Tran v R - [2018] NSWCCA 220 - NSWCCA 2018 case summary — Zoe

NSWNSWCCA

Tran v R

[2018] NSWCCA 220

Court of Criminal Appeal (NSW)|2018-02-28|Before: Hoeben CJ, Johnson J, Adams J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2018-02-28

Before

Hoeben CJ, Johnson J, Adams J

Catchwords

[2013] NSWCCA 115 Brennan v R [2018] NSWCCA 22 Cherdchoochatri (2013) 277 FLR 126
[2013] NSWCCA 118 Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 Clarke v R (2015) 254 A Crim R 150
[2018] HCA 32 Filippou v The Queen (2015) 256 CLR 47
[2015] HCA 29 GAS v The Queen (2004) 217 CLR 198

Source

Original judgment source is linked above.

Catchwords

[2013] NSWCCA 115 Brennan v R [2018] NSWCCA 22 Cherdchoochatri (2013) 277 FLR 126[2013] NSWCCA 118 Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 Clarke v R (2015) 254 A Crim R 150[2018] HCA 32 Filippou v The Queen (2015) 256 CLR 47[2015] HCA 29 GAS v The Queen (2004) 217 CLR 198[2004] HCA 22 Hanh Thi Nguyen v R (2011) 208 A Crim R 432[2011] NSWCCA 92 House v The King (1936) 55 CLR 499[1936] HCA 40 JM v R (2014) 246 A Crim R 528[2014] NSWCCA 297 Kresovic v R [2018] NSWCCA 37 Leach v The Queen (2007) 230 CLR 1R v Tran [2011] NSWDC 135 R v Nong [2010] NSWDC 227 R v Simpson (2001) 53 NSWLR 704[2001] NSWCCA 534 R v Tran [2017] NSWDC 397 R v Uzabeaga (2000) 119 A Crim R 452[2000] NSWCCA 381 R v Wei [2014] NSWDC 33 Shortland v R (2013) 224 A Crim R 486[2013] NSWCCA 4 Stock v The Queen (2011) 206 A Crim R 574[2011] NSWCCA 49 The Queen v Olbrich (1999) 199 CLR 270[1999] HCA 54 The Queen v Pham (2015) 256 CLR 550

Judgment (12 paragraphs)

[1]

The Applicant's Subjective Circumstances

The Applicant was born in September 1979. He was aged between 33 and 35 years at the time of the offences. He was 37 years old at the time of sentence.
The Applicant has a limited criminal history which records that he appeared at the Bankstown Local Court on 18 December 2013 and was fined for stating a false name or home address as a driver of a motor vehicle. In addition, he was placed on a 12-month bond under s.10 Crimes (Sentencing Procedure) Act 1999 for an offence of driving whilst suspended.
The Applicant did not give evidence at the sentencing hearing.
Presentence reports of Mr Bruce McSoriley, Community Corrections Officer, dated 27 February 2017 and 6 March 2017 were tendered at the sentencing hearing. A report of Mr Bradley Jones, forensic psychologist, dated 1 March 2017 was tendered in the Applicant's case together with a number of character references. Those reports revealed the following features concerning the Applicant and his background.
The Applicant has two children from his first marriage. At the time of his arrest, he was living with the two children and his second wife in premises at Glen Alpine, the location of the Form 1 offences referred to earlier (at [44]-[46]).
According to the presentence report, the Applicant was born and raised in Vietnam. He was the eldest in a family of four children. His parents divorced when he was 10 years old and he was raised by his mother as a sole parent. The Applicant graduated from high school in Vietnam. He remained close to his father who died in 2010.
The Applicant migrated to Australia in 1998 as an overseas student. He became an Australian citizen in 2002. He completed English studies in Australia and undertook a diploma course in finance and banking at TAFE. Whilst studying, he undertook part-time employment as a cleaner, process worker and a kitchen cook. After completing his TAFE studies, the Applicant secured employment in the finance industry and worked as a financial broker for a Sydney firm, after which he purchased a restaurant in Sydney in 2004 before selling it two years later.
The Applicant returned to Vietnam in 2006 where he worked in a family business before returning once again to Australia in 2009. After his return to Sydney, the Applicant worked in real estate brokering.

[2]

The Sentencing Hearing and Remarks on Sentence Course of the Sentencing Hearing

The Applicant was committed for sentence from the Burwood Local Court on 29 August 2016.
The sentencing hearing came before his Honour Judge King SC for the first time on 3 March 2017. Mr James QC appeared for the Applicant. A presentence report had been prepared by Mr McSoriley which was provided to the parties. In light of some material in the presentence report, the Applicant sought an adjournment of the proceedings to allow further information concerning the Applicant to be obtained from overseas. The Crown was ready to proceed and opposed any adjournment of the sentencing hearing. It was determined that the matter could commence before his Honour, with the Crown papers being tendered and the hearing being adjourned part heard until 12 May 2017.
At the commencement of the resumed hearing on 12 May 2017, an updated presentence report of Mr McSoriley was tendered together with the Applicant's criminal history. His Honour raised with the Crown and Senior Counsel for the Applicant a number of issues and concerns with respect to the Statement of Agreed Facts (T9-12, 12 May 2017). In response to an enquiry by the Court, the Crown informed the sentencing Judge that a co-offender (Phuong Nam Pham) had been sentenced by his Honour Judge Norrish QC although the sentencing remarks had not yet been requested (T12, 12 May 2017 ). His Honour then raised what was said in the Agreed Statement of Facts concerning the role of the Applicant with it being made clear that the Court would make its own assessment concerning the Applicant's role and his level of criminality (T13-14, 12 May 2017). Extensive submissions were made on behalf of the Crown and the Applicant before his Honour stood the matter over to 19 May 2017 for sentence.
Mr James QC submitted that the Applicant's offences were not "above mid-range" in relation to the large commercial quantity and commercial quantity offences (T21, 12 May 2017). A little later, Senior Counsel for the Applicant submitted that the Applicant's culpability in each case was "below mid-range" and that a finding of special circumstances should be made (T25, 12 May 2017).
In the course of submissions, the Crown conceded that the Applicant did not visit any of the premises which were the subject of the charges (apart from his own) (T26, 12 May 2017). It was emphasised that the Applicant was subject to conditional liberty at the time of the Lakemba offence (Sequence 2) as a result of the bond imposed on 18 December 2013 (T28, 12 May 2017). The Crown submitted that the Applicant had "an irreplaceable role" as real estate agent for each set of commercial premises and was a principal although he "managed to distance himself from the dirtier side of the criminal organisation" (T30-31, 12 May 2017). The Crown did not submit the Applicant was "the top dog arranging the entire enterprise", but did submit he had a very important role in the enterprise (T31, 12 May 2017).

[3]

Sentencing For Offences of Cultivation of Large Commercial or Commercial Quantities of Prohibited Plants by Enhanced Indoor Means

Before moving to consider the grounds of appeal, it is appropriate to refer to the class of offences for which the Applicant was sentenced.
As the sentencing Judge observed, an examination of past sentencing decisions for offences of this type in this State does not reveal offending of the magnitude of that of the Applicant by reference to the number of premises involved.
The offences for which the Applicant was sentenced were enacted by the Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Act 2006. In the second reading speech with respect to that legislation, Ms Carmel Tebbutt (on behalf of the Attorney General) said (Hansard, Legislative Assembly, 25 May 2006): "In recent years NSW Police have detected a significant increase in the number of hydroponic cannabis operations conducted in domestic dwellings, as well as an increasing tendency for these operations to involve organised crime syndicates. Cannabis plants cultivated by hydroponic and other enhanced indoor means grow much faster than plants grown by traditional outdoor methods, and produce between five and seven times the yield. The current quantity amounts in the Drug Misuse and Trafficking Act at which maximum penalties apply for cannabis cultivation offences are based upon the yield, harvest patterns and profitability of outdoor, or "bush grown" cannabis. They are not an accurate reflection of the commerciality of hydroponic cannabis operations. This bill addresses this inequity."
The Minister continued in the second reading speech: "Schedule 1 amends the Drug Misuse and Trafficking Act 1985. Item [1] inserts in the Act a definition of 'cultivation by enhanced indoor means' in relation to a prohibited plant. The two leading methods of enhanced indoor cannabis cultivation - hydroponics and aeroponics - are covered by the definition. Item [16] inserts a new plant category into schedule 1 of the Act entitled 'Cannabis plant cultivated by enhanced indoor means', with the commercial and large commercial quantities being set at levels five times lower than for outdoor cannabis to reflect the much higher yields produced by this method. This means that existing maximum penalties for cultivation offences involving commercial and large commercial quantities will cut in at these lower levels in respect of cannabis cultivated by enhanced indoor means to reflect the commerciality of operations of this size. The bill makes no change to existing small and indictable cannabis quantities, with current maximum penalties continuing to apply in these cases."

[4]

Ground 5 - Claim that the Applicant was Denied Procedural Fairness

It is appropriate to consider firstly Ground 5, a ground added at the sentencing hearing. Submissions of the Parties
Ms Kluss, counsel for the Applicant, submitted that her client had been denied procedural fairness as the sentencing Judge had not sufficiently placed Senior Counsel for the Applicant on notice with respect to the approach which his Honour took to the factual basis for sentence as adopted in the remarks on sentence. It was submitted that the approach taken by his Honour had effectively reversed the onus of proof in the proceedings so as to require the Applicant to prove that he was not the organiser of the various cultivations or occupied a position at or near the peak of hierarchy of the offenders.
It was submitted that practical injustice had resulted for the Applicant in the way in which the sentencing Judge approached this aspect of fact finding on sentence.
The Crown submitted that there was no procedural unfairness in the manner in which the sentencing Judge determined the factual basis for sentence. It was submitted that the sentencing Judge had made clear that the Court was not bound by an agreement between the parties as to the role of the Applicant and that his Honour was correct in adopting this approach. It was submitted that his Honour gave the Applicant's Senior Counsel an opportunity to address on the issue and that submissions were made in this respect.
The Crown submitted that the Applicant had not lost an opportunity to make submissions to the Court on the aspect raised by the sentencing Judge and that no practical injustice had resulted in this case. The parties had been put on notice by his Honour of the Court's concerns and there was no lost opportunity for the Applicant to make submissions on his role in the various cultivations. Decision
In Nguyen v R [2015] NSWCCA 268, Price J (Hoeben CJ at CL and Button J agreeing) said at [45]-[46]: "45 It is well established that a sentencing judge is not bound to accept agreed facts that are presented to him by the Crown and the defence. A judge's sentencing discretion must be exercised in the public interest. A judge is not obliged to refrain from questioning facts even though they may be agreed: Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 per Kirby at [606]; R v Uzabeaga [2000] NSWCCA 381 [(2000) 119 A Crim R 452)] per Bell J at [34]. 46 When a sentencing judge considers that an offender has a higher degree of culpability than detailed in the agreed facts, the judge, as a matter of procedural fairness, must give the parties an opportunity to address the judge's view: Uzabeaga at [35]-[38]."

[5]

Ground 1 - Claim of Error in Assessment of Objective Criminality of Offending Submissions of the Parties

Ms Kluss submitted in support of this ground that it was unclear at which point his Honour found the objective criminality of the offending, though there could be no doubt from the sentence imposed that his Honour found it to be very high. It was submitted as well that there was no evidence from which to base any finding of the level of offending save for the number of plants, and the number of premises associated with the cultivations as described in the Statement of Agreed Facts.
It was submitted for the Applicant that the fact that no other persons were (at the time of sentencing of the Applicant) identified as being responsible did not elevate his objective criminality to being responsible for the whole of the criminal enterprise. It was submitted that the sentencing Judge appeared to have assessed the Applicant's role as being substantially responsible for the criminal enterprise when this was not the basis of the offending placed before the Court by the Crown and was not supported by the evidence.
The Crown submitted that it was open to the sentencing Judge to find that the objective seriousness of each of the offences approached the mid-range of objective seriousness on the evidence before the Court on sentence. The Crown pointed to the terms of the definitions of "cultivate" in s.3 and "take part in" in s.6 of the Drug Misuse and Trafficking Act 1985 and submitted that the concept of knowingly taking part in the cultivation of cannabis plants covers a wide range of acts.
The Crown submitted that the characterisation of the objective seriousness of the offences was open to the sentencing Judge in this case. Decision
This Court has recognised repeatedly that the characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing Judge: Mulato v R [2006] NSWCCA 282 at [37]. A challenge to a characterisation of the objective seriousness of an offence must be founded upon one of the errors specified in House v The King (1936) 55 CLR 499; [1936] HCA 40: R v Fahda [2013] NSWCCA 86 at [4].
His Honour found that the Applicant's offences approached the mid-range of objective seriousness for each of the large commercial quantity and commercial quantity offences (R v Tran at [63] reproduced at [64] above). His Honour explained his findings with respect to the Glen Alpine property where the Applicant was a principal concerning the crop in his own home.

[6]

Ground 2 - Claim that Insufficient Weight was Given to the Applicant's Subjective Circumstances Submissions of the Parties

It was submitted for the Applicant that the documentary evidence tendered at the sentencing hearing for the Applicant indicated that there were many positive features of his character, work record and his reputation in the community. Counsel submitted that although the sentencing Judge assessed the Applicant as having a low risk of reoffending and reasonable prospects for rehabilitation, these positive findings did not appear to have impacted the sentence.
The Crown submitted that the sentencing Judge identified specifically and considered the Applicant's subjective circumstances in the remarks on sentence and made positive findings with respect to some of them. It was submitted that the Court had regard to these matters in the process of instinctive synthesis and that the weight to be given to these factors was effectively an issue for the sentencing Judge. Decision
This Court is a court of error and, in order to establish a basis for intervention, it is not sufficient for an applicant to assert that a sentencing Judge gave insufficient weight to one factor or another: Zhao v R [2016] NSWCCA 170 at [59]. The circumstances in which matters of weight will justify intervention by this Court are narrowly confined: Vaiusu v R [2017] NSWCCA 71 at [29].
It is apparent from the remarks on sentence that his Honour had regard to the Applicant's subjective circumstances arising from the documentary evidence and made a number of findings favourable to the Applicant after that assessment. The Applicant stood to be sentenced for a significant number of offences of very considerable seriousness involving his conduct in arranging leasing of premises for large commercial quantity cultivation and undertaking commercial cultivation in his own home where he lived with his partner and two children. His Honour had regard to the Applicant's subjective case and made findings which were taken into account on sentence.
It has not been demonstrated that the sentencing Judge gave insufficient weight to the Applicant's subjective circumstances in the determination of sentence in this case.
I would reject the second ground of appeal.

[7]

Ground 3 - Claim of Error in Not Making a Finding of Special Circumstances Submissions of the Parties

Counsel for the Applicant submitted that a finding of special circumstances ought to have been made as this was to be the Applicant's first time in custody and that he would require assistance to address issues identified in the report of Mr Jones, psychologist. In oral submissions, Ms Kluss submitted that Ground 3 may be of greater practical significance if the Court found error and moved to resentence the Applicant.
The Crown submitted that his Honour's finding with respect to special circumstances was a discretionary finding of fact in respect of which the Court would be slow to intervene. It was submitted that the particular aspects relied upon by the Applicant with respect to special circumstances were considered by the sentencing Judge when he addressed issues of the Applicant's first time in custody, family hardship and the Applicant's depression and other disorders and gambling issues. The Crown submitted that it was open to the sentencing Judge to decline to make a finding of special circumstances in this case. Decision
In R v Fidow [2004] NSWCCA 172, Spigelman CJ observed at [22] that simply because there is present in a case a circumstance which is capable of constituting a "special circumstance" does not mean that a sentencing Judge is obliged to vary the statutory proportion referred to in s.44 Crimes (Sentencing Procedure) Act 1999.
As Spigelman CJ observed in R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at 719-720 [73], as a practical matter, there are unlikely to be many cases in which the Court of Criminal Appeal will interfere with respect to a finding concerning special circumstances unless the non-parole period is found to be manifestly inadequate or manifestly excessive. A claim of manifest excess is contained in the fourth ground of appeal to which I will shortly turn.
No error has been demonstrated in the sentencing Judge's approach declining to make a finding of special circumstances in this case.
The Applicant has not made good the third ground of appeal.

[8]

Ground 4 - Claim that the Sentence was Manifestly Excessive Submissions of the Parties

Counsel for the Applicant made submissions in support of this ground by reference to other sentencing decisions and sentencing statistics.
It was submitted for the Applicant that the cases presented by the Crown to the sentencing Judge did present a pattern of sentencing relevant to the individual counts on the indictment and the relative indicative sentences which the Applicant submits points to both the indicative sentences and aggregate sentences being manifestly excessive. Reference was made to Nguyen v R [2009] NSWCCA 283, Phan v R [2010] NSWCCA 8 and Tran v R [2010] NSWCCA 72. It was noted that a sentence of imprisonment for seven years and six months with a non-parole period of five years was passed in Tran v R for an offence of knowingly taking part in the cultivation of a large commercial quantity of cannabis plants by enhanced indoor means, but it was submitted that the offender in that case made admissions that he had set up the operation and tended the plants and intended selling the plants for profit and that he had a prior offence of cultivation on his record.
Counsel for the Applicant submitted that sentencing statistics assisted the Applicant in support of this ground. The Applicant relied upon sentencing statistics from the Judicial Information Research System for large commercial quantity cultivation offences by enhanced indoor means between 2008 and 2017, with 135 cases revealing a range of full terms from 18 months to nine years' imprisonment.
It was submitted for the Applicant that the aggregate sentence was unreasonable or plainly unjust so that the manifest excess ground should be upheld in this case.
The Crown submitted that the comparative cases and the sentencing statistics do not assist the Applicant in this case to make good the ground asserting manifest excess. It was noted that the sentencing Judge considered the cases relied upon at the sentencing hearing before reaching the conclusion that the decisions did not assist in the passing of sentence. The Crown submitted that the decisions relied upon by the Applicant in this Court did not assist to demonstrate a range of sentences in support of a claim of manifest excess.
With respect to sentencing statistics, the Crown submitted that reliance upon bare statistics involving 135 cases with a range of head sentences from 18 months to nine years and with non-parole periods ranging from six months to six years did not assist the Applicant on this appeal. The Crown submitted that, even on the statistics presented, the indicative sentences imposed on the Applicant are within range, albeit at the higher end which is said to be appropriate given the findings made concerning the Applicant's objective criminality.

[9]

With respect to sentencing decisions for this category of offence, a helpful and relatively recent examination of the large commercial quantity cases may be found in the judgment of Garling J in Clarke v R (at [96] above).
It is useful to refer to a number of sentencing decisions which relate to offences involving a single property used for large commercial quantity cultivation by enhanced indoor means. Consideration of the cases referred to in the table does not support the Applicant's claim of manifest excess by reference to the indicative sentences in this case. Case Number of Properties Number of Cannabis Plants Cultivated by Enhanced Indoor Means Head Sentence and Non-Parole Period Nguyen v R [2009] NSWCCA 283 1 suburban property 202 cannabis plants 5 years 7 months NPP 3 years 3 months Tran v R [2010] NSWCCA 72 1 suburban property 210 cannabis plants 7 years 6 months NPP 5 years R v Nong [2010] NSWDC 227 1 suburban property 227 cannabis plants 3 years 4 months NPP 20 months R v Ly [2010] NSWDC 229 1 suburban property 227 cannabis plants 4 years 4 months NPP 2 years 2 months Phan v R [2010] NSWCCA 8 1 suburban property Number of plants not specified 5 years value of crop approx. $500,000.00 NPP 3 years R v LP [2010] NSWCCA 154 1 suburban property 274 cannabis plants 6 years NPP 3 years 6 months Co v R [2011] NSWCCA 148 1 suburban property 266 cannabis plants 7 years 6 months NPP 4 years Hanh Thi Nguyen v R [2011] NSWCCA 92 1 suburban property 317 cannabis plants 6 years 5 months NPP 4 years 9 months Stock v The Queen (2011) 206 A Crim R 574; [2011] NSWCCA 49 1 rural property 335 cannabis plants 9 years NPP 5 years Crawford v R [2013] NSWCCA 269 1 rural property 319 cannabis plants 7 years 6 months NPP 5 years 7 months R v Clarke [2015] 254 A Crim R 150; [2015] NSWCCA 232 1 rural property 1,997 cannabis plants 7 years NPP 4 years Duong: 4 years R v Duong & R v Phan [2016] NSWDC 414 1 suburban property 653 cannabis plants NPP 2 years Phan: 5 years NPP 2.5 years

[10]

Statistics may serve as a yardstick by which a sentencing Judge may assess a proposed sentence and an appellate court may assess a challenge of manifest excess: The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at 565 [47]. This Court has recognised the limitations of bare sentencing statistics which do not provide detailed information as to the circumstances of the offence and the offender so that statistics are, at best, a blunt tool for assessing whether or not a sentence is manifestly excessive. They provide no real assistance to the Applicant in this case.
The Applicant was fortunate that his separate criminality contained in the offences relating to cultivation of a commercial quantity in his own home were placed on a Form 1 to be taken into account on sentence for Sequence 8. The Form 1 cultivation offence exposed the Applicant's children to the cultivation process so that the observations of the Minister in the second reading speech for the 2006 Act (at [76]) are pertinent. In sentencing the Applicant for the Sequence 8 offence, it was necessary for the sentencing Judge to give greater weight to the need for personal deterrence and the community's entitlement to exact retribution for serious offences: Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 at 425-426 [22]. A longer sentence for the Sequence 8 offence would result: Abbas v R at 426 [23]. The sentence for Sequence 8 factored into the aggregate sentence so as to increase it from what would have applied if the Form 1 matters did not exist.
It may be said that the indicative sentences were substantial and the aggregate sentence passed was very substantial. However, to observe that a sentence is "very heavy" when compared to other sentences is not, without more, to conclude that it exceeded the bounds of sentencing discretion: The Queen v Pham at 568 [56]. The Applicant committed offences of a number and magnitude which required the imposition of a very substantial sentence after taking into account all factors relevant to the imposition of sentence, including the Applicant's subjective circumstances.
It is necessary for sentencing courts to give effect to the legislative purpose underpinning the creation of this new class of offence in 2006. As the extracts from the second reading speech for the 2006 Act make clear (at [74]-[78] above), there was a deep concern with respect to the role of organised crime in the commission of offences of this type. Experience in the courts since 2006 has done little to dispel community concern that organised crime remains involved in this class of offending for the purpose of obtaining substantial rewards from criminal activity. Concern has been expressed as to whether sentences passed for this class of offence have given effect to the legislative intention behind the 2006 Act (see [84]ff above). Decisions of the Court of Criminal Appeal have sought to emphasise the legislative purpose concerning this class of offending and it is important for the Court, in determining the present case, to emphasise once again that purpose.

[11]

Conclusion

The Applicant has not succeeded upon any of his grounds of appeal.
I propose that leave to appeal against sentence be allowed but that the appeal be dismissed.
N ADAMS J: I have had the significant advantage of reading the judgment of Johnson J in draft. I agree with his Honour's disposition of Grounds 2, 3 and 5. As for Ground 1, I respectfully disagree with his Honour's finding that no error is disclosed. I am satisfied that the sentencing Judge made factual findings regarding the Applicant's criminality which went beyond the evidence contained in the agreed facts. I also respectfully disagree with his Honour's conclusion that the aggregate sentence imposed on the Applicant is not unreasonable or plainly unjust (Ground 4). To put that in positive terms, I am satisfied that the aggregate sentence imposed is manifestly excessive.
For the purposes of this judgment, I adopt Johnson J's summaries of the relevant facts, submissions, transcript of the proceedings on sentence and reasons of the primary Judge. I am grateful to his Honour for his detailed exposition of the relevant principles. Ground 5 - That his Honour erred by not according the Applicant procedural fairness in the conduct of the sentencing hearing in that his Honour did not afford the Applicant's counsel an opportunity to be heard in relation to the factual basis upon which he proposed to sentence
In relation to Ground 5, I agree that the complaint that the Applicant was not afforded procedural fairness in the conduct of the sentencing hearing cannot be sustained. The transcript of the proceedings on sentence shows that, not only did his Honour indicate that he would not be bound by the statement of agreed facts as to the Applicant's role, but also that the Applicant's Senior Counsel was able to and did in fact provide detailed submissions as to what finding should be made on this issue. Despite this, I am satisfied that his Honour fell into error in relation to the ultimate finding he made in this regard. I will consider this below in relation to Ground 1. Ground 2 - That his Honour gave insufficient weight to the subjective circumstances of the Applicant
As for Ground 2, I agree with Johnson J that no House v The King (1936) 55 CLR 499; [1936] HCA 40 ("House v The King") error is disclosed by way of patent error in relation to the "weight" to be given to the Applicant's subjective features, although I will return to the question of possible latent error in this regard in my consideration of Ground 4. Ground 3 - That his Honour erred in not making a finding of special circumstances and adjusting the ratio of the head sentence to the non-parole period

[12]

Amendments 15 October 2018 - [151] - Amendments to Table. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 October 2018

Parties

Applicant/Plaintiff:

Tran

Respondent/Defendant:

Legislation Cited (1)

Crimes (Sentencing Procedure) Act 1999(NSW)

Cases Cited (73)

R v Fahda [2013] NSWCCA 86 R v Fidow [2004] NSWCCA 172 R v LP [2010] NSWCCA 154 R v Ly [2010] NSWDC 229 R v Nguyen; R v Tran [2011] NSWDC 135 R v Nong [2010] NSWDC 227 R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 R v Tran [2017] NSWDC 397 R v Uzabeaga (2000) 119 A Crim R 452; [2000] NSWCCA 381 R v Wei [2014] NSWDC 33 Shortland v R (2013) 224 A Crim R 486; [2013] NSWCCA 4 Stock v The Queen (2011) 206 A Crim R 574; [2011] NSWCCA 49 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 Tran v R [2010] NSWCCA 72 Vaiusu v R [2017] NSWCCA 71 Vu v R [2018] NSWCCA 122 Wong v R [2010] NSWCCA 160 Zhao v R [2016] NSWCCA 170 Texts Cited: --- Category: Principal judgment Parties: Tony Tran (Applicant) Regina (Respondent) Representation: Counsel: Ms S Kluss (Applicant) Mr E Balodis (Respondent)

Solicitors: Ross Hill & Associates (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/245153 Publication restriction: --- Decision under appeal Court or tribunal: District Court NSW Jurisdiction: Criminal Citation: R v Tran [2017] NSWDC 397 Date of Decision: 19 May 2017 Before: King SC DCJ File Number(s): 2015/245153

The Offences, Indicative Sentences and Form 1 Matters

The Applicant pleaded guilty to five counts of knowingly taking part in the cultivation by enhanced indoor means of not less than the large commercial quantity of cannabis plants contrary to s.23(2)(a) Drug Misuse and Trafficking Act 1985, for which the maximum penalty is 20 years' imprisonment with a standard non-parole period of 10 years. In addition, the Applicant pleaded guilty to one count of knowingly taking part in the cultivation by enhanced indoor means of not less than the commercial quantity of cannabis plants contrary to s.23(2)(a), for which the maximum penalty is 15 years' imprisonment with no applicable standard non-parole period.
At all relevant times, the large commercial quantity for cannabis plants was 200 plants and the commercial quantity was 50 plants: s.23(2)(a), s.33(1)(a), (3)(b) and (4) and Schedule 1, Drug Misuse and Trafficking Act 1985.
It was the case that, with respect to each of the premises, the cannabis plants were being cultivated by enhanced indoor means: Crowley v R [2017] NSWCCA 99 at [29]-[35].
The sentencing Judge nominated the following indicative sentences for the large commercial quantity offences: 1. Sequence 8 - offence committed at Greenacre between 6 December 2012 and 5 July 2013 involving 418 plants - taking into account two offences on a Form 1, eight years' imprisonment with a non-parole period of six years; 2. Sequence 7 - offence committed at Stanmore between 17 September 2013 and 20 October 2013 involving 377 plants - imprisonment for six years and eight months with a non-parole period of five years; 3. Sequence 6 - offence committed at Kingsford between 13 June 2013 and 19 October 2013 involving 281 plants - imprisonment for six years with a non-parole period of four years and six months; 4. Sequence 5 - offence committed at Punchbowl between 22 March 2013 and 24 July 2013 involving 360 plants - imprisonment for six years and eight months with a non-parole period of five years; 5. Sequence 2 - offence committed at Lakemba between 8 May 2014 and 28 October 2014 involving 353 plants - imprisonment for six years and eight months with a non-parole period of five years.
For the commercial quantity offence (Sequence 4) committed at Croydon between 7 April 2013 and 21 March 2014 involving 177 plants, an indicative sentence of five years' imprisonment was noted.
The Applicant requested the sentencing Judge to take into account on sentence for Sequence 8, two further offences which related to the Applicant's own residential premises: 1. Sequence 11 - an offence at Glen Alpine on 21 August 2015 of enhanced indoor cultivation involving a commercial quantity of prohibited plants (80 cannabis plants), which exposed a child to the cultivation process contrary to s.23A(2) Drug Misuse and Trafficking Act 1985 which (if prosecuted separately) was punishable by a maximum penalty of 18 years' imprisonment; 2. Sequence 12 - an offence at Glen Alpine on 21 August 2015 of using or consuming electricity without authority contrary to s.64(1) Electricity Supply Act 1995 for which the maximum penalty (if the offence was prosecuted separately) was imprisonment for five years.

[2004] HCA 22

[2013] VSCA 63

[2015] HCA 39

[2001] HCA 64

[2005] HCA 25

(2013) 277 FLR 126

(1992) 28 NSWLR 593

(2018) 92 ALJR 764

(2015) 256 CLR 47

(2004) 217 CLR 198

(1936) 55 CLR 499

(2007) 230 CLR 1

(1993) 32 NSWLR 348

(2001) 53 NSWLR 704

(1999) 199 CLR 270

(2015) 256 CLR 550

(1999) 195 CLR 665

(2000) 202 CLR 321

(2001) 207 CLR 584

(2005) 228 CLR 357

(2010) 242 CLR 520

Cited By (10)

Alou v R

Amante v R

Nguyen v R

Nguyen, Hung Manh v R

His Honour referred to authorities concerning fact-finding on sentence, including Chow v Director of Public Prosecutions (1992) 28 NSWLR 593, O'Neil-Shaw v R [2010] NSWCCA 42 and Cherdchoochatri v R (2013) 277 FLR 126; [2013] NSWCCA 118, before turning to aspects relevant to determination of the role of the Applicant (at [44]-[64]): "44 In Hanh Thi Nguyen [2011] NSWCCA 92, Simpson J stated, with Davies J agreeing, when dealing with the issue as to whether in the circumstances of that matter the offender could have been legitimately regarded as a principal: 'The role of principal involves at least some of the following characteristics: 1. Contributing financially to the cost of setting up the operation; 2. Standing to share in the profit (as distinct from receiving payment); 3. Some management of the operation; and 4. Some decision making'. 45 This list is not exhaustive. 46 As previously referred to, the only evidence of the offender carrying out any task in relation to each of the six matters in respect of which he is to be sentenced is that he arranged the leasing of the premises knowing that they were to be used for the cultivation of cannabis plants by indoor means. 47 The sentencing task has been made difficult for the Court because the facts have been sanitised of contextually relevant information. For example, there is no reference whatsoever in relation to any crops as to the stage of plant growth. Were the plants seedlings, cuttings which had taken root, or mature plants, or somewhere in between? Were there plants at any one location at various stages of growth, indicating a commitment to effect continuous production? There is no information in respect of any of the premises, including the premises relevant on the Form 1, as to the prospective value of any crop at maturity, or as seized. 48 There is no evidence as to the lease or rental fees relevant to any of the properties, including the Form 1 property. In respect of the commercial premises, and only in respect of Lakemba, is there any reference relevant to the assessment of the cost of leasing the premises. A one‑month rental bond in the amount of $7,800 had been provided to secure the premises. Those premises were originally leased or rented by the offender on 8 May 2014. Their possible use for the production of cannabis plants ended on 23 October 2014, when the search warrant was executed. That is a period of approximately five months. On that basis, if the rental bond represented one month's rent, the rent for the period of approximately five months would be $39,000. 49 In respect of information as to the equipment being utilised at each of the premises, there is in reality only relevant information in respect of Lakemba, being the reference in the facts to 126 high pressure sodium lamps, 146 lampshades, 137 transformers, eight power boards, temporary walls, and a water bath. 50 In respect of all other premises including Glen Alpine, there is nothing more than a simplistic anodyne description of a generic nature: 'Inside the premises, police located a sophisticated, hydroponic cannabis cultivation system, consisting of complex light, air filtration and extraction systems, and a self‑replenishing system.' 51 Not even that much of a description is provided in relation to the premises at Glen Alpine, which are simply referred to as a 'sophisticated hydroponic growing system containing 80 cannabis plants in the basement', with the additional information that the power had been diverted. 52 There is no information in the facts in relation to any other premises as to whether a similar process had occurred, that is, diverting the electricity. 53 Although each of the premises was subject to the execution of a search warrant, during the course of which it is standard practice by the investigating authorities to take photographs and/or a video recording, not a single photograph or video has been produced to the Court which might allow the Court to make some assessment of the matters that I have just referred to. 54 There is no evidence provided by the facts in relation to any of the premises as to whether there was any evidence of any past completed harvesting or processing, that is, drying plants or heads, nor evidence of any materials that might be utilised in the processing to bag up quantities. 55 Of particular note is that the premises at Stanmore were leased on 17 September 2013 and their use terminated on 20 October 2013 when the search warrant was executed. That is a period of approximately one month, an insufficient period for the maturation of any crop unless already well matured plants had been put into the premises after they were leased. 56 The longest period between the leasing of the premises and the termination of their use by the execution of the search warrant is in respect of the Croydon premises which were rented on 7 April 2013 and searched on 21 March 2014, a period of approximately 11 months, a period during which it would be entirely possible for at least one crop to have been grown to harvest, and a further crop, at least, substantially if not completely, also grown to harvest. 57 If it can be reasonably assumed that Lakemba provides some reasonable evidence of the lease costs applicable to the other premises, which, although in different suburbs, were all within the central metropolitan region, and also the likely amount of equipment that may have been required for at least each of the large commercial crops if not also the Croydon or Glen Alpine commercial crops, it is obvious that there must have been a very substantial investment in the overall undertaking, and the resources so substantial that substantial loss could be sustained as over time various premises were detected, searched and put out of operation. Nonetheless, from time to time further substantial investment was made in new premises to replace what was lost. 58 The first lease agreement was on 6 December 2012. The last lease entered into was on 8 May 2014. This is a period of activity by the offender, in relation to locating premises and entering into leases, of approximately 18 months. 59 The period over which the combined premises potentially operated is from 6 December 2012 in relation to the rental of the Greenacre premises until the search of the Lakemba premises on 23 October 2014, a period of almost two years. However, that ignores the offender's commission of the offences contained on the Form 1. As previously indicated, there is no information before the Court other than that Glen Alpine was searched on 21 August 2015 and that a hydroponic crop of 80 plants with the electricity diverted was located. From the first leasing of the Greenacre premises on 6 December 2012 until the detection of the Glen Alpine premises and their search on 21 August 2015 is a period of approximately two years and nine months. 60 A number of the premises were potentially in operation for co-extensive periods - Greenacre, Kingsford, Punchbowl and Croydon, although each not for the whole of the total period covered from first lease to final search. In respect of Greenacre, there was a seven month period from leasing to search, being the period from 6 December 2012 to 5 July 2013. In respect of Kingsford, the period was from 13 June 2013 to 19 October 2013, a period of approximately four months. In respect of Punchbowl, a period of approximately four months from 22 March 2013 to 24 July 2013. In respect of Croydon, a period of approximately 11 months from 7 April 2013 to 21 March 2014. In respect of Lakemba, a period of approximately five months from 8 May 2014 to 23 October 2014. In respect of Stanmore, a period of approximately one month from 17 September 2013 to 20 October 2013. 61 The offender was the person responsible for arranging the leasing of each of the premises with the knowledge that they would be used for the purposes of cultivating cannabis plants by enhanced means. 62 His commission of the offences in his own residence at Glen Alpine indicates that he was well aware of the means of production and had the necessary skills to himself run the operation in the basement of his own home. He was not some naïve person who had been brought into someone else's scheme with limited knowledge, a limited role and limited participation. The facts disclose an extensive and expensive criminal operation in respect of which, before entering into any lease, the offender had to have an intimate knowledge as to what was required for the purposes of production: that is, he had to be able to find appropriate premises that would provide the space, the security and the facilities that might be needed for the production. His conduct was essential to the location and commencement of production at each of the premises. 63 In relation to each of the six offences for which he is to be sentenced, each can be regarded, although there are differences in the quantity of plants, as being an offence approaching the mid-range of objective seriousness. In respect of the offence relating to his residential premises at Glen Alpine it is reasonable to regard him as clearly being the principal and clearly having a high moral culpability in respect of that offence. 64 The assessment of an appropriate sentence for this offender in respect of each of the six offences must have regard to what is demonstrated by the facts, being a criminal enterprise of a very substantial and significant nature and in respect of which his role was essential and his moral culpability high, as he full well knew the nature of the activity to be engaged in."

His Honour then referred to principles concerning Form 1 offences (at [65]-[66]) before returning to the Applicant's role in the offences (at [67]-[75]): "67 Any sentence imposed on the offender in relation to these offences must reflect the individual offence within the overall conduct as demonstrated by what he actually did. 68 In relation to the six offences there is little point in trying to ascribe a descriptive term to his role. As I have already indicated his role was essential and carried out over a significant period of time with full knowledge of the purpose. 69 It is significant in respect of these matters that with one exception, in relation to the premises at Lakemba, no other person was ever identified by the authorities as having any role at all to play in the individual offence. 70 The offender has not given evidence on sentence. He did not participate in a record of interview or at any time offer assistance to the authorities to identify any other person in respect of the commission of any of the offences. 71 Where an offender seeks to be dealt with on the basis of some mitigating circumstance, such as a lesser role, it is for the offender to provide appropriate evidence to assist the Court in finding such a lesser role on the balance of probabilities. The offender has not done so. 72 This matter first came before me on 3 March 2017 at which time on the application of Mr James AM QC the matter was adjourned so that further materials could be obtained. The Crown bundle was tendered, and the matter returned before me on 12 May 2017. 73 In the intervening period I had had the opportunity to read the agreed facts. When the matter returned, apart from indicating that I did not regard myself as bound by the agreed passage in the facts as to role, I also inquired of the Crown, in the circumstances where so many premises had been the subject of search warrants, as to whether or not any other person had been arrested in relation to any of the offences, such information being essential, if there had been other persons arrested, to any issue of parity. It was not until the Court made that inquiry that the Prosecution first informed the Court that there had been two persons arrested in relation to the Lakemba premises. The Prosecution was unable to provide the Court with the reasons on sentence of Judge Norrish in respect of Phuong Nam Pham, on 15 December 2015, nor in respect of Thanh Chung Nguyen, on 21 October 2016, although the DPP representative was able to provide some facts and the notes of an officer of the DPP in relation to the sentencing of Nguyen. It was apparent that despite knowing of the other persons charged in respect of Lakemba, the Prosecution had not sought to obtain the remarks on sentence in each case of Norrish QC DCJ. 74 Fortunately, my associate was able on that day to obtain the revised judgments from Norrish QC DCJ's associate, and they were provided to each of the parties when available so that any necessary submissions could be made and entertained on that day rather than any further delay caused. 75 I have read each of the decisions of Norrish QC DCJ in relation to Pham and Nguyen so that I might consider whether there are any parity issues to be taken into account. In each case there are significant differences between the conduct of those individuals and/or the number of offences in respect of which they were dealt with, and while I have taken into account the sentences that were imposed on them, in my view there is no significant issue in relation to parity, each of the matters being capable of substantial distinction from this offender."

His Honour specified the indicative sentences for the offences (as set out earlier at [8]-[9]) and then continued (at [127]-[131]): "127 It will be evident to the parties from those indicative sentences that I have not found special circumstances. I note the letter to the Court from the offender's current wife and the psychological report suggesting that she is suffering from a major depressive disorder and receiving treatment for it and is living in more constrained circumstances, having lost the benefit of any income from whatever source that her husband brought into the family relationship. She now relies solely on the Newstart allowance and is said to have had to move properties to something more affordable. She is said to have suffered from insomnia, weight loss, low mood, feelings of helplessness, suicidal ideation with planned intention and high anxious arousal about her future. Those symptoms caused clinically significant distress and impairment on her social, occupational and other important areas of functioning, which are likely to remain poor for the period her husband remains detained. That is of course one of the unfortunate consequences of one's partner committing serious criminal offences. Specifically in respect of the hardship in respect of family in King v R [2010] NSWCCA 202 at [18] it was said: 'Hardship to an offender's family caused by imprisonment is generally an irrelevant consideration and can only be taken into account in highly exceptional circumstances in justifying a non‑custodial sentence: R v Edwards (1996) 90 ACrimR 510 at 516.' 128 There are circumstances, however, that whilst not sufficiently exceptional to justify a non-custodial sentence, are sufficiently exceptional in a suitable case to justify a finding of special circumstances: R v Grbin [2004] NSWCCA 220; R v Murphy [2005] NSWCCA 182. 129 In this matter, I have taken into account all of the matters that I have previously referred to. While the offender had a minimal criminal record and nothing relevant as I have previously said, it is impossible to regard him as being a person of good character in the light of the extensive offending and the substantial and significant nature of it. 130 The Court is required to impose not simply a sentence that reflects an individual charge, but also the overall offending conduct. Any sentence must reflect the objective seriousness of the offence as well as the need for general and specific deterrence, as well as meeting the fundamental purpose of punishment: the protection of society. 131 In relation to matters such as this where the offending is difficult to detect and where offenders, at whatever level of involvement, are frequently protected by any individual who is in fact arrested in respect of the offence, general deterrence is an extremely important factor. The imposition of an aggregate sentence must take into account by way of the totality of the offending and the need for the sentence to provide an effective deterrent to others. I am satisfied pursuant to s 5 of the Crimes (Sentencing Procedure) Act that there is no possible alternative other than a penalty of imprisonment. Appropriately, no submission has been made to the contrary."

In the leading judgment of the Court in Clarke v R, Garling J said at 169-170 [112]-[120]: "112 The Court has been referred to a significant number of cases which have dealt with similar offences. I will shortly mention two of these. 113 No one case will be identical with the issues presented here. The factors to which this Court has in the past had regard include the size, sophistication and complexity of the indoor-enhanced cultivation; the number of plants or quantity of cannabis produced by the operation and seized by the police; the role of the particular offender, namely whether the offender was a principal or an employee, or in some cases merely a watchman; and the various subjective circumstances applicable. Usually, but not universally, the sentences imposed have followed early pleas of guilty, and involved discounts of about 25%. 114 In 2013, this Court in Crawford v R [54], imposed a sentence of imprisonment of a non-parole period of 5 years and 7 months, and a total term of 7 years and 6 months in circumstances where there was a total of 319 plants and 3.476kg of cannabis leaf seized from a sophisticated hydroponic cultivation system. 115 The offender, in that case, who had engaged in the conduct because of financial difficulties, was considerably more mature than the applicant in the present case, and was regarded as the principal. 116 In Co v R [55], this Court dismissed an appeal against a sentence of 7 years and 6 months imprisonment including a non-parole period of 4 years where the applicant nurtured 266 plants for a period of 3 months and was fully involved in all aspects of the cultivation process, and as well, intended harvesting the plants for himself with the intention of selling the harvested leaf. The applicant was 44 at the time of his arrest and had no prior criminal history. He had had a difficult childhood including being a refugee from Vietnam. 117 As well, this Court was provided with a printout of statistics of a variety of offences against the section under which the applicant was charged. 118 The Court's approach to other cases and to statistics is well-known and does not need to be restated. I have carefully read and considered all of the cases to which reference has been made. The factors applicable in each case vary amongst themselves. In some cases, when compared with this case, the offenders were older. Some had no previous criminal history, others did. In some cases the quantity of drugs was less, in other cases somewhat greater. 119 No precise comparison is possible. However, having carefully read and considered those cases, what can be discerned is that the sentence imposed here did not fall outside either the top or bottom end of the ranges so as to enable it on that account to be described as manifestly excessive. 120 Nor am I persuaded that this is so. The sentencing Judge paid careful attention to the nature of the offence, the significant margin by which the number of plants exceeded the level required for a commercial quantity, the early plea of guilty, the subjective factors of the applicant and the sophistication of the operation, including his limited role in it."