Vu v R

Court of Criminal Appeal (NSW)|2023-08-18|Before: Walton J, Sweeney J

Solicitors: Fusion Legal (Applicant) C Hyland, Solicitor for Public Prosecutions (Respondent) File Number(s): 2020/00250191 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 27 May 2022 Before: Judge Wass SC File Number(s): 2020/00250191

JUDGMENT

BASTEN AJA: The applicant, Duc Thang Vu, sought leave to appeal from an aggregate sentence imposed on him by Judge Wass SC in the District Court on 27 May 2022. The sentence involved a term of imprisonment for 9 years with a non-parole period of 5 years and 6 months, backdated to commence on 27 August 2020.

Ground 1(a)

The statement of the charges and maximum penalties, set out at the commencement of the judge's reasons for sentence, included the statement that the maximum penalty for the offence of a deemed supply of a commercial quantity of cannabis was 20 years imprisonment with a standard non-parole period of 15 years. In the case of cannabis leaf, s 33(3)(b) of the Drug Misuse Act provided a maximum penalty of imprisonment for 20 years. The large commercial quantity of cannabis leaf was an amount over 100kg, [2] the amount in issue in the present case was well over that threshold, being 427kg. However, there was no standard non-parole period, let alone a period of 15 years.
As that period equates to the default position of the ratio between a non-parole period and a sentence under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act) with respect to the maximum penalty, the standard non-parole period has extraordinary significance, because it implies that the appropriate sentence for a matter in the mid-range of objective seriousness is the maximum available sentence.
The judge did not comment on that fact and, indeed, having identified the charges and maximum penalties at the beginning of her reasons, did not thereafter refer to either the standard non-parole period or the maximum penalty. Nevertheless, it would not have been stated if, in accordance with the uncontentious fact that it was a relevant guidepost, it was not to be taken into account, at least to some extent. So long as the Court is not affirmatively satisfied that the standard non-parole period, whilst referred to, was disregarded, it should be assumed that it was treated as a guidepost and had operation. Accordingly, there was a material error and the Court is required to resentence the offender. [3] As recently explained by Simpson AJA in Hitchen v R: [4] "59 The standard non-parole period, like the maximum prescribed sentence, operates as a 'legislative guidepost': Muldrock at [27]. [5] The likely outcome, in practical terms, of taking into account a standard non-parole period will be, at least in some cases, 'a move upwards in the length of the non-parole period' specified: Muldrock at [31]. An applicable standard non-parole period may thus affect, adversely to the offender, the sentencing outcome."
The Director's concession as to the error identified in ground 1(a) should be accepted.

Ground 1(b)

The second part of ground 1 was not the subject of an unequivocal concession by the Director. The conspiracy to manufacture a commercial quantity of methylamphetamine was said by the judge to carry a maximum penalty of 20 years with a standard non-parole period of 10 years.
The substantive offence of manufacturing or knowingly taking part in the manufacture of a prohibited drug of not less than the commercial quantity is found in s 24(2) of the Drug Misuse Act. The penalty for that offence is set out in s 33, which provides penalties for a range of offences, including s 24(2). However, the charge in the present case was one of conspiracy. Section 26 of the Drug Misuse Act, which falls within the same Division as s 24, provides as follows: 26 Conspiring A person who conspires with another person or other persons to commit an offence under this Division is guilty of an offence and liable to the same punishment, pecuniary penalties and forfeiture as the person would be if the person had committed the firstmentioned offence.
That provision is also dealt with in s 33, and it is appropriate to set out s 33 so far as relevant: 33 Penalties for offences involving commercial quantities or cultivation for a commercial purpose (1) This section applies to the following offences - (a) an offence under section 23(1A) or (2), 24(2) or 25(2) or (2A), (b) an offence under section 26 of conspiring to commit an offence referred to in paragraph (a), (c) an offence under section 27 of aiding, abetting, counselling, procuring, soliciting or inciting the commission of an offence referred to in paragraph (a), (d) an offence under section 28 of conspiring to commit, or of aiding, abetting, counselling, procuring, soliciting or inciting the commission of, an offence under a law in force outside New South Wales which corresponds to section 23 (1A) or (2), 24 (2) or 25 (2) or (2A). (2) The penalty for an offence is - (a) except as provided by paragraph (b), a fine of 3,500 penalty units or imprisonment for 20 years, or both, or (b) where the offence relates to cannabis plant or cannabis leaf, a fine of 3,500 penalty units or imprisonment for 15 years, or both. (3) Despite subsection (2), if the court is satisfied that the offence involved not less than the large commercial quantity of the prohibited plant or prohibited drug concerned, the penalty for the offence is - (a) except as provided by paragraph (b), a fine of 5,000 penalty units or imprisonment for life, or both, or (b) where the offence relates to cannabis plant or cannabis leaf, a fine of 5,000 penalty units or imprisonment for 20 years, or both. (4) In this section - large commercial quantity, in relation to a prohibited plant or prohibited drug, means the number or amount, if any, specified opposite the plant or drug in Column 5 of Schedule 1.
As counsel for the Director correctly observed, there have been a number of judgments in which members of this Court have considered whether an offender convicted of an offence involving accessorial liability (aiding and abetting), an attempt, or a conspiracy to commit a substantive offence to which a standard non-parole period applies is itself subject to the standard non-parole period.
The answer to the question must be one of statutory interpretation and that may vary depending upon the terms of the statutory provision in question. Accordingly, it is convenient to resolve the issue only by reference to the operation of s 26 of the Drug Misuse Act, providing for the offence of conspiracy.
The following propositions support the conclusion that the standard non-parole period with respect to an offence under s 24(2) is not engaged with respect to a conspiracy to commit that offence.
First, the very existence of s 26 demonstrates that s 24(2) and s 26 create separate offences. Secondly, Div 1A of Pt 4 of the Sentencing Procedure Act specifies standard non-parole periods with respect to particular "offences". The table to the Division identifies an offence under s 24(2) in item 17 (with a non-parole period of 15 years). It does not identify a standard non-parole period for an offence under s 26 of the Drug Misuse Act.
Thirdly, there is no necessary reason to construe a provision creating a particular offence, and specifying that it should carry the same penalty as another offence, to pick up a provision in a different statute (the function of which is not to impose penalties) fixing a standard non-parole period for the other offence. The natural meaning of the word "punishment" in s 26 is the maximum punishment fixed under s 33, which deals separately with offending under s 24(2) and s 26. The fact that the same maximum penalty is imposed with respect to a range of offences says nothing about the standard non-parole periods in relation to those offences, if any.
Finally, if there were any residual ambiguity in the operation of these provisions in the Drug Misuse Act, that ambiguity should be resolved in favour of the individual subject to a loss of liberty. [6] Application of that principle would confirm the conclusion that the standard non-parole period with respect to s 24(2) does not apply to the offence of conspiring to commit an offence under s 24(2). It follows that, although none of this was explored before the sentencing judge, there was error in treating the conspiracy charge as having a standard non-parole period as a guidepost.

Ground 2: proceeds of crime

The gravamen of ground 2 was that, in dealing (briefly) with the matter on the Form 1, the judge made a finding that the money located in the applicant's house was in fact "proceeds of crime" and not merely money reasonably suspected of being proceeds of crime, being the terms of the charge which the applicant agreed he had committed. One relevant statement in the judgment was as follows: [7] "He had in his possession at his house in various places $57,890, only $800 of which was found in his wallet. I do not accept his statement to the psychologist that he was minding it and not otherwise allowed to use it. That leaves his possession of a very significant amount of cash, accepted to be the proceeds of crime, unexplained other than as supportive of the involvement in the crimes beyond seeking to have a debt repaid."
Counsel for the applicant noted that there was a separate offence of dealing with proceeds of crime, which if undertaken with knowledge, carries a maximum penalty of imprisonment for 15 years, and if recklessly, imprisonment for 10 years. However, there is no basis for concluding that the sentencing judge mistook the offence. Rather, the language used in the judgment reflected that in almost every other document (no doubt other than the indictment) which referred to the money, and being in possession of the money, referred to it as "proceeds of crime". There was no submission that the judge should find that it was in fact proceeds of crime, nor did she explicitly do so.
The document titled "Proposed Facts" prepared by the Director and signed by the applicant, expressly referred to an offence under s 193C(2); the Crown Sentence Summary expressly referred to such an offence, and the maximum penalty of 3 years imprisonment. There is no reason to suppose that the judge mistook the offence which was contained on the Form 1; nor that she mistook what was being accepted by the applicant in that respect. The amount was not insignificant, but it was less than $100,000, above which a higher penalty would have applied.
The appropriate inference is that the judge adopted the same shortened label for the offence as did others, and not that she made a finding of fact which was not open to her on the evidence. Ground 2 is rejected.

Ground 3: failure to find good character

Even if ground 2 had been made out it would have had little consequence for resentencing the offender. Ground 3, however, falls into a different category.
This ground was not based on a finding that the applicant was not of good character, but rather that, having been invited to find that he was of good character, the judge made no finding one way or the other. In that respect the submission constituted a suggested failure to have regard to a favourable consideration which had been raised by counsel for the applicant and was available on the evidence.
The judge accepted that the applicant had no prior criminal record (relevant to the present charges) and was therefore entitled to a degree of leniency on that account. The applicant accepted that the absence of a criminal record was separate from good character, though no doubt relevant to it, as explained by Kirby J in Weininger v The Queen [8] and repeated by Fullerton J in Goldberg v R. [9] However, the applicant submitted that a consideration of character was to be undertaken without reference to the offences for which an offender was to be sentenced, as explained by McHugh J in Ryan v The Queen. [10] In the following terms: "If an offender is of otherwise good character, then the sentencing judge is bound to take that into account in the sentence that he or she imposes. The weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances."
That statement may be accepted, but it is conditional: it is necessary for the offender first to establish that he was otherwise of good character. In the present case, he did not give evidence and statements which might have been supportive of his character made to third parties were not accepted by the sentencing judge. (These will be returned to below.)
Indeed, the sentencing judge found (on the basis of the agreed facts) that in some respects he had lied to police and had uniformly downplayed his involvement in the offending which he ultimately accepted for the purposes of his sentencing. No doubt it is difficult for a person who has migrated to this country without his family to find others who will speak for him, especially in circumstances where he himself has little English. However, most migrants who have established a position in the community will find those who can speak to their character, including employers and community leaders. Disregarding the offending, it was no doubt true that there was no evidence that the applicant was not of good character, but that did not oblige the sentencing judge to make an affirmative finding as to his character in terms which would mitigate the sentence which might otherwise have been imposed.
The applicant's submissions relied in part upon a letter provided by his mother in Vietnam which spoke about the applicant's upbringing and the fact that, despite many difficulties he had faced, he "is a hardworking person" and got work despite not speaking much English. However, she also spoke of the difficulties in his life, including him being sexually abused as a child and bullied at school. She recounted with sorrow that he had "started to spend time with the wrong people and alcohol quickly turned to gambling and drug use". Whilst such circumstances suggest that the account given by his mother was truthful and accurate and evokes a significant element of sympathy, it provides little support for an affirmative finding of good character.
While it is true that counsel raised the question of good character and that the judge did not expressly discuss the evidence in terms of good character, she did address it in considering his "subjective case", primarily in rejecting arguably more important claims relating to remorse, rehabilitation and deterrence. In the circumstances, there was no error in failing to make a finding of good character.

Resentencing

Although the findings with respect to ground 1 are sufficient to require this Court to resentence the applicant, the issues raised by grounds 2 and 3 have been addressed because they are relevant to the resentencing exercise.
The circumstances of the offending involved conduct extending from August 2019 until April 2020. The cannabis offences involved the purchase of a farm near Ballimore, east of Dubbo, for which negotiations were undertaken by a co-offender, Thi Huyen Trang Vu (no relation of the applicant), and with funding provided by a third party. Thi Vu and the applicant travelled to the property on 3 September 2019 and arranged the purchase and installation of a large commercial greenhouse, approximately 100m by 40m. On 24 October 2019 Thi Vu arranged the purchase of two 500 litre rainwater tanks. Later it became necessary to arrange for the installation of electricity. The applicant was not involved in the latter two activities, but Thi Vu was in contact with him throughout the period during which the farm was established. The applicant purchased materials from Bunnings on seven occasions between 31 January 2020 and 23 April 2020. On 19 April 2020 he visited the farm and went to the greenhouse where cannabis plants were growing.
The property had been under police surveillance from 26 August 2019. When the police executed a search warrant on 27 April 2020, 2,441 cannabis plants between 30cm and 40cm in height were located, and 428kg of cannabis leaf was found on drying racks. The equipment located in a house on the property included numerous boxes of resealable storage bags, three vacuum sealing machines, scales, and a tax invoice for the purchase of two vacuum sealing machines in the name of Thi Vu. The agreed facts stated: "It is conceded that the offender played a significant role in the joint criminal enterprise with other offenders, he expected to receive monies with others from the sale of the harvest."
In the same period, the applicant was involved in three attempts to manufacture methylamphetamine. On 28 November 2019, the applicant flew to Melbourne and met with two men, known as Dong and Pham, who discussed with him the process for manufacturing methylamphetamine. (The conversation was recorded by a listening and tracking device placed by police in the vehicle.)
On 4 February 2020, the applicant and the other two men took equipment to a property at Kemps Creek in western Sydney which had been leased by Thi Vu. An unsuccessful attempt to produce methylamphetamine occurred that evening.
The other two men returned to Melbourne, but on 19 February 2020, they again drove from Melbourne to Sydney after a quick telephone call that evening with the applicant, discussing the need for normal ice, not dry ice, they arrived at the property in the early hours of 20 February 2020 with the applicant. That afternoon they returned to the property with further equipment and carried out a second unsuccessful attempt to manufacture methylamphetamine. A third attempt took place on 28 February 2020. Although the offenders appeared to think that they had had some success on that occasion, they abandoned the property two days later.
On 1 March 2020 the applicant and Thi Vu attended the property, cleared it out and cleaned it. On 13 August they returned to the property and removed a hydrogen gas cylinder. An expert examination undertaken on 27 August 2020 discovered that some methylamphetamine had been manufactured at the property. On 27 August 2020 a search warrant was executed at the residential premises used by the applicant and money, together with four mobile phones, were seized. The applicant was arrested and charged with the offences the subject of the proceedings. In the course of a record of interview, he denied involvement with drugs, downplayed his role in the attempted manufacture of methylamphetamine and denied knowing how to manufacture the drug.
Before turning to the unchallenged findings of the objective seriousness of the offending, it is convenient to address the limited evidence concerning the applicant's personal circumstances.
The subjective material relating to the applicant's personal circumstances, available on the sentencing hearing, was largely derived from a report by psychologist, Dr Christopher Lennings, of 23 March 2022. The sentencing judge had difficulty in accepting much of the information recounted by the applicant and recorded in the report, because it lacked detail, was unverifiable, and was to some extent inconsistent with the account of his earlier life given by his mother. In the circumstance where no witness gave evidence, the judge declined to make affirmative findings on much of the material. Apart from the issue of good character, no issue was taken with that approach on the appeal.
There were however elements which were consistent and may be accepted. As to his time as a youth in Vietnam, Dr Lennings recorded that the applicant was born into a poor family, his father was an alcoholic and his mother worked to support the family. He said that his father was also a gambler and would physically abuse the applicant until his mother gave him (the father) money to gamble. Although the applicant's account of sexual abuse by a neighbour as a child in Vietnam was somewhat limited, he confirmed his mother's account that he was "stigmatised for being a sexually abused child", although he made no direct reference to bullying on that account. Nevertheless, he said he had had to move schools a couple of times because it became known that he was sexually abused.
He moved to Australia without his family in 2009. He was 19 years of age, on a student visa, but without English language capabilities. (He used an interpreter when speaking to the psychologist.) He gave an account of working from 2012 in low skilled menial work which was unstable. He also gave an account, which the judge did not accept, of a domestic relationship, which commenced in 2012, followed by a marriage in 2018, but collapsed almost immediately, which led him to heavy alcohol use, use of cannabis and then methylamphetamine.
Even to the psychologist, in March 2023, he denied that the large sum of money in his possession was his, stating that "he was not allowed to use [it]"; but that his involvement with drug production resulted from debts he had incurred through use of drugs and gambling. The sentencing judge did not accept that account, drawing an inference that his involvement with both the charged activities was for the purpose of profit and that the money in his possession was reasonably suspected of being the proceeds of crime. Those findings should be accepted. (That conclusion may be drawn whether or not the judge's findings as to the proceeds of crime, the subject of ground 2, are correctly understood above.)
As the sentencing judge observed, there was a significant lack of material from which to make findings as to what he had done in Australia between 2008 and 2012, when purportedly on a student visa but with no English language skills; what work he had undertaken between 2012 and 2019, by which time he appeared to have contacts with whom he was able to commence the growing of cannabis and the manufacture of methylamphetamine. It should be accepted, however, that he came from a poor Vietnamese family, had difficulties in obtaining worthwhile employment in this country in the absence of English language skills, and as a result became involved in using and producing illicit drugs. None of this permits an affirmative finding that he had established himself as a person of good character. The judge was correct to find that he was entitled to a degree of leniency, not having any relevant criminal record. Otherwise, the subjective circumstances are best described as neutral. The judge correctly treated deterrence, personal and general, as important considerations.
There was no challenge to the findings of the trial judge as to the objective seriousness of the offending. As to the offence of the cultivation of cannabis, taking into account the possession of money reasonably suspected of being the proceeds of crime, it may be accepted that his involvement was slightly above the midrange of objective seriousness.
With respect to the possession of 427kgs of cannabis leaf, the judge identified this as "the supply of an earlier harvested crop based on possession". [11] Despite the quantity involved, there were a number of individuals concerned with the possession of the drug and the judge regarded the objective seriousness to be slightly below the midrange for that offence.
With respect to the objective seriousness of the conspiracy to manufacture methylamphetamine, the judge set out some 13 factors which she took into account in reaching the following conclusion: [12] "I do not accept the submissions made on behalf of the offender that the other two were the prime conspirators. The fact that they would travel to Sydney to a house arranged by the offender through Thi Vu, where he was responsible for all of the equipment when they left, and provided chemicals, places him, on a view most favourable to him, on equal footing with his Melbourne counterparts and at about the midrange of objective seriousness."
It is appropriate to adopt the course taken by the sentencing judge of imposing an aggregate sentence, which must be one of imprisonment in all the circumstances.
With respect to the cultivation of the cannabis plants, an offence carrying a maximum penalty of 20 years imprisonment, together with the proceeds of crime offence, the judge indicated that the appropriate individual sentence would be 6 years 6 months, with a non-parole period of 3 years 9 months. Making allowance for the 25% discount for the early guilty plea, the judge's starting point was 8 years 8 months. Thi Vu, his principal and active co-offender, was sentenced by Pickering SC DCJ on 7 April 2022, who indicated an individual sentence after a 25% discount of 5 years imprisonment, implying a starting point of 6 years 8 months.
Judge Pickering set out a similar account of the offence as that relied upon with respect to the applicant. That included Thi Vu consulting the applicant in relation to the purchase of the property, liaising with him as to the purchase of cannabis plants and other equipment, although there appears to have been more detail available to him as to the arrangements for the purchase of the cannabis plants than the material relied upon with respect to the applicant. Judge Pickering concluded that she was high in the organisation, although it "may not be that she was as high as [the applicant]", but there was no doubt that she was "very close to the top of whatever operation was here". He judged her to be "in the midrange of objective seriousness for an offence of this nature".
Thi Vu had accepted on a Form 1 that she had been knowingly involved in the manufacture of a small quantity of methylamphetamine and also that she had been in possession of suspected proceeds of crime involving an amount just over $100,000.
Two factors distinguish her case from that of the applicant. The first concerned her personal circumstances. Judge Pickering noted that she had been "very straight forward" in accepting her involvement in the matter, that she was a person of prior good character, that she was "clearly a smart, intelligent woman, with a strong upbringing with family support", leading to a conclusion that she was "genuinely remorseful" and that she had "prospects of rehabilitation and her risk of reoffending being lower, because she is realistic about why she was involved". He also described her as having "a solid education and employment history", with no alcohol or drug issues.
The other matter which was taken into account was the availability of information with respect to all those involved in the cultivation, other than the applicant, provided in a table prepared by Woodburne SC DCJ, in sentencing a previous co-offender, Xuan Dinh. Of a number of co-offenders who had already been sentenced, Pickering DCJ considered that the offender closest to Thi Vu who had been sentenced was Xuan Dinh, who had received a sentence of 3 years 11 months, with a non-parole period of 2 years 4 months. Mr Dinh had obtained at 25% discount, indicating a starting point of 4 years.
In this Court, counsel for the applicant described Thi Vu and the applicant as having had "similar roles". However, he accepted that there was no appeal ground alleging disparity, a fact which was no doubt explained by the far more favourable findings in relation to the subjective circumstances of Thi Vu.
Further, it appears that the information available to Pickering DCJ as to the organisation of the cultivation at Ballimore was more detailed than that provided to the sentencing judge in the present matter. In the applicant's case it is not possible to be satisfied that the applicant's role was at a higher level of a hierarchy than that of Thi Vu.
Bearing these factors in mind, and especially the need to make allowance for the favourable subjective findings with respect to Thi Vu, the disparity between the sentences imposed on each should be reduced. A starting point of 7 years 8 months, less a 25% discount, would give a head sentence of 5 years 9 months and, adopting the same proportion as the sentencing judge, a non-parole period of 3 years 6 months.
With respect to the deemed supply of cannabis leaf, the sentencing judge indicated an individual sentence of 3 years with a non-parole period of 2 years, but based on an assumption that there was a standard non-parole period of 10 years relevant to that offence. Although the sentence in fact imposed appears to bear little relationship to the standard non-parole period which was taken into account, the sentence is double that imposed on Thi Vu, in respect of which no such error was made. Having regard to the absence of evidence supporting a view that the applicant's role was greater than that of Thi Vu, particularly in respect of the offence of deemed supply, where the precise source of the harvested cannabis is not identified, and having regard to the superior subjective circumstances of Thi Vu, a starting point of 3 years imprisonment is appropriate, giving a discounted sentence of 2 years 3 months.
With respect to the conspiracy to manufacture methylamphetamine, the sentences of the co-offenders, Pham and Dong are not known, nor was there any conviction with respect to Thi Vu as a co-offender in that matter, although the Kemps Creek property was leased in her name.
Again, the sentence of 5 years, with a non-parole period of 3 years, is sufficiently low to suggest that the standard non-parole period believed to apply in fact had limited effect in the sentencing calculation. There being no other challenge to the findings of the judge with respect to that offence, the appropriate course is to indicate a sentence of 4 years 6 months, after discounting.
Having regard to the indicative sentences and the matters referred to above, I would propose the following orders: 1. Grant the applicant leave to appeal from the aggregate sentence imposed on him in the District Court on 27 May 2022. 2. Allow the appeal and set aside the sentence. 3. Resentence the applicant to a term of imprisonment of 7 years 8 months, with a non-parole period of 4 years 8 months. Note that the sentence commenced on 27 August 2020, so that the non-parole period will expire on 26 April 2025 and the sentence will expire on 26 April 2028. The first date upon which the applicant will be eligible for parole is 26 April 2025.
WALTON J: I agree with Basten AJA.
SWEENEY J: I agree with Basten AJA.

Endnotes

Tcpt, 22/04/22, p 9(40)-(45).
Drug Misuse Act, Sch 1, "cannabis leaf", Col 5.
R v Ohar (2004) 59 NSWLR 596; [2004] NSWCCA 83 at [84]-[85] (James J, Studdert and Dunford JJ agreeing).
[2023] NSWCCA 51 (Harrison and Fagan JJ agreeing).
Referring to Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39.
See generally, Minogue v Victoria (2018) 264 CLR 252; [2018] HCA 27 at [47]-[48] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ).
Sentencing judgment, p 8.
(2003) 212 CLR 629; [2003] HCA 14 at [58]-[59].
[2018] NSWCCA 99 at [118].
(2001) 206 CLR 267; [2001] HCA 21 at [25] (emphasis in original).
Sentencing judgment, p 4.
Sentencing judgment, pp 6-7. 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: 08 December 2023

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