Tran v R

The offences

1. According to a statement of agreed facts, police officers from the North West Metropolitan Region Enforcement Squad began an investigation into the enhanced indoor cultivation of cannabis plants in February 2018. Between February and 10 May 2018, the applicant and the co-offender were seen attending a house in Blaxland and on each occasion, they entered and remained inside for extended periods.
2. Between 19 April and 10 May 2018, electronic surveillance identified the two offenders attending the home on numerous occasions. Cannabis plants were growing in almost every room. There were no living areas in the home so there was no reason for attending other than to tend to the plants.
3. The offenders went to the home on 10 May 2018. The surveillance indicated that they moved plants from one "growing room" to another. They also carried drying racks to the garage area. After about two and a half hours of this activity, they changed out of the clothes worn while handling the cannabis plants and left. They were arrested soon after.
4. Police searched the home and found 172 cannabis plants in various stages of maturity. They also found electrical equipment including 129 high-pressure sodium globes and light fittings, 101 light shades and light brackets, 166 transformers and 2 distribution boards. A representative of Endeavour Energy found an illegal electricity by-pass and estimated that $52,014 of electricity had not been paid for.

Personal circumstances of the applicant

1. The applicant was aged 44 years at the time of the offences. He was born in Vietnam and he came to Australia with his family at the age of 15. He was married in 1998 but the marriage broke down after the applicant was sentenced in 2002 for supplying a prohibited drug. He received a term of imprisonment of 3 years and 6 months with a non-parole period of 2 years.
2. The applicant had been self-employed as a handy man for the 10 years leading up to his arrest in 2018. He previously had various unskilled jobs. A community corrections officer included in a Sentencing Assessment Report that the applicant appeared to have "an extensive pro-social network, offered by his parents, siblings and former partner, with whom he shares a 17 year old son".
3. The applicant explained the cause of his offending to a forensic psychologist, Mr Bradley Jones, whose report was tendered before the sentencing judge. He said that he had a poker machine gambling addiction. He had accumulated a debt of about $15,000 from borrowing money from a Mr Tuan for gambling. He was unable to pay the debt and Mr Tuan demanded that he work for him with the debt being reduced by $1000 for each week of work. The work involved watering the cannabis plants and doing general maintenance and tidying up around the house.
4. The reports included that the applicant accepted responsibility and was remorseful. He did not give evidence in the sentence proceedings.

Ground 1 - failure to indicate that the applicant was entitled to a 25% discount for the plea of guilty

1. Counsel for the applicant relied upon the fact that the judge made no mention of there being a quantified discount applied to the sentence imposed. The judge did not give any reasons for not allowing a discount and nor did he state that he had considered the plea.
2. The Crown accepted that the judge failed to state specifically that the applicant was entitled to a 25 per cent discount for the plea of guilty entered in the Local Court. However, the Crown invited the Court to infer from a number of circumstances that the judge had in fact taken it into account and had factored the discount into the sentence.
3. The provisions of Div 1A of Pt 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied to the proceedings. It was inserted in the Act as part of the Early Appropriate Guilty Pleas (EAGP) reforms by the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW) which took effect on 30 April 2018.
4. A discount for the utilitarian value of a guilty plea is "mandatory" in the sense described in s 25D of the Act. Where a plea of guilty is accepted by a magistrate in committal proceedings, the discount is a reduction of 25% of any sentence that would otherwise have been imposed: s 25D(2)(a). There are a number of exceptions in Div 1A of Pt 3 of the Act, but none of them applied in the present case.
5. A court is required to indicate to an offender and make a record of a discount that is applied and how the sentence is calculated. It is also a requirement that reasons be given if the court determines to reduce, or not apply, the discount: s 25F(7). (No such reasons were given in the present case.) A failure to comply with this, and the other requirements of Div 1A, does not invalidate any sentence imposed: s 25F(8). That, of course, does not mean that the issue cannot be the subject of a ground of appeal: s 101A; Forti v R [2016] NSWCCA 127 at [48]-[49].
6. The Crown referred to Lee v R [2016] NSWCCA 146 where, in relation to a similar ground of appeal, albeit in the pre-EAGP era, it was said (at [37]): "Because the plea is a mandatory consideration (s 22 says the court "must take [it] into account"), it must form part of the reasoning process and should therefore be addressed in the judgment. If the appellate court can be affirmatively satisfied that the plea was taken into account and an appropriate discount allowed, the failure to so state in the sentencing judgment may be treated as an immaterial error. Where there is a real possibility that it was not properly considered, failure to refer to the issue in the judgment should be treated as a material error."
7. Lee v R was referred to with approval in Zhang v R [2018] NSWCCA 82 at [51].
8. I am satisfied that the judge did sentence on the basis that the applicant was entitled to a 25 per cent reduction of sentence for his plea of guilty for the following reasons.
9. First, there was no issue in the proceedings that the applicant had entered an early plea in the Local Court. The judge was well aware of this. He commenced his remarks on sentence with the observation: "The offenders are for sentence following their pleas of guilty in the Local Court, to which they have adhered here, each to a charge of …".
10. Secondly, it is elementary that a plea of guilty entered in the Local Court will normally attract a reduction of sentence of 25 per cent. That was the case under the general law and is now explicit in the legislation as indicated above. With respect, there was no merit in the contention of counsel for the applicant at the hearing of the application that the judge might have had in mind some other level of discount.
11. Thirdly, the Crown conceded in written submissions to the judge that the applicant and his co-offender were "entitled to the full discount for the utilitarian value of their pleas". In the lexicon of criminal sentencing law, the "full discount" is well understood to be a reference to 25 per cent. The point was so uncontroversial between the parties that nothing more was said about it.
12. Fourthly, the judge made observations about past sentences according to the sentencing statistics to which he was referred. The statistics had been deliberately distilled solely to offenders who had pleaded guilty. Of course, the statistics did not disclose the level of discount each offender had received for his or her plea. However, there was an indication in the judge's sentencing remarks when referring to the statistics that he appreciated that 25 per cent was the highest level of discount. He referred to cases in which 5-year sentences had been imposed as being ones in which, if the offenders had been sentenced after trial, the sentences would have been "of the order of less than seven years". (A sentence of 5 years absent a 25 per cent discount would be one of 6 years and 8 months.)
13. Fifthly, the judge was also provided with a schedule of four "comparable" cases. Each case involved an offender who had pleaded guilty and in respect of three of them, the level of discounting was specified. One was said to be a "late PG" which attracted a "15% discount". The other two were a "PG" that attracted a "25% discount".
14. Finally, the judge made remarks (at considerable length) during the proceedings about his personal opinion of the inadequacy of sentences imposed for the offence in question. Importantly, for present purposes, he also stated his perception of the need to impose a sentence in accordance with the range indicated in the statistics and comparable cases. For example, he said that he did not want to "buck the pattern". That range involved entirely sentences that had been discounted because of pleas of guilty.
15. I am not persuaded that the judge failed to have regard to the applicant's plea of guilty. Moreover, it is abundantly clear that he was aware that the plea had been entered in the Local Court. There can be no doubt that his Honour was aware that a plea entered at such an early stage warranted a reduction of sentence of 25 per cent.
16. I would grant leave in respect of this ground because it required some close analysis. In the end, however, I would reject it.

Ground 2 - failure to apply special circumstances

1. It was submitted by counsel for the applicant that the judge appeared to accept that the applicant would need assistance in the community to address his gambling addiction, social isolation and limited English. However, he declined to make a finding of special circumstances because it was indicated in the Sentencing Assessment Report that supervision was not called for and would not be provided, even if ordered, having regard to the applicant's low risk of reoffending.
2. The community corrections officer stated in the Sentencing Assessment Report: "If the court makes a supervised order, Community Corrections will supervise Mr Tran at the Tier 1/Low supervision level of the Service Delivery Standards. This means that he will be required to report to a Community Corrections Officer every eight weeks, with home visits not being a requirement of his assessed level of supervision. Due to Mr Tran's Tier 1/Low risk of reoffending, if the court makes a supervised order, Community Corrections will suspend Mr Tran's supervision in accordance with clause 189I of the Crimes (Administration of Sentences) Regulation 2014." (Emphasis added)
3. The cl 189I referred to requires a community corrections officer to take a number of nominated matters into account before deciding under ss 82A, 107E or 108E of the Administration of Sentences Act to suspend the application of a supervision condition to an offender. Those three sections of the Administration of Sentences Act are concerned, respectively, with supervision under an intensive correction order, a community correction order and a community release order.
4. Accordingly, what the officer was addressing in the report in relation to the possibility of the court imposing a "supervised order" was whether there would actually be supervision if one of those sentencing options were adopted. This is consistent with the explicitly stated purpose of the report itself: "The information in this report is provided under s 12A [sic] of the Crimes (Sentencing Procedure) Regulation 2017 to assist the court in deciding the appropriate community based sentence and conditions for the offender. It may be used to make a conditional release order, a community correction order, or an intensive correction order."
5. If sentenced to a term of imprisonment of three years or less for which a non-parole period has been set (as the applicant was), there is taken to be a parole order (a "statutory parole order"): s 158(1) of the Administration of Sentences Act. The definition of "parole order" in s 3(1) of the Administration of Sentences Act includes an order in force under s 158. Section 128C provides that "it is a condition of a parole order that the offender is to be subject to supervision, as prescribed by the regulations": s 128C(1). (Clause 214A of the Regulations provides for the conditions of supervision of an offender who is subject to supervision under a condition of parole imposed by, inter alia, s 128C(1) of the Administration of Sentences Act.) However, s 128E of the Administration of Sentences Act provides that supervision may be suspended by a community corrections officer in respect of a supervision condition referred to in s 128C(1).
6. It may well be the case that for the same reasons as supervision would have been suspended if the applicant had received a "supervised order", there will be suspension under s 128E in respect of supervision as a condition of parole. It may be expected that this will not be finally determined until a post-release plan is formulated near the time the applicant is due to be released. It would have been premature for a community corrections officer to opine as to this at the stage of writing a Sentencing Assessment Report.
7. Counsel who appeared for the applicant in the District Court mildly suggested that there could be a finding of special circumstances but did not suggest the basis upon which it could be made. When pressed by the judge as to why there should be an alteration of the statutory ratio, he said: "It's always a balance exercise in relation to that, your Honour. If your Honour's minded not to change the ratio, then I can't advance strong submissions for special circumstances".
8. This was not a case in which special circumstances should have been found with the result that the parole period would be longer and the non-parole period shorter. The applicant was found by the community corrections officer to be at a low risk of reoffending. He had "an extensive pro-social network", a history of employment, no difficulties in maintaining his everyday expenses and commitments despite an issue with gambling, and no substance abuse issues. The psychologist felt that "upon his release [he] would require a low/moderate level of supervision". He did suggest some areas in which the applicant would benefit from treatment, but there was no suggestion that they required an extended period of parole.
9. At the hearing of the application, in light of the recent development of the applicant having been admitted to reintegration home detention, counsel conceded that the force of her argument in relation to this ground had "lost a little traction".
10. This ground must be rejected.

Ground 3 - manifest excess

1. The written submissions for the applicant were confined to a contention that the sentence "sits at the top of the range indicated" in the comparative cases and statistics provided to the sentencing judge. Aside from stating that it was 16 years since the applicant's previous conviction (for a drug supply offence), there was no amplification of the submission.
2. The prescribed amount of plants for the commercial quantity of cannabis when cultivated by enhanced means is 50 and for the large commercial quantity it is 200. Here, the number of plants was 172.
3. The applicant attended the cultivation site on numerous occasions. It was accepted that he was not a principal, but his role was a necessary part of a significant criminal enterprise. His motivation was to obtain a reduction of a debt by $1000 for each week of work.
4. Having regard to all of the circumstances of the case, including the prescribed maximum penalty of imprisonment for 15 years and the strong emphasis that should be placed upon general deterrence, I am not persuaded that the sentence of 3 years can be characterised as unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.

Orders

1. I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal dismissed.
2. BUTTON J: I agree with R A Hulme J.

Amendments 12 March 2020 - Correction to catchwords 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: 12 March 2020