the Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(n).
FULLERTON J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal an aggregate sentence of 7 years' imprisonment with a non-parole period of 3 years and 10 months imposed in the District Court on 28 November 2019 after he entered pleas of guilty to two offences in the Local Court on 20 March 2019.
The first of those offences alleged the applicant's knowing participation in the cultivation of a large commercial quantity of cannabis plants (being 2,640 plants), contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) ("the cultivation offence"). Under the Schedule to the Act, a large commercial quantity of cannabis plants cultivated by enhanced indoor means is 200 plants. The applicant's participation in that offence extended between 19 May 2017 and 12 July 2018.

The single ground of appeal

The applicant relies on a single ground of appeal which contends that the sentencing judge erred in finding that the cultivation offence was aggravated pursuant to s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act") because that offence was "part of a planned or organised criminal activity". The applicant submitted that in circumstances where there was no evidence that he was involved in the planning or organising of that offence, other than the evidence which established the limited role he performed as a knowing participant in the cultivation of the cannabis, it was not open to the sentencing judge to find the statutory aggravating factor in s 21A(2)(n) made out beyond reasonable doubt.

The facts for sentencing purposes

It was part of the agreed facts that the applicant's knowing participation in the cultivation offence was comprised of the steps he took to obtain leases for 13 different residential premises in various southern and western suburbs of Sydney, using at least three false names. The false identification documents which he presented to the estate agents in those names included the use of his photograph.
In each of the leased premises (with the exception of one at South Hurstville where an inactive hydroponic setup was located) a large number of cannabis plants were in the process of being cultivated using artificial sources of light and/or heat. A total of 2,640 cannabis plants were in the process of being cultivated by those means.
There was no evidence that the applicant was aware of the actual number of plants under cultivation in the leased premises at any one time; nor was there any evidence that he was responsible for paying the rent on those premises or that he had any direct involvement in the cultivation process.
As to the offence of participating in a criminal group, it was part of the agreed facts that the applicant, his partner and another person were members of a criminal group who were involved in obtaining leases for 17 residential premises in the suburbs of south and west Sydney for the purpose of cultivating cannabis using false names and identification documents (13 of the 17 leased premises being used to cultivate the cannabis plants the subject of the cultivation offence). The applicant's role in the criminal group included directing his partner to obtain some of the leases in false names. He also arranged for the third person in the group to attend upon real estate agents and to enter into leases in false names. The applicant gave that person money that had been provided to him by an unnamed male within the criminal group. His Honour accepted that there was someone more senior in the hierarchy of the criminal group directing the applicant in relation to the group's activities.
On 11 July 2018, a search warrant was executed at the applicant's residence. No cash or valuable items were located. At the time the search warrant was executed the applicant was located in the upstairs bathroom attempting to flush a mobile phone down the toilet. He was subsequently arrested.

The applicant's subjective case

The applicant was aged between 31 and 32 at the time he committed the offences and 33 at the date of sentence. He was born in Vietnam. He was raised by his grandparents due to his parents' work commitments. His grandfather was a harsh disciplinarian who beat the applicant with sticks and forced him to run around the village naked as punishment.
The applicant completed the equivalent of Year 12 in Vietnam and described himself as an academically above average student. After leaving school he studied English in Vietnam for two years.
The applicant came to Australia to study hairdressing at the age of 20. He completed a Certificate III in Hairdressing and a Diploma of Business Management. He worked as a hairdresser at the Queen Victoria Building for two years before working in other salons at Green Valley, Bonnyrigg and Randwick. At the time of his arrest he had been self-employed at his own salon in Bankstown for a year. The applicant is an Australian citizen.
The applicant was married in 2010. His wife gave birth to a daughter the same year. The applicant divorced his wife in 2014 after learning his daughter was not his biological child. He subsequently became depressed and began gambling and using drugs and alcohol. He began playing poker machines at his local hotel and initially gambled small amounts before progressively increasing his gambling to the point where he became unable to fund his gambling addiction. The applicant initially borrowed hundreds of dollars from cousins and friends, before borrowing $20,000 from the Commonwealth Bank of Australia, which he proceeded to gamble away, before eventually borrowing a total of $30,000 from Mr Vu, a co-offender more senior in the hierarchy of the cannabis cultivation enterprise.
The applicant met his current partner and co-offender in 2012. They formed a relationship in 2016 which was current at the time of sentence. The applicant has one biological son, born not long after his arrest and detention on remand. His partner received a community corrections order after pleading guilty in the Local Court.
Mr Bradley Jones, forensic psychologist, diagnosed the applicant as suffering from: a gambling disorder in sustained remission (as the applicant is in custody); cannabis use disorder of moderate severity, also in sustained remission; and an alcohol use disorder of moderate severity, also in sustained remission. He assessed the applicant as being at a low/medium risk of reoffending based upon Level of Service Inventory - Revised (LSI-R) testing.
Mr Michael Costello, clinical psychologist, was of the view that at the time of his offending the applicant would have met the DSM-V criteria for both Major Depressive Disorder and Generalised Anxiety Disorder.
The applicant has no record of previous convictions. Written references tendered on his behalf confirmed that the offences were out of character. He expressed remorse and contrition for his offending behaviour which the sentencing judge found to be genuine. His Honour also accepted the applicant's pleas of guilty were motivated by genuine remorse and contrition.
After being remanded in custody following his arrest, the applicant regularly attended at the Long Bay Correctional Complex Chapel Services where he enthusiastically commenced Bible study. He was baptised as a Christian in August 2019.
In light of the applicant's social and family support and the fact that on his release from custody he will be able to resume his hairdressing trade, his Honour was satisfied that the applicant's prospects of rehabilitation were good and that his risk of reoffending was low.

The sentencing judge's factual findings relevant to the issue the subject of the appeal

The factual finding under challenge on the appeal is encapsulated in the following extract from the sentencing reasons. In dealing with the cultivation offence the sentencing judge said: … while I accept that the offence involved preparation and planning, this is, as the Crown conceded, a common or usual feature of this type of offence and I should, therefore, take this into account as an aggravating feature only if I am satisfied that the level of planning and preparation went beyond that which is inherent in the offence. In this regard I do accept that the offence is aggravated by reason of the level of planning and preparation involved in arranging the leases for 13 separate properties. (Emphasis added.)
Having made that finding, the sentencing judge went on to say: Again, however, in an attempt to avoid double counting, I temper this factor because of the fact that, in sentencing the offender, I will necessarily be taking into account the combined total number of plants and premises involved. Having regard to the matters that I have referred to, and in particular to the relatively limited role that the offender performed, I assess the objective seriousness of this offence as slightly below the middle range of objective seriousness.
Those related findings are not under challenge. Neither is there any challenge to his Honour's assessment of the objective seriousness of the cultivation offence at slightly below the mid-range.

The submissions of the parties

In summary, the applicant submitted that the facts agreed for sentencing purposes, taken together with his evidence on sentence, allowed for no finding other than that what he did as a knowing participant in the cultivation offence was limited to arranging 13 leases on the residential properties which he knew were to be used for the cultivation of the cannabis for commercial purposes. It was submitted that activity did not involve planning or organisation of a kind which would allow for a finding that the statutory aggravating factor in s 21A(2)(n) is established. The applicant relied upon this Court's decision in Legge v R [2007] NSWCCA 244 in support of that proposition.
The applicant's senior counsel emphasised that there was no evidence that the applicant performed any role in identifying suitable rental premises for the cultivation of cannabis plants or that he was responsible for paying the rent on the premises. Counsel also emphasised that the sentencing judge accepted that there were people more senior to the applicant in the hierarchy of the criminal group which was involved in obtaining the 17 leases in false names and presenting false identification documents for that purpose and, it must follow, more senior people were directing those who knowingly participated in the cultivation offence, including the applicant.
Reliance was also placed on the sentencing judge having accepted the applicant's evidence that he became implicated in the criminal group, and ultimately in the cultivation offence, because of debts which had accumulated as a result of his gambling addiction, the onset of which was coincident with the demise of his marriage. Those debts included $30,000 owed to Mr Vu, a person the sentencing judge accepted was also involved in the criminal group. The sentencing judge accepted the applicant's evidence that he agreed with Mr Vu to "work off" that debt by obtaining the 13 leases on the residential premises which he knew would be used in the cultivation of cannabis. The sentencing judge also accepted the applicant's evidence that after the debt was reduced to $1000 he would have been under pressure to continue his role as a participant of the criminal group for fear of reprisals from Mr Vu, even if there was no specific threat made or clearly articulated.

The divergence of the authorities

The applicant's counsel drew the Court's attention to what he identified as divergent opinions in this Court as to whether the statutory feature of aggravation in s 21A(2)(n) of the Sentencing Act applies only where an offender has been involved in the planning and preparation for the offence for which he or she is to be sentenced, or whether it is sufficient that the offence itself involved planning and preparation in its commission, irrespective of the extent to which the offender was directly or personally involved in that planning and preparation.
In Legge, the decision upon which the applicant relied, Simpson J (Spigelman CJ and Harrison J agreeing) said of the operation of s 21A(2)(n), at [34 ]: [It] was not … intended to be used to aggravate an offence where the offender being sentenced was not involved in, or part of, the planning and organisation [of the offence].
In DPP (NSW) v Cornwall [2007] NSWCCA 359 (decided five months after Legge and where the Court was not referred to the earlier decision), Latham J (Rothman J agreeing, Basten JA not expressing an opinion) said of s 21A(2)(n), at [54], that "it fixes upon the characteristics of the offence, not the degree to which an individual contributes to the planning".
In Legge, the applicant pleaded guilty to a charge of assault with intent to rob whilst armed with an offensive weapon (a knife). He approached a plain clothes police officer who was using an ATM inside a shopping centre at Castle Hill. The applicant placed his arm around the victim's shoulder and demanded the money the police officer had just withdrawn from the ATM. When he refused, the applicant reached into the front pocket of the jumper he was wearing and again demanded the money, this time announcing that he had a knife. The police officer took hold of the applicant and pushed him against a wall, whereupon the applicant attempted to gain access to the knife. He was subsequently arrested.
Legge's case on sentence was that, on the day of the robbery, he and a number of other men were together with a person who was a known cannabis supplier. That person declared his intention to commit a robbery at Castle Hill and threatened the applicant with violence if he did not join in. The applicant then travelled to Castle Hill in a car with two others. The applicant's case, which was accepted by the Court, was that if he had not done as he was directed he would have been physically assaulted. It was also accepted by the Court that he was, in every practical sense, an unwilling participant in the joint criminal enterprise to commit armed robbery.
On Legge's sentence appeal it was submitted that, on those facts, the sentencing judge erred in finding that the offence was aggravated by virtue of being a "planned and organised criminal activity". In upholding that ground, Simpson J (Spigelman CJ and Harrison J agreeing) said, at [34]: No doubt the offence was planned; but, on the applicant's evidence, he was not involved in the planning and was not responsible for it. That evidence was not rejected. S 21A(2)(n) was not, in my opinion, intended to be used to aggravate an offence where the offender being sentenced was not involved in, or part of, the planning and organisation.
In Cornwall, the Crown appealed against the inadequacy of a sentence where the respondent pleaded guilty to, inter alia, charges of specially aggravated detain for advantage and aggravated break, enter and steal. The offences exhibited a high degree of planning. The respondent was one of three men who assaulted and robbed a bar manager of a hotel at Blacktown, late at night in the victim's home. Each of the offenders wore a balaclava and was armed with a weapon. The victim was asked questions about the hotel, its security system and access to the safe. The keys to the hotel were taken from him. He was struck on the head. After the keys were taken, the co-offenders departed, leaving the respondent to guard the victim. The co-offenders went to the hotel which had ceased trading for the day, entered it using the key obtained from the victim, disabled the security system, and about $21,000 in cash was stolen.
In assessing the respondent's criminality, the sentencing judge took into account the fact that he was not the instigator of the offences and that he did not anticipate or plan the infliction of actual violence against the victim. As to s 21A(2)(n), the sentencing judge found that the respondent was involved in some limited planning, but that "most of the planning was carried out by his co-offenders".
In dealing with the asserted manifest inadequacy of the sentence, Latham J said (Rothman J agreeing) at [56]: The Judge then fixed a term of three years imprisonment for the Aggravated Break Enter and Steal to be served concurrently with the detention offence. Once again, this sentence was well below what was appropriate to reflect the objective gravity of such an offence, committed whilst on conditional liberty, exhibiting a high degree of planning and involving the loss of a substantial sum. The respondent's claim that he was not involved to any extent in the planning of the offence is of limited relevance. Section 21A(2)(n) fixes upon this characteristic of the offence, not the degree to which an individual offender contributes to the planning.
What are said to be the divergent opinions in Legge and Cornwall as to the intended operation of s 21A(2)(n) were referred to in SS v R; JC v R [2009] NSWCCA 114. That case involved offenders who had pleaded guilty to, inter alia, two offences of robbery in company with wounding.
At about 2:20am on the day of the offence, SS and JC entered a petrol station where two victims, aged 73 and 16 years, were working. SS was armed with a crowbar and JC was armed with a baseball bat. Both jumped onto the counter. SS struck one victim on the head with the crowbar. JC approached the other victim and struck him on the head with the baseball bat. SS was at that time attempting to open one of the tills without success. JC went to another till and opened it. Both offenders took money, cigarettes and other items of property.
Both SS and JC were members of a criminal gang. An older male, Eli Byrne, was implicated as the gang leader. JC had informed the author of the Juvenile Justice report tendered on sentence that Byrne, a teacher, had gained his trust by offering him additional music tuition in his home after hours. Byrne had given him drugs and alcohol and told him that he would have to repay him by committing crimes for him. JC reported that Byrne threatened both him and his family. JC said that Byrne and another person broke into his family home late at night and woke him up waving a bowie knife in front of his face while the person he was with wielded a tomahawk-style weapon. JC reported that when these men were in his home he was afraid for the safety of his family members.
One of JC's grounds of appeal was that the sentencing judge erred in finding as a matter of aggravation that the offence was part of a planned or organised activity. JC contended that it was clear from his Honour's reasoning that he had impermissibly imported a level of planning by Byrne as a matter of aggravation in the sentence he received.
In dealing with that ground of appeal, Price J (Tobias JA and James J agreeing) said: [94] The fact that an offence was planned does not necessarily give rise to the aggravating factor in s21A(2)(n): Fahs v Regina [2007] NSWCCA 26; R v Hewitt [2007] NSWCCA 355. For the planning of an offence to be taken into account as a factor of aggravation, the degree of planning must exceed what would ordinarily be expected of the kind of offence under consideration: R v Yildiz (2006) 160 A Crim R 218. [95] There was no evidence that JC had participated in the planning or organisation of the robbery on 28 December. All of the evidence pointed in the other direction. There was JC's evidence of his participation in the offence because of the threats made to him. [96] The offence was undoubtedly planned by Byrne. The Crown, however, concedes that the evidence of the degree of planning of the robbery was not so much greater than that inherent in such an offence as to warrant the finding of an aggravating circumstance and error has been established. [97] During submissions, the Crown referred to a present lack of clarity as to whether planning under s 21A(2)(n) applies only where the offender has been involved in the planning of the offence, or whether it is sufficient where the offence itself was planned, to take planning into account as an aggravating factor. This Court, it was suggested, has adopted two different approaches to this issue which are as follows: Simpson J in Legge v R [2007] NSWCCA 224 (with whom Spigelman CJ and Harrison J agreed) said at [34]: "No doubt the offence was planned: but, on the applicant's evidence, he was not involved in the planning and was not responsible for it. That evidence was not rejected. S 21A(2)(n) was not, in my opinion, intended to be used to aggravate an offence where the offender being sentenced was not involved in, or part of, the planning and organisation." In DPP V Cornwall [2007] NSWCCA 359 Latham J (with whom Basten JA and Rothman J agreed) said at [56]: "The respondent's claim that he was not involved to any extent in the planning of the offence is of limited relevance. Section 21A(2)(n) fixes upon this characteristic of the offence, not the degree to which an individual offender contributes to the planning." [98] Given the Crown's concession, it is unnecessary for present purposes to attempt to resolve the apparent difference in these statements. [99] In any event, it seems to me that where, as in the present case, duress is raised, there is a logical difficulty in giving weight on the one hand to a finding as an aggravating factor that the offence was planned even though the offender did not take any part in its planning or organisation and on the other hand giving weight to a finding as a mitigating factor that the offender's participation in the offence stemmed from pressure and duress.
As noted earlier, on this appeal it was submitted that the approach in Legge to the intended scope and operation of s 21A(2)(n) is correct. Counsel submitted that approach is consistent with a fundamental sentencing principle that an offender should not be liable to additional punishment for what is done by others without his or her knowledge or express approval. The applicant also submitted that the approach in Legge is not only consistent with the statutory language used in s 21A(2)(n) which requires the Court to examine the characteristics of the offence for which an offender is to be sentenced in order to determine whether it is an offence that was part of "a planned or organised criminal activity", but that the features or characteristics identified for that purpose must be, firstly, additional to the essential legal elements of the offence for which an offender is to be sentenced and, secondly, additional to the essential factual particulars which go to establish each of those essential elements to avoid the risk of "double counting".
Counsel submitted that because the applicant pleaded guilty to the offence of being knowingly concerned in the cultivation of a commercial quantity of cannabis and not the substantive offence of cultivating a commercial quantity of cannabis, he could only be exposed to the risk that his sentence would be increased under s 21A(2)(n) where, consistent with the analysis in Legge, there was evidence capable of establishing beyond reasonable doubt that he was actually involved in the planning or organisation of the criminal activity which had the commercial cultivation of cannabis as its objective. To put it another way, counsel submitted that where there was no evidence that the applicant personally organised or planned any aspect of the cultivation additional to what the sentencing judge found to be the limited role he performed as a knowing participant in that activity by securing the leases on 13 premises, it was not open to the sentencing judge to find the statutory feature of aggravation under s 21A(2)(n) satisfied simply because of "the level of planning and preparation involved in arranging the leases for 13 separate properties", even if the applicant is to be taken to have known of the additional planning and organisation undertaken by others in the enterprise.
The applicant submitted that despite the sentencing judge acknowledging the risk of double counting, his Honour's finding that the cultivation offence was aggravated by "the level of planning and preparation involved in arranging the leases for 13 separate properties" ultimately involved "double counting" when that activity was synonymous with what the applicant actually did as a knowing participant in the cultivation enterprise or, to put it another way, synonymous with the role he performed as a knowing participant in that offence.
In the Crown's submission, the apparent conflict in the authorities to which the Court was referred is academic where, in the circumstances of this case, the sentencing judge effectively found that both the cultivation offence and the role the applicant played in its commission as a knowing participant were significant enough to attract a finding beyond reasonable doubt that the offence was part of "a planned or organised criminal activity". That being the case, the Crown submitted it was not necessary for this Court to resolve the apparent tension in the authorities. I accept that submission.
In any event, it seems to me that the difference in the approach of this Court in Legge and Cornwall should not be seen so much as revealing a difference of opinion as to the construction of s 21A(2)(n), but as reflecting a difference in the way the section might be applied in different factual contexts. As I see it, the extent to which the statutory feature of aggravation in s 21A(2)(n) applies in an individual case depends on the particular offence charged; the particular offending for which a person is to be sentenced within what might be, in any given case, a broad category of offending; the extent of the involvement of a particular offender in that offence, including cases where an offender might be subject to threats of violence or non-exculpatory duress before participating in the offence; together with the significance of the role played by that person in the commission of the offence and his or her knowledge of the criminal enterprise in which they are engaged. On that approach to the facts before the sentencing judge, I am not satisfied that the error contended for by the applicant has been made out.
It is evident from the agreed facts that the applicant was a trusted member of the enterprise which had the cultivation of a commercial quantity of cannabis as its object. It is also clear that were it not for the organisation of 13 premises to be leased for the purposes the cultivation, and in false names to ensure that if the cultivation process was detected there would be no trace to the applicant and through him to other members of the enterprise, the scale of the enterprise and the period over which the plants were under cultivation without detection could not have been achieved. The fact that the applicant may not have chosen the premises to be leased or that he did not pay the rent on them is not to the point. What is relevant is that the applicant was actively engaged in the process of arranging each of the 13 leases, a level of engagement which must have provided him with knowledge that he was engaging in a commercial cultivation of cannabis with others and of a scale which necessarily involved significant planning and organisation, including the planning and organisation for which he was responsible.
Not only did the sentencing judge specifically reject any suggestion that the applicant was coerced into participating in the cultivation offence, as distinct from his participation being motivated by the opportunity to reduce a significant debt to an unnamed co-offender, coupled with a concern that even after the debt was discharged there might be reprisals were his participation not to continue but, additionally, his Honour should be taken to have found that the applicant falsely representing himself on 13 separate occasions to be a legitimate tenant seeking a residential lease as demonstrable of the fact and extent of his knowing participation in the "planning and organisation" involved in the criminal activity which had the commercial cultivation of cannabis as its objective.
The sheer scale of the cultivation enterprise not only allowed the sentencing judge to find that the offence was more serious than ordinarily encountered in the general category of offending comprehended by an offender's knowing participation in the commercial cultivation of cannabis, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act (involving, as it did, the use of multiple premises and the cultivation of thousands of cannabis plants by enhanced means) but, having made that finding, in my view, it was open to his Honour to then consider whether that offence was aggravated in the way contemplated under s 21A(2)(n) by it being part of "a planned or organised criminal activity", and to find that fact established beyond reasonable doubt, even if the evidence as to the applicant's actual contribution to the planning and organisation of that offence was limited.
Even were I of the view that the approach in Legge is correct and to be preferred to the approach in Cornwall and, for that reason, it was not open to his Honour to find the statutory feature of aggravation established on the evidence because of the limited role the applicant played in the organisation and planning of the cultivation of the cannabis, on resentence I would not have indicated a different sentence for the cultivation offence and, accordingly, I would have dismissed the appeal on the basis that no lesser aggregate sentence was warranted.
The orders I propose are as follows: 1. Leave to appeal is granted. 2. The appeal is dismissed.
BUTTON J: I agree with Fullerton J. I particularly agree that the direct role of the applicant in the cultivation involved planning and organisation.

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