REGINA v NGUYEN REGINA v CANNISTRA

Court of Criminal Appeal (NSW)|2006-11-16|Before: McClellan CJ, Hidden J, Hislop J, Clellan CJ

CITATION: REGINA v NGUYEN REGINA v CANNISTRA [2006] NSWCCA 389

JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 63; Hislop J at 64

DECISION: 2006/2050 - CANNISTRA; 1. Crown appeal upheld; 2. Quash the sentence imposed in lieu thereof impose the following sentence: (i) a non-parole period of five years and ten months to commence on 29 January 2004 and to expire on 28 November 2009 with a balance of term of three years and two months to expire 28 January 2013 2006/2044: NGUYEN 1. Appeal is dismissed.

CATCHWORDS: CRIMINAL LAW - CROWN APPEAL - CULTIVATE PROHIBITED DRUG - large commercial quantity - cannabis - manifestly inadequate - relevance of sentences imposed on co-offenders - role in the cultivation - degree of control - expectation of profit - mind of the enterprise - role in recruitment - assistance to authorities - offences on Form 1 - whether starting point of sentences refected objective criminality

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 (NSW)

Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 137 A Crim R 180 R v Baker [2000] NSWCCA 85 CASES CITED: R v Barbara (unreported, NSWCCA, 24 February 1997) R v Le (Lieu Thi) [1999] NSWCCA 146 R v MacDonnell (2002) NSWCCA 34 R v MD, BM, NA, JT [2005] NSWCCA 342

The Crown (Appl) PARTIES: Thi Ha Nguyen (Resp) Vincenzo Cannistra (Resp)

J Dwyer (Crown/Appl) COUNSEL: J Stratton SC (Resp - Nguyen) D T Spears (Resp - Cannistra)

Director of Public Prosecutions (Crown) SOLICITORS: David H Cohen & Co (Resp - Nguyen) Patricia White & Associates (Resp - Cannistra)

IN THE COURT OF CRIMINAL APPEAL 2006/2044 2006/2050

McCLELLAN CJ at CL HIDDEN J HISLOP J

MONDAY 4 DECEMBER 2006 REGINA v NGUYEN, Thi Ha REGINA v CANNISTRA, Vincenzo Judgment 1 McCLELLAN CJ at CL: The respondents, Vincenzo Cannistra and Thi Ha Nguyen ("Ha") each pleaded guilt to one count of knowingly taking part in the cultivation of 30,051 cannabis plants, which was not less than the large commercial quantity, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for this offence is imprisonment for 20 years or a fine of 5,000 penalty units or both (s 33(3)(b) of the Drug Misuse and Trafficking Act 1985 (NSW). The pleas were entered on 5 July 2005 the day after the day listed for trial. 2 Each of the respondents asked the court to take into account a further offence included on a Form 1 of cultivating a large commercial quantity of cannabis. That offence was committed at the same location between 22 August 2002 and 1 May 2003. 3 On 30 June 2006, after taking into account the Form 1 matter, the sentencing judge sentenced the respondent Cannistra to a non-parole period of 4 years and 9 months to commence on 29 January 2004 and to expire on 28 October 2008 with a balance of term of 2 years and 6 months to expire on 28 April 2011. 4 His Honour, after taking into account the Form 1 matter, sentenced the respondent Ha to a non-parole period of 5 years and 2 months to commence on 29 January 2004 and to expire on 28 March 2009 with a balance of term of 3 years to expire on 28 March 2012. 5 The Crown appeals both sentences and submits that they were excessively lenient. 6 The respondent Cannistra provided assistance to authorities which they considered to be relevant and useful and the sentencing judge allowed a discount of 40% for that assistance. His Honour allowed a discount of 15% for the utilitarian value of the late plea, and rounded the combined discount to 50%. 7 The respondent Cannistra had no record of previous convictions, other than a Gaming Act offence. His Honour stated that, but for Cannistra's plea of guilty and assistance to authorities, he would have received a head sentence of fourteen years and six months imprisonment. His Honour found special circumstances due to ill health, the fact of it being his first time in custody, and his good prospects for rehabilitation. 8 The respondent Ha had also given assistance to authorities which may have required her to give evidence in forfeiture proceedings against the estate of a deceased person. His Honour noted that such assistance would not qualify her for a discount under s 23 of the Crimes (Sentencing Procedure) Act, but allowed a discount of 15% pursuant to the common law. His Honour also allowed a discount of 15% for her late plea of guilty, giving a total discount of 30%. 9 The respondent Ha had no prior convictions. His Honour said, but for her plea of guilty and assistance, he would have given her a sentence of eleven years and nine months. His Honour found special circumstances in respect of Ha because this would be her first time in custody and it was her first offence. His Honour found she had good prospects for rehabilitation. 10 A Notice of Appeal was signed by the Deputy Director of Public Prosecutions in respect of both respondents on 24 August 2006 and it was served on the respondents Cannistra and Ha on 25 August 2006 and 26 August 2006 respectively.

Sentences imposed on Co-offenders: 11 There were a number of other persons involved in this large scale criminal enterprise, some of whom have been convicted and sentenced. Although the Crown initially argued that the inadequacy of the respondents' sentences could be identified by consideration of the sentences of these co-offenders this argument was not ultimately pursued. Accordingly, it is not necessary to record their sentences in these reasons.

Brief statement of facts 12 Around 12 April 2003 the police received information that a quantity of cannabis and a large amount of cash was being kept at premises at 2 Albion Close, Bossley Park. They were informed that the source of the cannabis was a large cultivation at an unknown location near Dubbo. 13 Acting on this information the police obtained and executed a search warrant at 2 Albion Close, Bossley Park on 13 April 2003. The premises were occupied by the respondent Cannistra and his family. During the search the police found some cannabis leaf, and vacuum sealing equipment. No charges were laid. 14 On 14 April 2003 the police received information that the cannabis and money had been moved to 319 Polding Street, Smithfield before the search warrant was executed at 2 Albion Close. 15 The police obtained and executed a search warrant at 319 Polding Street, Smithfield, which were premises occupied by the respondent Ha. Those present at the time of the search were Ha and eight others, including a man named lonel (John) Simon and another Nazzereno Foti (Mimo). During the search a small quantity of cannabis was found in the house and $6,885 cash was also found. No charges were laid, but the police continued to investigate the activities of the respondents. 16 From about October 2003, police commenced covert surveillance of the respondents. 17 The investigative steps included obtaining telephone intercept warrants and aerial reconnaissance on 6 January 2004 of a property named "Freshfields" at Gilgandra Road, Mendorran. 18 On 14 January 2004 police covertly entered the property and observed, photographed and video recorded images of an extensive cultivation of cannabis plants being attended to by a group workers under the direction of the respondent Cannistra. 19 On 29 January 2004 police executed a search warrant at the property and found a plantation of over 30,000 cannabis plants estimated to be worth about $58,000,000.00 growing at three crop sites. 20 The respondents were arrested together with other co-offenders, namely, George Kassas, Cuu Nguyen, Duong Van Nguyen, Van Huy Nguyen, Viet Quynh Truong, Quang Trung Nguyen, Bao Nguyen, Dinh Van Do, Dinh Them Nguyen. 21 The materials uncovered by the investigation disclosed that the extensive cultivation detected by police in January 2004 was the second of two cultivations. The first having been cultivated from about August 2002 and harvested by May 2003 (Form 1 matter).

Subjective Features of the respondents: 22 The respondent Cannistra was born in late October of 1941 and, when sentenced, was approaching his 65th birthday. He arrived in Australia in 1962. Despite his apparent relationship with Ha Nguyen, it seems that he still had the support of his wife and family. His wife has suffered and continues to suffer from serious physical ailments. 23 He was educated to primary school level in Italy and had been self-employed throughout most of his working life. He built up a successful concreting business with his brother and his net share of the proceeds of sale of that business was over one million dollars. Within the prison system he is regarded as hard working and reliable. 24 He told the Probation and Parole officer that at the time of his arrest he was four hundred and forty thousand dollars in debt. 25 In 1993 he was diagnosed with bowel cancer and urgent surgery was performed. In 1995, the prognosis worsened and the cancer had returned. A second operation was performed on him. He was later diagnosed with a major depressive disorder. 26 Ha Nguyen was born in October 1979 and was 25 years old at the time of sentence. She migrated to Australia in 1990. She has two children aged nine and five respectively. She separated from her husband in 1999 and formed a relationship with the respondent Cannistra in 2002. 27 She was educated to primary school level in Vietnam. She claims that she had been abandoned by her parents when she was ten years old and raped by her brother-in-law three times when she was under fourteen. At sixteen she married a violent man who had already raped her three times in their courting period. The sentencing judge found that she had experienced substantial emotional trauma during her life. She has had periods of depression and suicidal ideation.

Roles played by the respondents in the cultivation. 28 A Crown Case Statement was tendered in respect of each respondent on the sentencing proceedings. The following is a summary drawn from the statement. The initial discussion is in relation to the matter on the Form 1. 29 The investigation established that the respondent Cannistra and a man named lonel Simon (John) negotiated the purchase of the property called "Freshfields". On 23 August 2002, lonel signed a contract with the co-owner, Elias Kazzi, stipulating an option to purchase with a deposit of $25,000 and a lease at $14,400 per annum for the use of the property until the completion of the purchase. 30 About the middle of November 2002 the respondent Cannistra was told that lonel did not pay the deposit as required. Cannistra undertook to take over the property and provided a cheque as the deposit and paid $1,000 in cash as the lease rental. 31 Around December 2002, the respondent Cannistra asked Kazzi for the return of a part of the deposit to be used to construct a shed and bought materials for its construction. 32 When the respondent Cannistra took control of the property at "Freshfields", he bought irrigation equipment and set up an irrigation system for the cultivation of the cannabis plants. He paid for the equipment partly in cash, and $2,225 by cheque drawn on an account held by him and his wife. 33 The records maintained by Country Energy showed that on 26 November 2002, electricity supply at the property had been upgraded to "three phase" at a cost of $18,704 which was paid for by cheque drawn on an account held by the respondent Cannistra and his wife. 34 Van Huy Nguyen, one of the co-offenders, accepted an offer by Ha around August 2002 to work on a farm growing cannabis plants for a wage of $100,000. Both respondents took Huy in a car to the property and he spent the next couple of days cleaning up the house and yard under the instruction of the respondent Ha Nguyen. Huy worked for the next 2-3 months with the respondents and other workers clearing two sites with a tractor, and also digging holes and erecting fences with other workers, under the direction of the respondent Cannistra. 35 In November 2002 Huy, the respondents, and the other workers planted about 12,000 cannabis plants in the two cleared sites. All the workers, including the respondents, did the watering. Around December 2002 a shed was constructed for the purpose of housing the workers and drying of the crop after harvest. Cannistra purchased the materials for construction of the shed. 36 In November 2002 the respondent Cannistra set up an irrigation system, the materials for which were purchased by him. In about March 2003 workers were recruited for the harvest. Cannistra directed the workers, and the respondent Ha supervised the processing of the plants. Both respondents urged the workers to work harder with promises of a bonus as an incentive. The wages of $400 per day would be increased to $550 per day for 3 hours overtime. 37 The respondent Cannistra packed the dried cannabis into foam boxes or plastic bags and took it from the property in a utility. Huy returned to Sydney and was asked by the respondent Ha to return to the property, but he refused as he had not been paid. About June 2003 the respondent Cannistra commenced to pay him by monthly instalments of $20,000, then $40,000 and $30,000. 38 The other workers were paid by the respondents, who brought eight bundles of cash containing $9,300 each to the property for that purpose. 39 In August 2003 the respondents Cannistra and Ha negotiated with the owner of the property to take an option to purchase the property for $500,000, with Cannistra providing a deposit of $30,000 and paying 6 months rent in advance. The respondents came to an arrangement with the co-offender Quang Trung Nguyen that his name would go on the lease in return for an extra payment, and that the utility used on the property would also be transferred to his name. The respondent Ha paid the transfer fee and the transfer was effected from 26 October 2003. 40 Van Huy Nguyen was again offered work on the property around September 2003 by the respondent Cannistra. When he got to the property he was accommodated in the shed with the other workers, whilst the respondents lived in the house. From his conversations with other workers Huy learned that they were all to be paid $100,000 for their work on the cultivation and harvest of the crop. 41 Cannistra had a new pump installed to enable irrigation from the river, and paid a total of $4,500 in cash. The old holes from the first sites were used, in addition to new sites for the second crop. Again, Cannistra used a tractor to clear sites and dig holes, and issued the instructions that were translated by Huy when necessary. More items for the irrigation were purchased by the respondents who paid out almost $6,000 in cash for them. 42 Cannistra showed the workers how to plant the crop, and both respondents took part in the planting, tending and cultivation. The respondent Ha kept a tally of work done. Police covert observations were commenced during this time and both respondents were observed actively working with the co-offenders, and Cannistra was observed driving tractors and issuing orders. Cannistra was found by the sentencing judge to have a major role in the enterprise. It is apparent that he anticipated sharing in any profit. His Honour found that he was a central figure in the onsite activities and I am satisfied he was at least one of the controlling minds if not the controlling mind of the project. 43 Ha's role in the enterprise was more limited. She was to be paid $100,000. Her role was confined to recruiting labourers and carrying out tasks under Cannistra's direction to facilitate the enterprise. She was more than a mere worker although performing a role significantly less than that of a principal.

Assistance to the authorities 44 Both respondents have given assistance to the authorities. The sentencing judge found that assistance to be of the highest order ensuring that Cannistra will need protection within the prison system for a significant period. Although of a lesser order Ha's assistance was found to be significant. The Crown does not challenge the findings and does not seek to disturb the discount which the sentencing judge determined to be appropriate for both respondents.

The appeal 45 The ground of appeal notified by the deputy Director of Public Prosecutions is that the sentence imposed by his Honour Judge Nicholson on each of the respondents is manifestly inadequate. 46 I have already mentioned that the Crown accepts that in each case the discount which the sentencing judge gave with respect to cooperation with the authorities was appropriate. There is no challenge to the discount which the sentencing judge determined for the guilty pleas. However, it submitted that the starting point of the sentence in each case was excessively low, leading to error in the sentence which was ultimately imposed. 47 The Crown emphasised that the cannabis plantation was one of the largest ever seized by police with over 30,000 plants estimated to be worth $58,000,000 growing at three sites on the property. The Crown accepted that the mere quantity of prohibited plants may not be the sole, or even the principal determinate for sentencing in relation to drug offences. However, it was submitted that it is relevant and, together with the role of the offender and the level of his or her participation in the offence, is an important factor in determining the appropriate sentence. The Crown emphasised that in relation to a charge of cultivation contrary to New South Wales law a gradation of seriousness has been provided with an increase in penalty depending upon whether the quantity is a commercial quantity or a large commercial quantity: R v MacDonnell (2002) NSWCCA 34 at [33]. It was accepted that when plants have been seized before being harvested it is the value of the profit sought to be made and not the value of the plant at the time of harvest that is relevant to sentence R v Barbara (unreported, NSWCCA, 24 February 1997) at [7]. 48 It was submitted by the Crown that both respondents were involved in the cultivation of the first crop being the matter included on the Form 1. It was emphasised that the matter on the Form 1 was an offence of the same seriousness as that for which both respondents were sentenced, carrying a maximum penalty of twenty years. This was not the usual position with respect to matters on a Form 1, which are usually lesser offences. The principles relevant to determining the appropriate additional term for matters on a Form 1 were laid out by Spigelman CJ in Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 137 A Crim R 180 at [39]-[45]. 49 Having regard to the fact that Cannistra was responsible for managing the agricultural enterprise and was a principal who would share in any profit, and having regard to the size of the project, the Crown submitted that the starting point for his sentence should have been the maximum sentence provided by the Parliament. Although others may have been involved in the removal of the final product and may have shared in the profits Cannistra was the effective mind of the venture for which he was being sentenced. 50 In relation to the respondent Ha the Crown emphasised that she recruited workers, translated directions from Cannistra and did some of the physical work. She oversaw the packaging and drying of the first cannabis crop and carried out other tasks at the direction of Cannistra in relation to the second crop. She was in many respects Cannistra's partner in the venture, although not sharing in the profits. 51 The Crown recognised that the role played by an interpreter in assisting a principal in a drug hierachy was discussed in R v Le (Lieu Thi) [1999] NSWCCA 146. In that appeal Grove J commented that the essential contribution of communications between two intending participants in a criminal enterprise was not minimal. Dealing in illicit drugs can only be achieved by the contributions of many people and although the contribution of some may be small, it may be essential to the achievement of the overall criminal objective.

Discussion of the appeal 52 This Court has on many occasions taken care to emphasise the principles governing Crown appeals. I have provided a summary of them in R v MD, BM, NA, JT [2005] NSWCCA 342. Although the Chief Justice emphasised in R v Baker [2000] NSWCCA 85 that Crown appeals should be rare, there are occasions when the sentence imposed is so inadequate that intervention by this Court is inevitable. 53 In the present case the criminal enterprise on the Form 1 was sophisticated and involved a large quantity of cannabis. In my opinion, these features mean that it may have been appropriate (depending on other matters) to describe it as being close to the worst class of case. However, I am satisfied that the offence for which the respondents were sentenced justifies that description. The size of the agricultural enterprise and the necessary commercial activity to dispose of the marijuana crop required the sentencing judge to consider whether or not the maximum penalty may be appropriate. 54 Although in former years some people accepted marijuana as a "recreational drug" and believed that it did not have the addictive qualities and potential to damage the health of users which can occur with "hard drugs", this assumption has more recently been called into serious question. It is now recognised that marijuana can have very serious consequences for users with destructive potential for the lives of young persons. The legislature has recognised this damaging potential by providing a maximum penalty of twenty years for the present offence. When an enterprise thirty times larger than the minimum number of plants which constitutes the offence is identified the principals must anticipate that, unless there are significant mitigating factors, the maximum penalty will be imposed. 55 In the present cases the Crown accepts that in relation to both respondents the discounts for cooperation and the pleas of guilty determined by the trial judge were appropriate. The Crown also accepts that in relation to both respondents his Honour's finding of special circumstances was also appropriate. 56 With respect to Cannistra his involvement was as a principal; the enterprise for which the respondents were sentenced was instigated by him; he invested monies in its development and expected to share in the profits. In my opinion these matters together with the matter on the Form 1 required the sentencing judge to consider whether to take the maximum penalty as the starting point when considering the appropriate sentence. 57 But for the matters of cooperation and the plea of guilty I believe that in relation to the respondent Cannistra a head sentence of twenty years would have been appropriate. In my view this was the case notwithstanding the subjective matters which his Honour identified. 58 However, it is necessary when resentencing Cannistra to have regard to the fact that this is a Crown appeal. For that reason the appropriate starting point should fall below the maximum and in my opinion should be eighteen years. Allowing a fifty percent discount the appropriate total sentence would be one of nine years. If I preserve the ratio which his Honour provided having regard to the finding of special circumstances the appropriate non-parole period is five years and ten months with a balance of term of three years and two months. 59 In relation to the respondent Ha her role in the offence was significant although of a lower order than that of Cannistra. Her subjective circumstances indicate that she became involved in the enterprise for personal gain but also because of her desire to assist Cannistra. Her role was greater than that of a labourer. 60 But for the fact that this is a Crown appeal I would have been inclined to impose a sentence which reflected a higher starting point than the eleven years and nine months determined by the sentencing judge. An appropriate starting point would have been fourteen years which would have provided a head sentence of nine years and eight months. The sentencing judge determined to impose a head sentence of eight years and two months. Although the difference could not be described as insignificant because this is a Crown appeal an increase in Ha's sentence by an amount which allows an appropriate discount for that fact would not result in a sentence which would justify upholding the Crown appeal. In my opinion the appeal in relation to Ha should be dismissed.

Orders 61 In my opinion the appropriate orders are in relation to the respondent Cannistra:

Uphold Crown appeal. 2. Quash the sentence imposed and in lieu thereof impose the following sentence: (i) A non-parole period of five years and ten months to commence on 29 January 2004 and to expire on 28 November 2009 with a balance of term of three years and two months to expire 28 January 2013. 62 In relation to the respondent Ha the appeal is dismissed. 63 HIDDEN J: I agree with McClellan CJ at CL. 64 HISLOP J: I agree with McClellan CJ at CL. **********

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