Thanh NGUYEN v R

Judgment 1McCLELLAN CJ at CL: I agree with Hoeben J. 2HOEBEN J: Offence and sentence On 23 August 2010 the applicant was sentenced in the District Court at Parramatta for the offence of cultivating not less than a commercial quantity of prohibited plants (168 plants) by enhanced indoor means contrary to s23(2)(a) of the Drug Misuse and Trafficking Act 1985. This offence carried a maximum sentence of imprisonment for 15 years. No standard non-parole period applied. 3His Honour was asked to take into account on a Form 1 an offence of dealing with electricity without authority contrary to s64(1) of the Electricity Supply Act 1995. That offence carried a maximum penalty of imprisonment for 5 years. 4His Honour was also asked to deal with a related offence on a s166 certificate, i.e. being found on drug premises contrary to s36X(1)(a) of the Drug Misuse and Trafficking Act 1985. 5The applicant was sentenced to a term of imprisonment with a non-parole period of 2 years and 6 months, commencing 5 November 2009 and expiring 4 May 2012 and a balance of term of 1 year and 6 months expiring 4 November 2013. In relation to the s36X(1)(a) offence, his Honour imposed no penalty pursuant to s10A of the Crimes (Sentencing Procedure) Act 1999. His Honour did so in the light of the sentence imposed for the major offence. 6The applicant seeks leave to appeal from that sentence on the following grounds: Ground 1 - Sentencing Judge erred in his findings as to the role of the applicant. Ground 2 - Sentencing Judge erred in: (a) Determining that the offence was a midrange offence and sentencing on that basis; (b) Attaching undue weight to the quantity of the plants. Ground 3 - The sentence was unduly harsh and severe. Factual Background 7His Honour had before him a statement of agreed facts. This included extracts from the applicant's ERISP. The applicant did not give evidence in the sentencing proceedings. 8On 5 November 2009 the police executed a search warrant in respect of premises in Tangerine Street, Fairfield. The premises comprised a single storey, brick dwelling bordered by a steel fence with a roller gate. The fence was locked and the windows to the property were covered by roller shutters. There was a large shed at the rear of the property. 9Before entering the premises, the police knocked on the front door and shouted out to announce who they were and the purpose of their attendance. The applicant was observed through the glass of the rear exit door and after some hesitation, opened that door. He told police that there was no-one else at the premises and when asked if there was anything illegal in the premises he said "I don't know". 10When police entered the house they located a set of keys on a table in the lounge-room. The applicant said that the keys belonged to him. When he was asked if any of the keys opened the shed door, he replied "I don't know". Police later discovered that the keys fitted the locks to the front door and the shed. 11When police walked through the premises, including the shed, they found a seedling tray containing 32 cannabis plants in one of the bedrooms. Inside the shed they discovered a sophisticated hydroponic setup spread over two rooms. A third room contained chemicals, power-boards and transformers. The cannabis plants located in the two rooms were in various stages of maturity, all growing in pots under lampshades with attached globes. The pot plants had PVC piping attached for automatic watering. The police noticed that the plants appeared to have been recently watered. The police also noticed that a ventilation system had been installed using extraction fans and charcoal filters. 12In one of the rooms the police found Centrelink documents in the name of "Tony Nguyen" and prescription medication in the same name. In the same room in which the seedling tray was found, the police also found a wallet containing identification in the name of "Thanh Nguyen" and the passport of Thanh Nguyen. The police also found two thermometers on the top shelf of the wardrobe where the wallet and passport were found. The applicant's fingerprints were located on one of those thermometers and on the seedling tray. A total of 168 cannabis plants were located at Tangerine Street. 13Police located a Residential Tenancy Agreement between The Tong Truong (the owner of the Tangerine Street premises) and the applicant. The tenancy agreement allowed the applicant to lease the property from 1 May 2008 until 1 April 2010. When the owner of the property was contacted by police, he confirmed that the applicant had leased the property in 2008. 14Initially the applicant made no admissions but when confronted with the lease agreement said that the lease was signed before he went to Vietnam, that he had resided at Tangerine Street for about two months and then returned to other premises in Marrickville, after which he went to Vietnam and then came back to Tangerine Street. Investigations showed that the applicant was in Vietnam in September/October 2009. The applicant denied looking in the wardrobe of the room where the wallet and the seedling tray were located. He told the police that he was also known as "Tony Nguyen". 15When an employee of Integral Energy attended the premises at Tangerine Street and observed the illegal electrical connections, he estimated that the electricity used but not paid for was in the vicinity of $19,000. 16In his ERISP the applicant said that he had only moved into the house five days before the police executed the search warrant. 17The applicant pleaded guilty to the principal offence in the Local Court and his Honour accepted that the plea had been entered at the earliest opportunity. Remarks on sentence 18Because of the early plea of guilty, his Honour reduced the sentence by 25 percent to reflect the utility of the plea. His Honour noted that he needed to take into account the Form 1 offence when considering deterrence and retribution. 19Because of the applicant's evasiveness when questioned by the police, his Honour was not satisfied that the applicant had acknowledged the harm of the offence and was not persuaded that the applicant was genuinely remorseful. 20Apart from the applicant's criminal history, there was no evidence before the Court about his subjective background. Further information was only provided by way of submissions from the bar table. 21In relation to the applicant's subjective case, he was born in Vietnam and was aged 36 at the time of sentencing. He had two brothers living in Sydney. He himself first came to Australia as a tourist in 1991 and later married in Australia in 1994. The marriage ended about three years later. More recently he married again while in Vietnam in 2009 and his wife remained in that country. 22He completed the equivalent of year 11, leaving school at the age of 16. In Australia he worked at a number of unskilled jobs, but was in receipt of Centrelink benefits at the time of his arrest. There was no evidence that he suffered from any mental health issues or intellectual disability. 23Because of his prior criminal record, which included dishonesty and traffic offences, together with three offences for the possession of drugs in 1998, 2000 and 2002, his Honour was not prepared to regard him as a person of prior good character. 24At the time of sentencing the applicant was taking methadone. He had hepatitis C and was taking medication to treat this. 25In relation to the offence, his Honour noted that the number of plants involved was over three times the commercial quantity which was 50 plants and was approximately 84 percent of a large commercial quantity. His Honour inferred from the varying sizes of the plants that this was an ongoing venture. His Honour noted that the estimate by the police as to the street value of the cannabis was in excess of $500,000. 26Apart from the plea of guilty, his Honour found that the applicant was living at the house at the time of his arrest. Having regard to his presence in the house, his possession of the keys, his being the tenant, his fingerprint on the thermostat found in the wardrobe near the seedlings and his fingerprint on the seedling tray, his Honour concluded that the applicant was actively involved in the offence. 27His Honour noted that there was no evidence, other than what the applicant said in the ERISP, to support the proposition that he was not living at the house of which he was the tenant. His Honour concluded that as the tenant, he must have played some part in setting up the property for the cultivation or had permitted others to do so. 28His Honour concluded "Whilst the evidence does not permit the Court to determine the exact nature of or extent of his role in the plantation", the circumstances satisfied him beyond a reasonable doubt that the applicant was a major player in the cultivation and not just a labourer or worker. 29In the absence of any evidence to the contrary, his Honour concluded that greed motivated the applicant's involvement in the project. His Honour concluded that the offence was premeditated and that the applicant must have appreciated that by becoming involved in it, he had enmeshed himself in organised criminal activity. His Honour assessed the offence "as a midrange offence". 30In the absence of any evidence, his Honour found it almost impossible to make a reliable determination of the applicant's rehabilitation prospects and the prospects of him not re-offending. Somewhat generously, his Honour found that those prospects were "reasonable". Appeal Ground 1 - Sentencing Judge erred in his findings as to the role of the applicant. 31The applicant submitted that it was not open to his Honour to find that the applicant was "a major player in the cultivation and not just a labourer or worker" and that "as a tenant he must have played some role in setting up the property for cultivation or had permitted others to do so". In that regard the applicant noted that the charge to which he had pleaded guilty was only with respect to cultivation on 5 November 2009 when the police found him on the premises. The applicant referred to what he had told the police in his statement about not being present on the property very often. 32The evidence before his Honour was mostly circumstantial. Little reliance could be placed on what the applicant said in his ERISP since to the extent that those assertions could be checked, they were found to be false. It was well open to his Honour to treat the denials by the applicant in that statement with scepticism. 33What the applicant's submissions fail to have regard to is the legal effect of him being the tenant. As such he had the immediate right to possession of the premises. Anyone using the premises would as a matter of law, have required his permission. It was also not without significance that the lease period commenced 1 May 2008. 34The indoor cultivation system which the police discovered was a sophisticated one. Significantly the police found that the plants had been recently watered and when they arrived the only person present on the premises was the applicant. It was well open to his Honour to find that the applicant had permitted other persons to set up the property for cultivation if he himself had not set it up. 35His Honour's finding that the applicant "was a major player" needs to be looked in the context of the whole statement. In reaching that conclusion, his Honour contrasted the position of the applicant with that of "just a labourer or worker". Once again such a finding was well open to his Honour given the applicant's position as the tenant and because his personal documents were found in two rooms in the house. Importantly, his passport and wallet were found in the same room as the tray of 32 cannabis seedlings which were being grown under fluorescent lights. The fact that his fingerprints were found on one of the thermometers and on the seedling tray, allowed an inference to be drawn that he played an active part in the illegal enterprise. 36Although the charge referred only to the date of 5 November 2009, it was open to his Honour to find that this was an ongoing operation. He was able to do so on the basis of the sophisticated setup in all the rooms of the house and in the shed. He could also have regard to the number of plants and the fact that they were at various stages of maturity and included seedlings. The fact that his Honour also found that others must have been involved at some stage in the illegal enterprise, did not exclude the applicant from being a major player. On all the evidence it was open to his Honour to make such a finding. Ground 2 - The Sentencing Judge erred in: (a) Determining that the offence was a midrange offence and sentencing on that basis; (b) Attaching undue weight to the quantity of the plants. 37The applicant submitted that when his Honour said "In the Court's view this offence is a midrange offence" his Honour erred. It was submitted that such language was only appropriate for offences which involved a standard non-parole period. It was submitted that to make such a finding would inevitably involve the sentencing judge in a "two step" approach to sentencing by dividing the "instinctive synthesis into a decision on the objective seriousness of the offence followed by a consideration of the subjective circumstances of the offender". 38The applicant clearly had in mind the observations of Howie AJ in Georgopolous v R [2010] NSWCCA 246 at [32] where his Honour said: "32 Further, it seems to me that the course adopted by the Conlon DCJ leads to a "two-step" approach to sentencing by dividing the "instinctive synthesis" into a decision on the objective seriousness of the offence followed by a consideration of the subjective circumstances of the offender: cf Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [35] to [39]. In a case where a standard non-parole period applies the court is forced by the terms of the legislation to engage in a stepped approach to sentencing involving, as the first step, a consideration of the objective seriousness of the offence followed then by a consideration of the matters in s 21A: see MLP v R [2006] NSWCCA 271; 164 A Crim R 93. But where that legislation does not apply, a court should avoid embarking upon an independent and detailed analysis of objective seriousness." 39That observation by Howie AJ needs to be read with what his Honour said at [30] in the same case. There his Honour said: "30 Because the offence did not carry a standard non-parole period, it was unnecessary for his Honour to embark upon a detailed finding as to where the offence lay in relation to a mid range of objective seriousness for an offence of this type. It is likely to lead to confusion and misinterpretation when the offence does not carry a standard non-parole period." 40Taking those two paragraphs together does not lead to a conclusion that his Honour was going so far as to say that it was erroneous to express an opinion as to the seriousness or otherwise of an offence. What his Honour was saying was that it was unnecessary and involved a risk of offending the principles set out in Markarian . 41The distinction which Howie AJ was seeking to draw in Georgopolous is best set out by McClellan CJ at CL in Sivell v R [2009] NSWCCA 286 where his Honour contrasted the two modes of expression whereby a sentencing judge may indicate the seriousness of an offence or offences under consideration. "2 The sentencing judge described the offence as lying in the mid range of "objective seriousness" but toward the lower end of that range. In so doing the language used by her Honour was that which is appropriate when sentencing for an offence which attracts a sentence which includes a standard non-parole period. The present offence does not attract a standard non-parole period. 3 Although a sentencing judge must always identify the seriousness of the offence, caution should be exercised when using language relevant to an offence which attracts a standard non-parole period. The relevant principles were discussed by this Court in R v Way (2004) NSWCCA 131; 60 NSWLR 168: see also R v AJP (2004) NSWCCA 434; (2004) 150 A Crim R 575. 4 When assessing where an offence lies in the range of objective seriousness when the offence attracts a standard non-parole period it is important to put aside considerations that do not have a nexus with its commission: Way [99]. Identifying whether an offence falls within the mid range of objective seriousness or otherwise is necessary so that appropriate consideration can be given to the standard non-parole period provided by the statute. The "objective seriousness" of the offence is of relevance only to the non-parole period to be imposed. 5 The "objective seriousness" of an offence is a different concept to the "seriousness of the offence", the latter expression being commonly used when determining the sentence, both total term and non-parole period (if appropriate) for that offence. Where a standard non-parole period is not provided for an offence, the objective seriousness of the offence does not, of itself, direct attention to any particular type of punishment or term of imprisonment which must both be determined after all of the relevant matters, both objective and subjective, which inform the seriousness of the offence have been considered." 42It is significant that the expression used by his Honour on this occasion was not couched in the terminology of standard non-parole periods. His Honour simply observed (correctly in my opinion) that this was a midrange offence. His Honour expressed this opinion after having analysed the objective and subjective features of the offence and was clearly assessing the "seriousness of the offence" as described by McClellan CJ at CL in [5] of Sivell as set out. 43Taking into account the circumstances of the offence, together with the applicant's extraordinarily weak subjective case, it was well open to his Honour to make such an assessment. No error has been made out. 44In relation to the quantity of plants, his Honour did no more than to have regard as part of his overall assessment of the seriousness of the offence, to the number of plants and their stage of development. This was a relevant circumstance to be taken into account by his Honour. In context, however, it was simply one factor out of many which his Honour took into account in reaching his assessment as to the overall seriousness of the offence. Ground 3 - The sentence was unduly harsh and severe. 45In support of this submission, the applicant relied upon a schedule of what was described as "comparative cases" from both the District Court and this Court to illustrate that this sentence was a heavy sentence, towards the top of the range. 46An examination of the cases to which the Court was referred would lead one to the conclusion that the sentence imposed by his Honour was towards the upper end of the range, if one took as the only determinant of the range, the 33 cases which were summarized on the schedule. 47An initial difficulty with the approach of the applicant is that when assessing the proper sentencing range, an important consideration is the maximum sentence for the offence. In this case that was imprisonment for 15 years. The applicant's submissions paid no regard to that important start point. 48The other difficulty is that, of their very nature, statistics even where particular aspects have been extracted and included on a schedule such as was before the Court, only provide a partial picture of the facts of the case. There is little or no information about the accused's subjective case nor is there a full statement of the important facts of the case,. With particular relevance to this case, there is no indication of whether any Form 1 matters were taken into account. 49When assessing whether a sentence is manifestly excessive, the test remains as set out by Garling J in Fogg v R [2011] NSWCCA 1 at [59] - [60]: "59 ... but for many offences culpability varies over so wide a range that the statistics are of limited utility for a particular case ... 60 ... I accept that the statistics referred to demonstrate that the sentence in this case falls at the high end of the range of sentences imposed for the offence. But the question remains whether it falls within the range of the permissible exercise of the sentencing judge's discretion." 50As this Court has said on a number of occasions, undue weight should not be given to sentencing statistics. This is because of the "vast range of factors relevant to sentencing for such an offence" (RA Hulme J in Furia v R [2010] NSWCCA 326). The large number of variables is simply not reflected in mere statistical figures and percentages. 51What is important when considering a particular sentence are the specific findings as to the seriousness of the offence and the culpability of the offender. These are the considerations which are determinative when assessing whether a particular sentence is manifestly excessive, rather than a comparison of the sentence with statistics ( Holloway v R [2011] NSWCCA 23 at [85]). The critical question is whether the sentence imposed was appropriate for the particular case ( R v F (2002) 132 A Crim R 308, adopted in Ayoub, Omran v R; El Masri, Ali v R [2010] NSWCCA 196 at [58]). 52Important matters which his Honour took into account in this case were the part played by the applicant in the commission of the offence, and the seriousness of the offence taking into account its factual background and the absence of any kind of compelling subjective case. These are important matters which were given appropriate weight by his Honour. Finally, his Honour had to give some effect to the Form 1 offence ( Attorney General's Application under s37 of Crimes (Sentencing Procedure) Act 1999 [2002] NSWCCA 518, (2002) 56 NSWLR 146). 53Even on the schedule of cases provided to the Court in support of this submission, it is clear that the sentence passed by his Honour was not only open to him but was within the range of sentences for offences of this kind. 54Error of the kind asserted has not been made out. Conclusion 55The orders which I propose are as follows: (i) Leave to appeal be granted. (ii) That the appeal be dismissed. 56GROVE AJ: I agree with Hoeben J.