R v Wong [2007] VSCA 278

Court of Appeal (Vic)|2007-11-22|Before: BUCHANAN JA, COLDREY and CAVANOUGH AJJA

CRIMINAL LAW - Sentencing - Aggregate sentencing - Two convictions only - Cultivation of a drug of dependence and theft - Error to impose aggregate sentence - Whether appellant to be re-sentenced as a 'serious offender' - Sentencing discretion re-opened - Assistance to authorities - Parity - Appeal allowed - Appellant re-sentenced - Sentencing Act 1991, Part 2A, s 9.

3 The appellant pleaded guilty to, and was convicted in the County Court on, one count of cultivation of a commercial quantity of a narcotic plant (being cannabis) contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981, and one count of theft of property (being electricity) contrary to s 74 of the Crimes Act 1958.

4 Sentence was imposed on 21 February 2007. The learned sentencing judge imposed an aggregate sentence for the offences of three-and-a-half years' imprisonment, with a non-parole period of two years. Forensic, disposal and two compensation orders were made.

5 A ground of appeal is that his Honour erred in imposing an aggregate sentence rather than individual sentences.

6 His Honour considered that he had power to impose an aggregate sentence by reason of the amendments to s 9 of the Sentencing Act 1991 which were introduced as from 15 August 2006 by the Courts Legislation (Jurisdiction) Act 2006. Those amendments, among other things, authorised courts to impose an aggregate sentence in relation to offences prosecuted by way of indictment. Previously there was no such power. Section 9 had applied only to summary matters. The provisions of s 9, as amended, and the history and nature of aggregate sentences were examined in detail by this Court in DPP v Felton[1]. That decision was handed down on 18 April 2007. Obviously the learned sentencing judge did not have the benefit of it when imposing sentence in the present matter.

7 In Felton, Kellam JA (with whom Buchanan and Eames JJA agreed) held, in**

summary, that the 2006 amendments did not intend to substitute aggregate sentencing for the existing law and practice relating to the structure of multiple sentences in relation to indictable matters heard in the County Court and the Supreme Court, and, in particular, that it remained necessary for the sentencing judge to identify, in accordance with existing sentencing principles, 'separate events giving rise to specific counts or groups of counts and to order appropriate accumulation if appropriate, or alternatively to state specifically, as part of the reasons which are required by s 9(3) of the Sentencing Act for imposing an aggregate sentence, that all counts the subject of such a sentence are being treated as concurrent'.[2] Earlier in his judgment, Kellam JA noted that in the Second Reading Speech for the new s 9, the Attorney-General had said:

An aggregate sentence can be a more flexible and pragmatic option than imposing an individual sentence for each offence. It enables the court to impose a sentence reflecting all of the offender's conduct. In some cases this will enable the court to more clearly explain to the community the total sentence that it is imposing on an offender.

8 In his brief concurring judgment, Buchanan JA said:

In cases where there are a limited number of counts, generally it will not be necessary to impose an aggregate sentence in order "to more clearly explain to the community the total sentence" that the Court is imposing. In fact, the imposition of an aggregate sentence may obscure how the sentencing judge has arrived at individual sentences and the manner in which those sentences have contributed to the total effective sentence. On the other hand, where there is such a large number of counts that the application of the normal principles governing cumulation and concurrency would produce an inappropriate total effective sentence, an aggregate sentence may be more readily understood. In such a case, in my opinion, it is still necessary for the sentencing judge to identify, at least in general terms, the components of the sentence, that is, the individual terms and the extent of concurrency and cumulation he has employed, in order that the public and appellate courts can discern how the sentencing judge has viewed the gravity of the offences committed by the accused.[3]

**9 In the present case, only two counts had been laid against the appellant. However the learned sentencing judge did not identify, even in general terms, the components of the sentence. In the light of Felton, this omission can be seen to involve error. Mr Ryan SC, for the Crown, effectively conceded this.

10 Specific sentencing error having been demonstrated, it falls to this Court to re-sentence the appellant and, strictly speaking, it is therefore unnecessary to consider any other arguments advanced by the appellant in respect of the 'aggregate sentencing' ground of appeal or to consider the appellant's two other grounds of appeal.

11 However it is appropriate to notice and deal with a further argument that was included in the appellant's written outline of submissions in relation to the aggregate sentencing ground, albeit not pursued orally by Senior Counsel for the appellant today.[4] For this purpose it is necessary to have regard to s 9(1A) of the Sentencing Act 1991, which was inserted by the 2006 amendments and which reads:**

(1A) Despite subsection (1), a court must not impose an aggregate sentence of imprisonment if -

(a) the offender is a serious offender within the meaning of Part 2A and any of the offences of which the offender is convicted is a relevant offence within the meaning of that Part; or

(b) the offences comprise at least one offence committed by the offender while released under a parole order and one offence committed at another time.

It is also desirable to have regard to the following definitions which appear in section 6A (within Part 2A) of the Sentencing Act 1991:

'Serious drug offender' means an offender (other than a young offender) who has been convicted of a drug offence for which he or she has been sentenced to a term of imprisonment or detention in a youth justice centre'.

'relevant offence', in relation to a serious offender means -

(b) a drug offence in the case of a serious drug offender;

"drug offender" means an offender to whom clause 4 of Schedule 1 applies.

12 In the appellant's outline of submissions it was asserted that, by reason of s 9(1A)(a), the learned sentencing judge had no power to impose an aggregate sentence on the appellant. Senior Counsel's outline included the following:

The offence of cultivation of a drug of dependence being cannabis in not less than a commercial quantity is a relevant offence because it is a drug offence in relation to a serious drug offender who is a serious offender pursuant to sections 6A and 6B and Clause 4 of Schedule 1 of the [Sentencing] Act.

**13 In my opinion, as Senior Counsel himself now recognises, this submission was misconceived. The (single) offence of drug cultivation of which the appellant was convicted did not amount to a 'relevant offence within the meaning of [Part 2A of the Sentencing Act]' for the purposes of s 9(1A)(a) of the Act. Under Part 2A, a single offence cannot serve two purposes. It cannot be both the offence conviction of which and sentence for which makes the person a 'serious offender' (as defined) and a 'relevant offence' (as defined). A relevant offence is an offence of a specified kind committed by a person who, by reason of his or her conviction and sentence for some other (qualifying) offence, is deemed by the statute to be a serious offender.[5] So, for example, neither s 6D nor s 6E nor s 6F (each of which is within Part 2A) applies at all to the sentencing of a person (like the appellant) who has only ever been convicted of a single 'drug offence' (as defined). Correspondingly, where a person has been found guilty of two or more 'drug offences' (as defined), neither s 6D nor s 6E nor s 6F applies in relation to the sentencing of the person for the offence in respect of which he or she is first convicted. It seems that R v Pennell and R v Rankin[6] may have proceeded on a different basis, but in that case there was no express reference to this point or to the relevant authorities. I would feel obliged to follow Arnautovic in this regard.

14 Incidentally, it may one day need to be decided whether, in a case in which an aggregate sentence of imprisonment has been imposed under s 9(1) of the Sentencing Act in respect of a number of offences including a 'drug offence', it can be said that the person concerned is (on that account), 'an offender ... who has been convicted of a drug offence for which he or she has been sentenced to a term of imprisonment' within the meaning of the definition of serious drug offender in s 6B of the Act. Corresponding questions might arise in relation to the definitions of 'serious arson offender', 'serious sexual offender' and 'serious violent offender'. The very risk of engendering uncertainty in that regard might disincline courts to impose aggregate sentences in cases involving serious offences of the relevant kinds. However, it is unnecessary to consider this aspect of the matter further. There are other, obvious reasons why it would be inappropriate for this Court, in re-sentencing the appellant, to impose an aggregate sentence.

15 The appellant's conduct the subject of count 1 was a serious example of a serious offence. He was charged with cultivating cannabis during a period of two months from 17 September to 17 November 2004. He was responsible for the transformation of three bedrooms, the kitchen and the laundry of a rental house at 15 Goldsworthy Court, St Albans into what was described in the agreed prosecution summary as 'a sophisticated cannabis cultivation setup, consisting of a power bypass, air filters, power transformers and numerous lights and timers'. On the day when the police discovered the setup, there were 308 cannabis plants with a total weight of 41.536 kilograms (excluding roots), and dried cannabis in bags weighing 216.4 grams. The plants had been placed in red and green buckets and were extremely healthy. There were bags of a growing nutrient in the kitchen. In the bathroom was a homemade watering device consisting of a broom handle which had a plastic container taped to the end of it like a large ladle. A number of nutrient solutions were also found in the bathroom. Adjacent to the kitchen was a pile of approximately 25 garbage bags which were filled with used plant medium, root balls and stalks. Informed opinion placed the value of the potential crop from the 308 plants at between $147,450 and $236,000 if sold in pound quantities, and between $536,400 and $804,000 if sold in gram quantities.

16 In the usual fashion, the electricity supply had been diverted around the meter not only to avoid the cost of the large amounts of electricity used but also to avoid any suspicion that such usage might bring. The value of the electricity stolen during the period 17 September to 17 November was $2,294.18.

17 The appellant was arrested on 17 November 2004 and interviewed the next day. He gave 'no comment' answers in the interview to questions concerning 15 Goldsworthy Court, St Albans. About 14 months later, at a committal in January 2006, he pleaded guilty to the counts on which he was later dealt with in the County Court.

18 I turn to the matters to which the Court must have regard under s 5(2) of the Sentencing Act 1991. The maximum penalty for the cultivation offence is 25 years' imprisonment. The maximum for the theft is 10 years.

19 I have had regard to a number of sentencing decisions of this Court relating to the cultivation of cannabis and its usual accompaniment, the theft of electricity, given over recent years; and I have given consideration to current sentencing practices for comparable indictable matters in Victoria generally as best I can.

20 As the learned County Court judge pointed out, the crop at Goldsworthy Court well exceeded the thresholds for a commercial quantity, both in terms of the number of plants (308 compared to 100) and the weight (41.5 kilograms compared to 25 kilograms). In addition there was a (relatively) small amount of dried cannabis. The potential value - between $147,000 and $804,000 - was high. As already indicated, I would agree with his Honour's comment that '[t]his was clearly a significant example of such an offence'.

21 Without seeking to distinguish between particular kinds of drugs in terms of harmfulness,[7] I would also agree with the learned County Court judge that drugs of dependence wreak significant harm in our community and that, because of the large quantity involved, there was potential in the present case for the drugs to penetrate deeply into the community. The maximum penalty of 25 years' gaol for the cultivation offence is adequate testimony to the seriousness with which the Parliament views crimes of the present kind.

22 The appellant has already been ordered to pay $2,294.18 in compensation to Origin Energy for the theft of the electricity and to pay $5,000 to the owner of the premises for damage done in the course of misusing the house as the appellant did. I understand that there is no challenge to those orders.

23 Although the appellant did not initially cooperate with the investigating police, I accept that his plea of guilty at a 'hand up' committal in January 2006 can be regarded as an early plea. It avoided the cost and trouble of a contested committal and of a trial. I note that there was some negotiation in relation to the plea. Before the County Court, the Crown told his Honour, without objection, that initially the appellant, his wife and another person were all charged in relation to three properties at which significant crops of cannabis had been grown (including Goldsworthy Court), but 'as a resolution' the appellant's wife had been dealt with in relation to two of the properties and the appellant was to be dealt with in relation to Goldsworthy Court only, with no co-accused. The appellant alone was 'taking responsibility' for this property.

24 The appellant was aged 43 at the time of the plea before the County Court. He had no prior convictions and there was nothing outstanding. He was in custody from 17 November 2004 until 19 July 2005 on which date he was able to raise the surety for his bail and was released. He was free on bail for some 19 months and was then returned to custody under his Honour's sentence on 21 February 2007.

25 A psychologist, Dr Wong, had been treating both the appellant and his wife, Ms Yen Hoang Duong. Separate reports relating to their respective backgrounds and history were tendered before his Honour without objection or challenge. It is desirable to refer to the wife's circumstances in some detail as well as the appellant's circumstances, because the appellant has raised a parity argument in relation to the sentence imposed on his wife. The psychologist's reports show, among other things, the following. The appellant grew up in Hong Kong. He was the second child in a family of nine siblings. The rest of his family remains in Hong Kong. The family was poor. His parents worked on a farm. To help the family financially, the appellant left school at 16 and joined the workforce. His siblings have done quite well in Hong Kong. He himself did a building apprenticeship and then entered the construction industry on his own account. He maintained several quite profitable construction businesses in Hong Kong until he migrated to Australia. The appellant met his wife in 1993 when she was working for him at a construction site in Hong Kong. She had had a tragic background and, perhaps for that reason, they found common ground and developed a solid relationship. Ms Duong was nine years younger than the appellant. She was born in August 1971. So she was 35 years old at the time of the appellant's plea. She was born in Hai Phong, North Vietnam, an area that was heavily shelled during the Vietnam War. As a child she was regularly exposed to the conflict. After the war her family led an unstable and itinerant existence. She left Vietnam on a small fishing boat in March 1989 at the age of 17. The boat carried 30 passengers. There was insufficient food or water. Many passengers died of starvation. Ms Duong was young and attractive and she was sexually assaulted on the boat. The boat finally reached Hong Kong Island. The passengers were badly treated by the Hong Kong authorities. They were locked up in a refugee camp in a remote area for a considerable period. Ms Duong was raped by the boat captain at the camp. She suffered hunger, fear and real danger. In 1990 she was sexually attacked by other detainees. She fell and hit her head and lost consciousness. She was hospitalised. Desperate, she moved in with an older man who was a drug addict. To support his addiction she worked as a prostitute in Mong-Kok. Her poor living conditions led to many illnesses, including mental problems and hepatitis B. She was also diagnosed with a cardiac condition which required open heart surgery. She had several heart by-passes. After her surgery, she stopped working as a prostitute and ceased her relationship with her partner. She began working as a labourer at the appellant's construction company. Their relationship began. They had their first child, a girl, in 1995. In 1996 Ms Duong migrated to Australia under the Refugee/Humanitarian Program. The appellant joined her in 2000 or 2002 (the reports differ in that respect). The couple had another female child in 2001. Immediately after the appellant arrived in Australia he obtained fulltime employment in the construction industry. He remained with the same company until he and his wife were arrested in November 2004 and charged with the relevant offences. While they were both in custody, their children were cared for by the Department of Human Services. When the appellant was released on bail in July 2005, he resumed caring for the children. When his wife was released on 15 November 2006 after completing her sentence, the appellant re-entered the workforce. Up until the time of the plea he was working full-time for a painting contractor earning $600 net per week.

26 According to the psychologist, as at the time of the report on the appellant (December 2006), the appellant had certain relatively minor physical ailments together with a 'chronic depressive disorder'. He was suffering from nightmares and at times sleeplessness. He was adhering to treatment plans. His psychological health was improving. He felt ashamed of himself and fearful. He presented as depressed, withdrawn and isolated. This had arisen in the context of his 'feelings of remorse'. He was 'genuinely remorseful and deeply regretful'. There was nothing to suggest that he would re-offend, as he had 'defined plans for his future and concern regarding his future employment'.

27 Naturally the appellant wished to be enabled to support his wife and family financially and physically. There was a report of February 16, 2007 from a neurologist confirming that Ms Duong suffered from a neurological disorder called myasthenia gravis. She was on medication for it. It causes generalised muscle weakness. Her condition was 'not completely controlled' and she had weakness of muscles of the eyes, neck and upper and lower limbs. This restricted her physical capacities and she would have 'difficulty' in lifting her children and running a household without assistance. While there was a prospect for improvement with further treatment, for the foreseeable future she had 'significant weakness' which impacted on her ability to live independently and without assistance.

28 The learned County Court judge summarised these matters and noted the appellant's reported fear that the children might have to be returned to the care of the Department of Human Services. I agree with his Honour's assessment that this was not a real risk. I note that the agreed prosecution summary records that Ms Duong was observed on numerous occasions between 8 July 2004 and 16 November 2004 attending a house in Hoppers Crossing where cannabis was being grown. She would often stay for up to two hours, accompanied by a female alleged co-offender. She ran from the premises to try to avoid police. The neurologist's report is brief and does not indicate when Ms Duong's neurological condition commenced or how it developed.

29 On the appellant's plea, in answer to a query from his Honour, counsel for the appellant acknowledged that there was no valid reason for the appellant's conduct. He referred to 'some problems with money' and said that the offending conduct had been seen as some type of 'quick fix'. His Honour accepted that the appellant, having pleaded guilty and having already served time in custody, had learnt a lesson from what had occurred.

30 During the plea there was a vague reference by counsel to confiscation orders having been made in relation to unspecified properties and to the appellant and his wife having lost their asset base. No real further advance was made in relation to the topic of loss of assets in the hearing before us today. It is difficult to place much weight on that matter.

31 A confidential letter relating to assistance given by the appellant to the authorities was provided to his Honour. This Court has now seen it also. His Honour considered that the letter did not justify much, if any, discount. It is true that the appellant had not given an undertaking to give evidence against anyone, but in the circumstances there may have been no need for him to do so. Counsel for the Crown below acknowledged that the information had been of some help. It had led to at least one arrest, but not at that stage to any conviction. There was no indication that the appellant was going to give any further assistance. In my view, the appellant took a significant risk in providing the information and he should receive a greater discount than his Honour was prepared to allow.

32 I would agree with the learned County Court judge that the elapse of time since the offending was a mitigating factor.

33 The appellant's counsel points to the fact that the appellant's wife was given the same effective sentence as her husband later received. He says that her offending was worse in that she was responsible for two properties.[8] Further, she was on bail in respect of a cultivation charge which had been laid against her in April 2002 in relation to a property in Delahy and in respect of which she had pleaded guilty on 15 November 2004, when, on the very next day, 16 November 2004, the police discovered the second cannabis setup in (Hoppers Crossing), for which she later accepted responsibility.

34 The learned County Court judge said that he could not see that parity of sentencing arose as between the appellant and his wife, although he bore in mind her sentence when dealing with the appellant. His Honour observed that the appellant's quantity was greater than the combined quantity of the wife's two properties. This observation seems to be an error, at least in terms of the total numbers of plants. In fact the combined total of plants for the wife was 349 compared to 308 for the appellant. However the comparison in terms of weight or value is not known. Moreover, the wife's personal history was much more evocative of sympathy than the appellant's. Indeed, the strength of the mitigating factors in her case was recognised by this Court in dismissing the DPP's appeal from the sentence she received. In that matter, Buchanan JA observed that her sentence 'may be viewed as lenient in the light of the respondent's offending conduct', but, taking into account her personal circumstances, the sentence was within range.[9] Warren CJ and Ashley JA agreed. The wife's offending, as acknowledged, was separate from the appellant's offending, as acknowledged. In my view considerations of parity are of little or no significance in this case.

35 The appellant's prospects of rehabilitation may be viewed as reasonably good. The appellant has no prior convictions. On the other hand, the appellant's own offending took place over a period of at least two months and it is hard to be confident that he had no knowledge of the earlier offending by his wife. In my view, specific deterrence and community protection both have some role to play in this case. General deterrence is obviously a significant factor. There is also a need for just punishment and denunciation.**

36 Taking into account all of these matters, I consider that the appellant should be re-sentenced as follows: on count 1 - imprisonment for three years; on count 2 - imprisonment for six months. I would order that three months of the sentence on count 2 be served cumulatively with the sentence on count 1. This would produce a total effective sentence of three years and three months. I would order that the appellant serve one year and nine months before becoming eligible for parole. I would otherwise confirm the sentencing and ancillary orders made by the County Court to the extent necessary. A declaration as to time already served will be required.

37 I agree with Cavanough AJA. I would add only that, notwithstanding R v Pennell and Rankin[10], an offender can only be treated and sentenced as a serious offender pursuant to the provisions of Part 2A of the Sentencing Act 1991 in respect of a conviction entered once the offender has become a serious offender.

38 I also agree with Cavanough AJA's reasons. I understand that a period of 519 days has already been served.

The sentences passed below are set aside and in lieu thereof the appellant is sentenced to be imprisoned for a term of three years on count 1 and for a term of six months on count 2.

It is ordered that three months of the sentence imposed in respect of count 2 be served cumulatively upon the sentence imposed in respect of count 1.

The total effective sentence is three years and three months' imprisonment.

A minimum term of one year and nine months' imprisonment is fixed before the appellant is to be eligible for parole.

It is declared that a period of 519 days has been served pursuant to the sentence and it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.

[4] The matter has implications for the re-sentencing of the appellant, in that it relates to the question whether he falls to be dealt with as a 'serious drug offender' within the meaning of Part 2A of the Sentencing Act 1991.

[5] See R v Arnautovic [2001] VSCA 34; (2001) 121 A Crim R 412, at [4]-[6], and the cases there cited.

[6] [2007] VSCA 225. See esp at [19].

[7] See R v Pidoto and O'Dea [2006] VSCA 185.

[8] Unlike the appellant, she fell to be sentenced as a 'serious drug offender' (in respect of the second property). However there is nothing in the material before us to indicate that, in fact, she received on that account a greater total effective sentence than she would otherwise have received.

[9] DPP v Duong [2006] VSCA 78 at [15].

Poisons and Controlled Substances Act 1981

Courts Legislation (Jurisdiction) Act 2006

Poisons and Controlled Substances Act 1981

Courts Legislation (Jurisdiction) Act 2006

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