Wei Zheng WONG v R

Regina v George (2004) 149 A Crim R 38 Regina v Morgan (1993) 70 A Crim R 368 Truong v R [2009] NSWCCA 41 CASES CITED : Bui v R [2008] NSWCCA 314 Nguyen v R [2009] NSWCCA 283 Pham v R [2009] NSWCCA 266 Phan v R [2010] NSWCCA 8

COUNSEL: P Linegar - Applicant P A Leask - Crown

SOLICITORS: S O'Connor - Applicant S Kavanagh - Crown

IN THE COURT OF CRIMINAL APPEAL 2008/19443

McCLELLAN CJ at CL HISLOP J BARR AJ

FRIDAY 25 JUNE 2010 Wei Zheng WONG v REGINA Judgment 1 BARR AJ: The applicant, Wei Zheng Wong, seeks leave to appeal against a sentence imposed upon him in the District Court. He pleaded guilty in the Local Court to an offence under s 23(2)(a) Drug Misuse and Trafficking Act 1985, namely that on 23 May 2008 at Cartwright he knowingly took part in the cultivation of a number of prohibited plants, namely 255 cannabis plants cultivated by enhanced indoor means, which was not less than the large commercial quantity. He was committed to the District Court for sentence. On 18 August 2009 Judge Sides of Queen's Counsel convicted him of the offence and set a non-parole period of 1 year and 9 months, commencing on 30 July 2009, and a balance of term of 2 years. The head sentence of 3 years and 9 months was imposed against a maximum sentence of 20 years and the non-parole period of 1 year and 9 months against a standard non-parole period of 10 years. 2 On 23 May 2008 police were watching a premises at Cartwright. They could hear fans operating inside the house and could smell cannabis. They spoke to the applicant, who was inside the house. In the house the police found, distributed throughout five rooms, 255 cannabis plants in various stages of growth, heat globes and shades and heat extractors. Also found were transformers and two large power boxes with numerous extension leads. Only one room in the house was set up for occupancy. That was where the applicant was living. Police arrested him and asked him about the cannabis plants. He said that he had only just seen them. He denied looking after them. He was taken to the police station and formally interviewed. He said that he had been living at the premises since December the previous year, a period of about 6 months, and was renting from a man he named. He said that when he moved into the house there were already plants there and the man told him that they were "grass". The man allowed the applicant to live there without charge on condition that he water the plants once a day. He said that he never fertilised the plants, operated the lights or cut the plants. He said that he had to leave the premises every Tuesday and Thursday night. 3 The applicant was interviewed by a Probation and Parole Officer for the preparation of a pre-sentence report. The reporting officer was satisfied that he was being less than frank about the part he played in cultivating the plants and was attempting to minimise his culpability. He continued to say that he had only watered the plants and that he did not know whose they were. He insisted that he had done nothing wrong. 4 In due course his Honour expressed himself satisfied beyond reasonable doubt that in addition to guarding all the plants in the house the applicant was watering and fertilising them. He was satisfied that the applicant's motive was greed. The reward he received was equivalent to the rent he would have had to pay for such accommodation. 5 The applicant presented a subjective case. There were letters of commendation from relatives and others. The applicant had not previously offended. His Honour accepted that the applicant was a person of prior good character. His Honour was satisfied that the applicant had a sound work history and had family support. 6 His Honour noted, however, that the applicant had exaggerated or prevaricated about difficulties he claimed to have had in his family life. In view of his general lack of candour, particularly because of the way in which he tried to play down his culpability, his Honour expressed himself doubtful about the applicant's claims of remorse. 7 His Honour noted the plea of guilty in the Local Court and allowed a discount of 25 per cent for its utilitarian value. 8 The applicant was born in Malaysia and was 22 years old at the time of sentence. He had been educated in Hong Kong. After coming to Australia in 2007 he had lived with his mother and stepfather but after relations became strained he moved to the premises he was occupying at the time of the offence.

9 The only ground of appeal argued was that the sentence was manifestly excessive. Essentially the submission was that the very length of the sentence bespoke error. Reference was made to a number of unrelated cases and the Court was invited to compare the facts of those cases with the facts of this case and to compare the resulting sentences favourably to the applicant's case. The Court has on a number of occasions stated how little assistance is to be received by such comparisons. See generally Regina v George (2004) 149 A Crim R 38 at 47 and Regina v Morgan (1993) 70 A Criminal R 368. The Court was referred to the recent sentence cases of Truong v R [2009] NSW CCA 41, Bui v R [2008] NSW CCA 314, Nguyen v R [2009] NSW CCA 283 and Pham v R [2009] NSW CCA 266. There was also discussion about Phan v R [2010] NSWCCA 8 relied on by the Crown.

10 For my part I have received no assistance from an examination of the cases cited.

11 Reference was also made to statistics of sentences published by the Judicial Commission. It was submitted that of 41 cases recorded only 61 per cent received prison sentences. Seventeen per cent received periodic detention and the remainder other non-custodial alternatives. It was submitted that the applicant's non-parole period was greater than the most common non-parole periods of 12 months and 18 months respectively. The head sentence was also submitted to be high in the spectrum. 12 The Court ordinarily approaches submissions based on statistical grounds with some caution. In this application there is a further reason why referenced to statistics is unhelpful. In 2008 a special regime was introduced to provide for the sentencing of offenders who cultivate plants by enhanced indoor means. Because that change happened so recently there are so few examples of sentences for cultivation by that method that it is impossible to discern any established range of custodial sentences. 13 It is sufficient, I think, to say that the material referred to does not demonstrate that the sentence appealed from fell outside any established range, either as to head sentence nor as to non-parole period. 14 The appropriate way to consider any submission about manifest excess is to gather the salient facts of the case and assess them by reference to the maximum applicable sentence and the standard non-parole period. The maximum sentence was 20 years imprisonment. That resulted from the fact that there were more than 200 plants, which for plants cultivated by enhanced indoor means, constituted a large commercial quantity. The standard non-parole period was imprisonment for 10 years. 15 As found by his Honour, the applicant watered and fertilised the plants as well as guarding them for a period of about six months until the day of his arrest. 16 In this Court reliance was based upon psychological evidence of the likely effect of incarceration upon the applicant. iI was submitted that a periodic sentence or other lesser sentence should have been imposed, given the applicant's psychological state. 17 It was submitted that the applicant was unlikely to re-offend and was a person of prior good character. Those submissions may be accepted. It was also submitted that he had shown remorse but the Court cannot accept that submission because his Honour's finding was directly to the contrary. 18 Because of the plea of guilty and other features his Honour concluded that the offence fell below the mid range of objective seriousness and no criticism has been made of the conclusion. In view of the fact that this would be the applicant's first custodial sentence his Honour decided to extend the available period of parole at the expense of the non-parole period and no complaint is made about that. 19 It seems to me, bearing in mind, all these matters, that the offence called for a substantial custodial period, not least because of the need to deter persons from committing offences of the same kind. It seems to me that the head sentence and the non-parole period fell within the proper grounds of his Honour's sentence discretion. I am not satisfied that error has been shown. 20 I would grant leave to appeal but would dismiss the appeal. 21 MCCLELLAN CJ AT CL: I agree with Justice Barr.

23 McCLELLAN CJ AT CL: The orders of the Court are those made by Justice Barr.

FOOTNOTE: When the Court gave judgment in this appeal on 25 June 2010 it made an order quashing the conviction of the appellant of an offence under s 70 Electricity Supply Act, 1995. That order was made in error and the Court has vacated it. Accordingly the appellant's conviction of that offence and its consequences stand.

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.