R v Pham [2007] VSCA 234

Court of Appeal (Vic)|2007-10-18|Before: CHERNOV, VINCENT and REDLICH JJA

CRIMINAL LAW - Sentencing - Cultivation of commercial quantity of cannabis - Whether open to judge to sentence appellant as "principal offender" - Proof of facts on sentencing - R v Storey [1998] 1 VR 358 - Extraneous observations by sentencing judge - Whether undue weight given to general deterrence - Cultivation - Significance of maturity of crop to sentencing disposition - Appeal dismissed.

**1 On 22 November 2006, the appellant, Cuong Van Pham, who is now aged 40 years, pleaded guilty in the County Court at Shepparton to one count of cultivating a commercial quantity of cannabis and one count of theft of electricity. The maximum custodial penalty for cultivation of narcotic plants in a commercial quantity is 25 years' imprisonment and for theft it is 10 years' imprisonment. After hearing a plea of mitigation made on his behalf, the learned sentencing judge sentenced the appellant to two years and nine months' imprisonment on count 1,and six months' imprisonment on count 2. His Honour ordered that three months of the sentence imposed on count 2 be served cumulatively on that imposed on count 1, producing a total effective sentence of three years' imprisonment, and ordered that the appellant serve a minimum two years before becoming eligible for parole. The appellant appeals against sentence pursuant to leave granted to him on 25 May 2007 pursuant to s 582 of the .

2 The circumstances of the offending and of the appellant can be briefly summarised. The appellant arrived in Australia from Vietnam in September 2005 on a tourist's visa. On 3 February 2006, he moved into premises at 3 Fowler Street, Tallygaroopna, a brick veneer house in which he set up what the sentencing judge said was a sophisticated and elaborate hydroponic cannabis operation in nearly all rooms of the house. The photographs of the premises taken by the police at or about the time of the appellant's arrest confirm his Honour's conclusion in that regard. The police raided the premises on 20 March 2006 and there located a total of 150 plants that weighed over 93 kilograms. The plants were at varying stages of maturity and, although none had been harvested, approximately half of them were close to full maturity. It was estimated that electricity in excess of $3,000 had been unlawfully appropriated for the venture by the use of an electricity by-pass that had been installed at the premises. The appellant made full admissions when interviewed by police and told them that he grew the cannabis with the intention of selling it to make money.

3 As to the appellant's circumstances, he was born in North Vietnam during the Vietnam war where he endured almost daily bombing until he was aged about eight years. He is one of eight children and, unsurprisingly, given the conflict there, grew up in poverty. Two of his sisters have obtained Australian citizenship and it seems that the appellant also harboured the desire to migrate here. In about 1985, he fled to Hong Kong and was incarcerated before being repatriated to Vietnam. In the event, it seems that he has spent about eight years in a refugee camp where he met his wife with whom he has a four year old child. The appellant's wife and child reside in Vietnam with his parents. Except for some time spent working in food preparation at the refugee camp, the appellant has worked almost exclusively in the clothing industry as a sewing machinist. As his counsel below submitted, and his Honour accepted, he had no expertise in horticulture, agriculture or in electronics. He arrived in Australia from Vietnam, as I have said, in September 2005.

4 In sentencing the appellant, his Honour took into account the appellant's early plea of guilty, his full admissions and his co-operation with the authorities. His Honour also took into account the fact that imprisonment would be more onerous on the appellant because of his lack of English and that he suffers from Hepatitis B, as well as his likely deportation on the expiration of his sentence and his loss of opportunity to migrate with his family to Australia in the future.

Ground 1: appellant erroneously sentenced as principal

**6 The appellant's primary ground was that his Honour erred in sentencing him on the basis that he was "the principal in the enterprise". His Honour rejected the appellant's submission that he grew the crop for others which, his Honour said, was made by way of a "wink and a nod". It was argued that his Honour erred in at least two respects. First, it was said, given that counsel for the appellant disputed the Crown's contention that the appellant was a principal, his Honour had to be satisfied beyond reasonable doubt that, on the evidence, he acted as principal. It was said that instead of investigating that question, his Honour erroneously sought to determine whether there was any evidence that showed that the appellant was not a principal. Secondly, it was argued that his Honour overlooked the surrounding circumstances which, it was claimed, made it apparent that he did not conduct the undertaking as a principal, contrary to the principles laid down in R v Storey.[1]

7 In his record of interview of 20 March 2006, the appellant said that the owner of the premises in question was a person named Chien, who had a "butcher shop in the market" and that he, the appellant, had rented the premises from him for the purposes of cultivating cannabis since about February 2006. The appellant insisted that Chien had no involvement in the cultivation of cannabis. He said that he had bought the plants from a friend named Long and grew them and he explained to police the watering system, the nutrients and the artificial light that were used in that connection, including what he did to bypass the electricity meter. He insisted in the record of interview that he alone established the operation and that a "friend" showed him how to set up the hydroponic equipment, which he had purchased for approximately $7,000, paid in part with his own money and in part by way of a loan from another friend named Thang (from whom, he said, he borrowed $6,000). The appellant told police that he planned to sell the marijuana and pay the debt from the proceeds.

8 I consider that it was open to his Honour to conclude that the appellant's claim that he grew the crop for others was made by way of a "wink and a nod", and that he did not make the impugned finding contrary to the principles in Storey. It has been recognised in that case that, upon a plea of guilty, the sentencing procedure is ordinarily attended with a degree of informality.[2] Thus, it is common for the Crown or for the accused to assert matters from the Bar table or to refer to matters in the depositions or in the victim impact statement as if they were proved facts. The usual rules of evidence normally do not apply unless it is made clear by the relevant party, or it can be inferred, that a particular fact is contested or is put in issue, in which case the matter must be established in the ordinary way and to the relevant level of satisfaction that has been identified in Storey.

9 In this case, it is apparent enough that the Crown opened its case on the basis that the appellant was the principal in the operation in question. And the closest that one gets to the appellant disputing this is by his counsel's answer to the judge's query as to how a person in the appellant's position could establish such an operation within a matter of months of arriving in Australia. The appellant's counsel said to his Honour that "you don't need much imagination to work out what's going on here ...". That was said to have amounted to an implied submission that the appellant was involved in the illicit operation on behalf of someone higher up the hierarchy. I consider that this statement does no such thing. At best, it is an assertion that the appellant acted only as agent or servant, but it is plain enough that his Honour was not bound to accept it.[3]

10 Be that as it may, the only evidence on this matter consisted of the appellant's record of interview in which he admitted that the operation was conducted by him. This admission was not challenged by the appellant by way of evidence, as could have been done at the hearing - a matter that his Honour was entitled to take into account in the sentencing disposition.[4] Thus, the only evidence on this issue before his Honour consisted of the appellant's (unchallenged) admission. As was said in Storey[5] it was "for the judge to find the [relevant] facts" and then determine the sentence. In the circumstances, I think, it was open to his Honour to conclude on the evidence that the appellant conducted the undertaking as principal.[6] I think that it was the only conclusion open on the evidence. Thus, I reject the argument that the judge reached the impugned conclusion in breach of the requirements in Storey.

11 I also consider that the surrounding circumstances do not establish, even as a matter of probability, that the appellant conducted the operation for someone else. The surrounding circumstances, to which counsel pointed were, primarily, his recent arrival from Vietnam without any apparent means, his lack of apparent expertise in the technical aspects of the operation and his location of a house for rent in a relatively secluded country town. Reference was also made to the absence of detail in the record of interview as to the purchase of the electronic equipment that was used in the operation and the implication, which seems to have been accepted by the Crown, that the appellant's family, either here or in Vietnam, might be in danger if he disclosed who was behind the operation.

12 It may be accepted for present purposes that, given the surrounding circumstances to which reference has been made, the almost inescapable inference is that someone else was also involved, in a proprietorial sense, in the establishment and operation of the venture. But even if that were to be assumed, it would not translate into the conclusion for which the appellant's counsel contended, namely, that the circumstances make it apparent that the appellant conducted the operation on behalf of another. They show no more than that the appellant was conducting the undertaking akin to that of a franchisee or a joint venturer as distinct from a self-established proprietor of the undertaking. But that would not determine that he was conducting the business as agent or an employee of another.

13 As the High Court said in The Queen v Olbrich[7], in the context of sentencing the offender who was involved in the importation of illicit drugs:**

Whether others stood to gain from the respondent's conduct does not, it seems to us, affect what sentence should have been passed on him. That depends on what he had done and who he was, not on what other may have hoped to gain from his activity.

14 As I have said, I consider that what the appellant did here is established in his record of interview, and that shows that he conducted the illicit enterprise in his own right or, possibly, with someone else. On either basis, his participation in it was as a principal. For these reasons I would reject ground 1. It follows, as the appellant conceded in his outline of submissions, that ground 4, which complains that the sentence is manifestly excessive, has no substance and must fail. In any event, I consider that in light of the gravity of the offence and the offending conduct and the applicable sentencing principles, when balanced against the appellant's personal circumstances and other mitigating factors, the sentence is within the range of sentences that was available to his Honour in the proper exercise of his sentencing discretion.

Ground 2: erroneous comment by sentencing judge

**15 It was next argued under cover of ground 2 that his Honour's statement in his sentencing remarks that there is a relationship between the culture of North Vietnamese who come to Australia and undertakings of the kind pursued by the appellant resulted in his Honour giving undue weight to general deterrence. It may be accepted that his Honour's observation on the cultural disposition of immigrants from North Vietnam, which I think was obviously not based on any evidence before him, was not a matter as to which the judge could have properly taken judicial notice. It seems to me that the remark was intended to reflect his Honour's view as to the frequency of the commission of the offence in similar circumstances. In my view, however, it did not result in his Honour giving undue weight to general deterrence.

16 The impugned observation was made at the outset of his Honour's sentencing remarks and where he dealt with the offences in question and the prescribed penalties in relation to them. On the other hand, his Honour's analysis of the relevance of general deterrence to the sentencing disposition was made near the end of his sentencing remarks and was unrelated to the impugned comments. In dealing with general deterrence the judge said that it is the "principal sentencing factor" for offences of this nature. And it is plain enough that his Honour considered that the sentence should operate as a deterrent to all who might consider engaging in relevant offending and did not direct his observations to deterring those who had arrived here from North Vietnam. His Honour relevantly said:**

That means that those who engage in the crime of cultivating commercial quantities of cannabis should expect substantial gaol penalties. Those who steal electricity can expect to go to prison. The Courts all too often, as I said, see this sort of installation being conducted in Victoria, and it is to be hoped that those minded to do so will take account of the sentence imposed on you [and] will think twice before engaging in similar conduct.

I mention for completeness that it was not argued for the appellant that his Honour erred in his ascribing importance to general deterrence, and rightly so, in my opinion. Ordinarily, general deterrence has a significant role to play in the sentencing of drug offenders.[8] But, as I have said, it is apparent from the sentencing remarks that his Honour considered that this principle had general application and was not directed primarily at deterring members of the appellant's community from engaging in offending conduct.

17 The problems that may be created when a sentencing judge refers in the sentencing remarks to his or her own anecdotal experience or impression in respect of the offender's criminal conduct was highlighted by Vincent JA in R v Truong[9] in the context of the sentencing judge in that case applying his experience to the sentencing disposition. It seems that his Honour intended that the sentence should be such as to send a deterrent message to Vietnamese in Australia who might consider trafficking in illicit drugs. Vincent JA said this:

There is more than one danger in the application by a sentencing judge of his own anecdotal experience or impressions, however extensive that experience might be. Importantly, such views, which are in no way based upon the evidence immediately before him in the matter and depend upon a variety of unchallengeable considerations, accord to the individual no opportunity for answer. It would be indeed unfortunate were judges to replace ordinary principles upon which courts must operate in such circumstances with their own impressionistic responses to the situations with which they are confronted. I would add that the principle of general deterrence, to which his Honour directed those remarks, is concerned with the engagement in the prohibited conduct by members of the community generally. It should not be used to convey a message to a specific ethnic community by the imposition of a deterrent sentence upon an offender who is regarded as an appropriate vehicle essentially because he is a member of that community. [10]

In that case the appellant, who came from Vietnam, had pleaded guilty to two counts of trafficking in a drug of dependence in respect of which he was sentenced to a total effective sentence of four years, with a non-parole period of two years. Vincent JA, with whom the other members of the Court agreed, came to the conclusion that the sentencing judge appeared to have based his sentence, "in part at least, upon his view of the need to deter members of the Vietnamese community from engaging in drug trafficking through the particular person before him who was identified as Vietnamese, rather than the need to deter persons from engaging in drug dealing generally. In consequence, he attributed insufficient significance to the appellant's background, youth and rehabilitative endeavours".

**18 The present case, however, is plainly different from Truong in relevant respects. The reference by the sentencing judge here to general deterrence was made, as is apparent from what I have said earlier, in broad terms without any indication that the sentence was intended to deter members of the appellant's ethnic community, as distinct from persons generally, from engaging in offending conduct similar to that which was pursued by the appellant. In other words, the vice flowing from what the sentencing judge said in Truong is not present here. There, the sentencing judge went beyond making an inappropriate, if not unjustified, observation about the relevant offending conduct of a minority group; he impermissibly applied the principle of general deterrence in order to seek to deter the members of that group from engaging in such behaviour. For the reasons I have given, this did not occur here.

19 Thus, his Honour's impugned observation, although inappropriate and irrelevant, did not vitiate his sentencing discretion as the appellant contends under cover of this ground.**

20 It was claimed under cover of ground 3 that his Honour failed to find that there had been no harvest of saleable crop and in finding that, even if that were the case, it was of little weight. The appellant's counsel below submitted to the sentencing judge that the undertaking had not, at the time of the appellant's arrest, produced a saleable crop. Counsel sought to persuade his Honour that this circumstance should be taken into account as a mitigating factor in the sentencing disposition. His Honour considered that, although he took that matter into account, he gave it little weight. He was plainly right to do so notwithstanding that it was argued for the appellant, on the basis that he was not a principal in the undertaking, that those circumstances should have been given more than just "little weight". This argument, however, must fail for at least three reasons. First, because, as I have said, there was no relevant error in his Honour's conclusion that the appellant was a principal in the undertaking, so that the basis of the claim under cover of this ground has not been made out. Secondly, and in any event, there was no evidence before his Honour that the crop would not yield its full potential. On the contrary, as I have noted, the evidence was that approximately one half of the plants were close to full maturity. Thirdly, it is difficult to see that the stage of development of the crop can bear on the culpability of the offence of cultivation. In the circumstances, the fact that, at the time of the appellant's arrest, the crop was not harvestable was of no or only little weight for the purpose of the sentencing disposition. In the circumstances I would dismiss this ground.

**21 For the above reasons I consider that the appeal should be dismissed.

24 The order of the Court is that the appeal is dismissed.

[3] R v Bernath [1997] 1 VR 271, 276.

[4] R v Cardona (1998) 2 VR 126, 138 (Callaway JA).

[6] I put to one side the fact that, having regard to the terms of the presentment to which the appellant pleaded guilty, he thereby admitted each ingredient of the offence - a see, for example, R v D'Orta-Ekenaike [1998] 2 VR 148 - and it must be taken that he conceded that he engaged in the cultivation as principal.

[8] See, for example, R v Pantsis [1998] VSCA 134 [12] (Tadgell JA) in the context of the offence of trafficking heroin.

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