R v Pham [2006] NSWCCA 288 (21 September 2006)

CITATION: Regina v Pham [2006] NSWCCA 288

FILE NUMBER(S):

2006/965

HEARING DATE(S): 25/8/06

DECISION DATE: 21/09/2006

PARTIES:

Regina (Appl)

The Danh Pham (Resp)

JUDGMENT OF: Grove J Kirby J Hislop J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0087

15/11/1033

LOWER COURT JUDICIAL OFFICER: Norrish DCJ

COUNSEL:

P Barrett (Crown/Appl)

M Craigie SC (Resp)

SOLICITORS:

S Kavanagh (Crown/Appl)

LAC (Resp)

CATCHWORDS:

Criminal Practice & Procedure

Crown appeal

supply cannabis leaf

gave assistance

given bail

8 months later charge of cultivation of cannabis commercial quantity

allowance for plea and assistance

assistance no relevance to second charge

sentence inadequate

re-sentence.

LEGISLATION CITED:

Drug Misuse and Trafficking Act 1985

Crimes (Sentencing Procedure) Act 1999

DECISION:

(1) Appeal allowed

(2) The sentence by his Honour in respect of count 1 confirmed, namely, 1 year and 8 months (commencing 20.6.05 and expiring 19.2.07)

(3) The sentence by his Honour in respect of count 2 is quashed and, in lieu thereof, there should be a sentence of 4 years imprisonment from 20.6.06 to 19.6.10, with a non parole period of 2 years from 20.6.06 to 19.6.08. The earliest date on which he will be eligible for release to parole is 19 June 2008.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

2006/965

GROVE J

KIRBY J

HISLOP J

Thursday 21 September 2006

REGINA v The Danh PHAM

Judgment

1 GROVE J: I agree with Kirby J.

2 KIRBY J: This is an appeal against sentence by the Crown. The Danh Pham (the respondent) pleaded guilty to two offences, namely:

Count 1: That, on 21 September 2004, he supplied a prohibited drug, cannabis leaf (21.89 kg), contrary to s25(1) and s32(1)(h) of the Drug Misuse and Trafficking Act 1985. (maximum penalty: 10 years imprisonment and/or $220,000 fine.)

Count 2: That, on 26 May 2005, he knowingly took part in the cultivation of not less than a commercial quantity of a prohibited plant (309 cannabis plants), contrary to s23(2)(a) of the Drug Misuse and Trafficking Act 1985. (maximum penalty: 15 years imprisonment and/or $385,000 fine.)

3 On 16 March 2006, Norrish DCJ sentenced the respondent as follows:

Count 1: Imprisonment for a fixed term of 1 year and 8 months to commence 20.6.05 and expire 19.2.07.

Count 2: Imprisonment for 2 years and 3 months consisting of a non parole period of 8 months (20.6.06 to 19.2.07), and an additional term of 1 year and 7 months (20.2.07 to 19.9.08).

4 There was therefore a partial accumulation of each sentence so that count 2 commenced one year after the sentence began. The total term was 3 years and 3 months with a non parole period of 1 year 8 months.

5 The Crown asserts that the sentences were manifestly inadequate. A Notice of Appeal was filed on 28 April 2006. It was served on 1 May 2006, six weeks after sentence.

6 Before considering the complaints made by the Crown, I should describe the circumstances giving rise to each offence.

The Offences.

7 On 21 September 2004, the police were conducting surveillance upon a Mr Allman. Mr Allman drove to the respondent's home at Kingsgrove. Mr Pham was waiting for him on the front lawn. Together they walked to the garage. Mr Allman emerged from the garage a short time later carrying a number of cardboard boxes. The boxes were loaded into his vehicle. The process was repeated three times, Mr Pham accompanying Mr Allman each time. Six boxes were loaded into the vehicle.

8 Mr Allman then drove off. The police followed. He was observed retrieving one pound of cannabis from one of the cardboard boxes and supplying it to another individual in a resealable bag. He was then arrested. The police recovered the one pound of cannabis from the buyer. They also seized the six boxes which contained 48 one pound lots of cannabis in resealable bags, a total of 49 pounds (21.89 kgs).

9 The police later executed a search warrant upon Mr Pham's home at Kingsgrove. They recovered a number of items that were linked to the cardboard boxes, including similar tape, boxes and packaging. They also found within the main bedroom $119,500. Mr Pham was cautioned. He denied any knowledge of the cannabis. He was not, at that stage, arrested.

10 On 29 September 2004, the police returned to Mr Pham's home. He was observed arriving home with a black leather briefcase. A further search was conducted. The briefcase contained $10,000 in cash. He was taken to the Hurstville Police Station and interviewed. Again, he denied knowledge of the supply of the cannabis. He said that the money found by the police came from gambling, loans and savings. He was then charged and later released on bail.

11 Mr Pham, at this point, volunteered certain information. It was the subject of a confidential exhibit (Exhibit E) and was described by police as "significant". It was valuable intelligence provided at a time that Mr Pham sought nothing in return. The police acted upon it and it was found to be accurate.

12 Mr Pham gave evidence in the sentence proceedings before Norrish DCJ. He said he had been asked by a person "Ben" to hold what turned out to be cannabis at his home. It was to be collected by a person Mr Allman. He took small packages from a garbage bag and placed them in cardboard boxes and then gave them to Mr Allman as instructed. He said that he had been promised $150 for this service. Norrish DCJ, however, rejected this account. He found Mr Pham a most unimpressive witness. He attempted to minimise his role. His Honour was satisfied that he well knew that he was providing Mr Allman with cannabis.

13 Moving to the second count, Mr Pham purchased a suburban home at Earlwood in August 2004. At 7.45 am on 26 May 2005, the police executed a search warrant upon these premises. The door was answered by Dinh Mam Bui, a 63 year old man, who said he was the tenant of Mr Pham.

14 The police immediately noticed a strong smell of cannabis. It was soon apparent that each of the four bedrooms had been set up as a sophisticated hydroponic plantation for cannabis plants at various stages of maturity. There were 309 plants under large heat lamps and reflectors. The equipment included 31 transformers and 31 heat lamps. The electrical main had been diverted so that the enormous consumption of electricity would not alert authorities. Mr Bui was arrested.

15 An examination of the hydroponic equipment was then undertaken. Six of the heat lamps taken from three different bedrooms had Mr Pham's fingerprints upon them. On 20 June 2005, he was arrested. He acknowledged that he owned the premises. He said he collected the rent every two weeks, but never went inside. He did not know that his house was being used to cultivate cannabis. Indeed, he said that he had never seen cannabis before. He gave an elaborate explanation as to how his fingerprints may have been found on the reflector lamps.

16 Having pleaded guilty, Mr Pham gave evidence. His account changed. He said that he had permitted Bui to grow the cannabis on the property and, indeed, had bought a few things like light bulbs for him at his request. It had been agreed that he would be given a "little bit" of cannabis for his own use.

17 Again Norrish DCJ found Mr Pham a most unimpressive witness. He concluded that his version was totally false. It was Mr Pham's plantation and Mr Bui was under his direction (ROS 17).

The Sentencing Remarks.

18 The sentencing Judge, having described each offence, reviewed the sentences that had been imposed upon each co-offender. In respect of count 1, Mr Allman was sentenced by Sorby DCJ upon the basis that he was "the delivery man" for the drugs which were ultimately found in his possession (21.89 kgs). He had pleaded guilty at the earliest opportunity. His Honour imposed a term of 2 years imprisonment with a non parole period of 13 months. In that context, Norrish DCJ said this: (ROS 11)

"The facts of the matter are that, in assessing this matter concerning this prisoner, it does not appear to me that the objective circumstances of this prisoner, compared to those of Mr (Allman), are equal, putting aside any equality or otherwise in the subjective circumstances. Whilst Mr (Allmann) was described as a delivery man and apparently sentenced accordingly, it is quite clear that the prisoner was at least warehousing the drugs in question and had a significant role in delivering the drugs to Mr (Allman), or having him pick them up from the prisoner's home to be precise, and packaging the drugs."

19 In respect to count 2, the co-offender Mr Bui was sentenced by Knox DCJ on 6 December 2005, upon the basis that he had been employed to cultivate the crop. He was, by that time, 64 years old. He was sentenced to a term of imprisonment of 15 months, involving a non parole period of 7½ months. However, Norrish DCJ, as I will explain, misread the sentence as a 15 month non parole period with an additional term of 7½ months. When the error was drawn to his attention, his Honour adjusted the sentence imposed upon Mr Pham, as I will explain. According to the Crown, that adjustment contributed to the inadequacy of the sentence ultimately imposed. I will return to this aspect shortly.

20 His Honour, noting that Mr Bui had been sentenced for tending the crop, said this: (ROS 17/18)

"I have no trouble whatsoever in concluding that the prisoner was directing Mr Bui in his work. Mr Bui, on the evidence available to Judge Knox, bearing in mind I have been provided with the remarks on sentence, had neither the wherewithal or the financial means to be able to conduct the cultivation. The lies the prisoner told to investigating police about the matter and the way in which he sought to minimise his role when he gave evidence before me strengthens me in the conclusion that I have reached in that regard."

21 His Honour then referred to the sentence he mistakenly believed had been imposed upon Mr Bui, adding this: (ROS 18)

"That having been said the sentence imposed on Mr Bui is, as I say, relevant. But a greater sentence must be imposed on this prisoner than that imposed on Mr Bui, given his greater role, and a greater sentence must be imposed to recognise the significant aggravating factor that the prisoner was on bail for a serious drug supply offence at the time that he committed this offence. This was an offence committed over a period of time involving some planning and organisation on the prisoner's part and, of course, some financial investment in organising the equipment for the cultivation."

22 Later in his remarks, his Honour said this: (ROS 24)

"At the end of the day the facts of the matter are that the prisoner engaged himself in substantial criminal activity for profit."

23 His Honour also dealt with the respondent's subjective case. He was a man aged 31 years. He had been born in Vietnam. He had a difficult early life. His parents had died when he was young. He had escaped from Vietnam at the age of 13 years with his eldest brother and thereafter spent six years in a refugee camp. He had ultimately gone to the Philippines and thence to Australia. He met his wife in the Philippines and they had been together for 11 years. They had two children. He arrived in Australia in 1995 and is now a citizen. The account Mr Pham gave, incidentally, where he described his early life to Dr Tran, was somewhat different from the account given to the Probation and Parole Service (which the sentencing Judge used), although the differences may be the result of language difficulties. He said, for instance, he left Vietnam with a neighbour (not his brother) and spent four years in a refugee camp (not six).

24 Since arriving in Australia, Mr Pham has worked in various unskilled jobs. He told Dr Tran that he smoked cannabis at the weekend, but was not addicted to either drugs or alcohol. He did, however, gamble. Dr Tran ultimately described him as "a pathological gambler". Since his incarceration on 20 June 2006, Mr Pham has used his time in gaol well. He was described as a "sincere and diligent worker". He has undertaken courses to improve his English.

25 His Honour then dealt with the discounts that were appropriate for having pleaded guilty, and having provided assistance. The plea to count 1 was entered when he was arraigned in the District Court (29 April 2005). His Honour believed that a 20 percent discount was appropriate. In terms of assistance, his Honour considered the criteria in s23(2) of the Crimes (Sentencing Procedure) Act 1999 in evaluating that assistance. It was timely, useful, truthful and of significant benefit to the administration of justice. There was no suggestion that he would give evidence. Neither he nor his family had suffered hardship. His Honour thought, having referred to R v Cartwright (1989) 17 NSWLR 243, R v Gallagher (1991) 23 NSWLR 220 and R v Chu, per Spigelman CJ (unreported, NSWCCA, 16.10.98), that a 30 percent discount was appropriate.

26 The plea in respect of count 2 had been entered in the Local Court on 24 October 2005. The calculation of the appropriate discount was, however, more complex. His Honour said this: (ROS 16/17)

"In relation to the second charge in time the prisoner is entitled, in my view, likewise to a discount for the cooperation previously given. But it is not as great in the sense that it pre-dates the commission of this offence which shows something of a cynical attitude on the part of the prisoner when he committed the second offence. It therefore cannot be regarded relevantly as timely. However, of course, the cooperation as I said was significant. Again it related to an unrelated offence.

I do not propose to go through the criteria, which are not exclusive of course, set out in section 23(2). The discount should however be less in relation to the second offence given the relationship of the offence in time to the cooperation. This was, as I understood it, accepted in the submissions available to me from the counsel for the accused.

In my view the discount, taking all relevant matters into account for that cooperation, should be on of 25 percent. This 25 percent discount is upon the sentence arrived at having given the prisoner a discount of 25 percent for the utilitarian benefit of the plea in accordance with the guideline judgment of Thomas and Houlton. The discount is calculated in accordance with what is set out in the decision of the Court of Criminal Appeal in Regina v NP [2003] NSWCCA 195, as was submitted by counsel for the accused."

27 According to the Crown's calculation, his Honour did not allow the full 50 percent. Rather, he discounted for overlap, applying an overall discount of 43.75 percent. His Honour identified in respect of count 2 a starting point of 5 years which, after discount, reduced to 2 years and 10 months with a non parole period of 12 months (reflecting a finding of special circumstances).

28 Having concluded his remarks, counsel for Mr Pham drew attention to the error in respect of the sentence of Mr Bui. His Honour then adjusted the starting point for Mr Pham, reducing it from 5 years to 4 years. He then applied the discount, saying this: (ROS 26)

" ... adjusting the staring point, bearing in mind there is greater criminality on the part of the prisoner as I have found it, from 5 years to 4 years. This would leave with the discounts I have applied a total sentence of 2 years 3 months. What I propose to do is to adjust the non parole period from 1 year to 8 months. Do you have anything to say in relation to that?"

29 Nothing was said by the Crown in opposition to that course.

The Crown Submissions.

30 The Crown identified two suggested errors, namely:

Ground 1: The individual sentences and the effective sentence are manifestly inadequate because his Honour gave an excessive combined discount for assistance and the pleas.

Ground 2: The sentence for Count 2 and the effective sentence are manifestly inadequate because his Honour insufficiently accumulated the sentences, gave excessive weight to parity with the sentence for the co-offender Bui and made too great an allowance for special circumstances.

31 In support of ground 1, and acknowledging that the intelligence provided by Mr Pham was of "great significance", the Crown submitted that the discount of almost 50 percent on count 1 and 43 percent on count 2 was unjustified. The discount served three purposes, as identified by Gleeson CJ in R v Gallagher (supra): (227/228)

"... There is what might be called the utilitarian consideration involved in encouraging persons to provide information which will permit the apprehension and successful prosecution of other offenders. ... Other considerations that enter into the matter include the remorse or contrition which may be demonstrated in a given case by co-operation with the authorities, and the more difficult time which an informer is likely to have during the period of incarceration as a result of having co-operated. ... It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of interrelated considerations."

32 Here, there was no evidence of hardship. There was no need for further assistance. The assistance provided was all past assistance. According to the Crown, the comments by the Court in R v Sukkar [2006] NSWCCA 92 were apposite. In that case, Latham J said this:

"54 While there is no fixed tariff for assistance to the authorities, discounts customarily ranged between 20 percent and 50 percent. There have been comparatively rare cases where a discount in the order of 55 percent or 60 percent has been given. Generally speaking however, a discount of 50 percent is regarded as appropriate to assistance of a very high order. No doubt, that is in part a reflection of the principle that a discount for assistance must not produce a result which is disproportionate to the objective gravity of a particular offence and the circumstances of a particular offender."

33 Her Honour added:

"56 Bearing these considerations firmly in mind, I regard a discount of 45 percent as excessive in the circumstances of this case. The respondent's assistance could not, in my view, be characterised as assistance of a very high order. Whilst the respondent's evidence in the prosecution of Jeff and Eric contributed to the case against them, it was but part of the material upon which their convictions were based. As I have already noted, there was little in the way of contrition (expressions of remorse to the psychologist and to the Probation and Parole officer were of dubious value), and no evidence of any personal risk to the respondent or to any member of his family. There was no evidence of any hardship occasioned to the respondent, arising directly out of the provision of assistance to the authorities in the Netherlands. His Honour was being unduly generous to the respondent in assuming that such a risk necessarily resulted from the respondent's assistance. His Honour's approach to this issue on 15 July 2005 was, in my opinion, the correct one. I consider that a composite discount of 35 percent would have been appropriate to the recognition of both the respondent's plea of guilty and his assistance to the authorities, such as it was."

34 Howie J agreed with these comments (as did McClellan CJ at CL), adding this:

"3 As Latham J points out the discount for assistance reflects a number of considerations that impact upon the sentence to be imposed upon the offender. One factor has traditionally been that a person giving assistance will normally be at risk within the gaol environment and, therefore, may need protection for a substantial part, if not all, of the term of the sentence. When this Court has expressed the view that the appropriate range for the plea of guilty and assistance is between 20 and 50 per cent, that range has been formulated on the basis that some reduction was due, not only to encourage others to give information to the authorities but also 'to compensate them for the more difficult conditions under which they will inevitably have to serve their sentences as a result of having given that information', see R v Cartwright (1989) 17 NSWLR 243 at 250."

35 His Honour added:

"5 It seems to me that the courts should now acknowledge the reality of the situation and reduce the range of discount to reflect the fact that one of the bases of the discount is no longer generally applicable. In my opinion discounts for a plea and assistance of more than 40 per cent should be very exceptionally, if at all, granted in a case where there is no evidence that the offender will spend the sentence, or a substantial part of it, in more onerous conditions than the general prison population. It should now be accepted that an offender who has provided assistance will not necessarily be disadvantaged in the prison system and, if the offender wishes to assert otherwise, he or she should lead evidence of that fact.

6 In the present case there was simply no evidence that the respondent was at risk by reason of the assistance he had given or that the assistance would have impacted at all upon the manner in which he would be required to serve his sentence. There was no evidence placed before this Court in answer to the Crown appeal to show that in any way the respondent had been disadvantaged by the fact that he had given assistance. The Judge erred in the discount given to the respondent for his plea and assistance and one of the reasons is because he made the unjustified assumption that imprisonment would be more onerous for the respondent because of the assistance provided.

(emphasis added)

36 In support of ground 2, the Crown complained, in essence, about three things. First, it said that the accumulation between counts 1 and 2 was inadequate. The aggravating circumstance of a breach of the bail given in respect of count 1 made full accumulation appropriate. Secondly, the sentence on count 2 was, itself, manifestly inadequate. Mr Pham had established a sophisticated commercial operation, involving planning and the promise of significant rewards at a time when he was on bail. Thirdly, there was no parity between Mr Pham and Mr Bui, such that the sentence in respect of Mr Bui provided a benchmark for sentencing Mr Pham. Mr Bui was a worker tending the crop. Mr Pham owned the premises, the crop, and directed Mr Bui. He was the principal. The adjustment made at the end of the sentencing remarks, according to the Crown, reflected the disproportionate importance accorded by his Honour to Mr Bui's sentence.

The Respondent's Submissions.

37 Counsel for the respondent emphasised the caution that should be exercised on a Crown appeal (R v Wall [2002] NSWCCA 42, per Wood CJ at CJ at para [70]). The discounts used by his Honour were within the usual range. The assistance was indeed significant, as the evidence of the detective in charge of the case made clear. It was assistance given in respect of unrelated offences, where nothing was sought in return. The primary concern, according to the respondent, must be the benefit to the administration of justice, in encouraging people with information to come forward. Here the benefits were substantial.

38 So far as ground 2 was concerned, the Crown made no protest at the time his Honour made the reduction. Pearce v The Queen (1998) 194 CLR 610 made it clear that there was a considerable discretion in the sentencing Judge as to the degree to which sentences may be accumulated. In all the circumstances, it was urged that the Court should not intervene.

Was the Sentence Inadequate?

39 Count 1 involved the supply of cannabis in an amount just short of a commercial quantity (21.89 kgs cf 25 kgs). The offence was committed on 21 September 2004. Mr Pham was in possession of a significant amount of cash ($119,500). When he was arrested on 29 September 2004, he was again in possession of significant amount of cash ($10,000). The cash was the subject of further charges which had not been dealt with at the time these sentences were imposed. His Honour made no specific findings in relation to the cash.

40 Was there error in respect of count 1? The starting point for the term selected was lenient but within the range. The allowance for assistance was indeed generous and arguably in error, having regard to R v Sukkar (supra). However, it was very significant intelligence. On balance, exercising restraint on a Crown appeal, I believe this Court should not interfere with the sentence on count 1.

41 Count 2, however, is in a different position. It was, as his Honour observed, a serious and sophisticated commercial undertaking. It involved significant planning and equipment. The electricity supply had been diverted in order not to arouse suspicion. It was aggravated by the fact that it was committed whilst on bail. In R v Richards (1981) 2 NSWLR 464, Street CJ said this: (at 465)

"The community must be protected as far as possible from further criminal activities by persons who take advantage of their liberty on bail to commit further crimes. The only means open to the criminal courts to seek to provide this protection is to pass severely deterrent sentences upon those who thus abuse their freedom on bail. This will ordinarily involve a significant accumulation of the sentence for any subsequent offences on top of the sentence proper to be passed for the original offence. It must be made abundantly plain that persons at large on bail cannot expect to commit further crimes 'for free'. On the contrary, they will receive salutary penalties for the very reason that they have abused their freedom on bail by taking the opportunity to commit further crimes."

(emphasis added)

42 In R v Jones (unreported, NSWCCA, 30.6.94) Finlay J (Badgery-Parker and Carruthers JJ agreeing) said this:

"When offenders are given conditional liberty - be it on parole or when they are subject to periodic detention orders, community service orders, or on recognisances to be of good behaviour or, indeed, on bail for alleged offences - the commission of additional offences is a serious matter."

43 Whilst the fact that a person is on bail is often used as a basis for accumulating sentences (R v Moffitt (1990) 20 NSWLR 114, per Badgery-Parker J at 128), here, I believe the partial accumulation by his Honour was open. The sentence in respect of the co-offender Mr Bui, was relevant, but not determinative. There was no parity between them, as his Honour recognised. They had different roles. Mr Pham was the principal and Mr Bui his worker. Yet the adjustment made by his Honour at the end of his remarks gave Mr Bui greater significance than was justified. There was no warrant for dropping the starting point from 5 years to 4 years.

44 The sentence ultimately imposed in respect of count 2, after adjustment for special circumstances, involved a non parole period of 8 months (coinciding, incidentally, with the balance of the term in respect of count 1). Such a short term of actual imprisonment for a significant commercial enterprise did not adequately reflect the serious nature of the offence (Power v The Queen [1974] HCA 26; (1974) 131 CLR 623; Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525). I believe that the sentence imposed in respect of count 2 was manifestly inadequate and there is a need to resentence.

45 There was a further difficulty which was raised with counsel in the course of argument. It was not one identified by the Crown in its submissions. It is, nonetheless, relevant to the issue of resentence. Why should there be any discount for assistance in respect of count 2? As set out above, Mr Pham provided assistance on the day of his arrest in respect of count 1, being 29 September 2004. He was then released to bail. There was no suggestion of continuing assistance. He had bought the property in Homer Street, Earlwood, the month before. It was said that Mr Bui began occupation of that property in March 2005. The hydroponic plantation was discovered by the police when they executed the search warrant on 26 May 2005.

46 In these circumstances it was quite wrong, in principle, in my view, to regard the assistance as having any relevance to the later offence. To do so would be to provide a licence to the offender to commit a further offence whilst on bail, where he could expect a discounted penalty.

Resentence.

47 The only aspect of the sentence imposed by his Honour that needs to be addressed, in my view, is the term imposed in respect of count 2. Approaching that issue conservatively, it being a Crown appeal, and allowing a discount of 25 percent for the early plea, a sentence of four years is appropriate. I would, for the reasons given by his Honour, find special circumstances and fix a non parole period of two years.

Orders.

48 The orders I propose are as follows:

1. Appeal allowed.

2. The sentence by his Honour in respect of count 1 confirmed, namely, 1 year and 8 months (commencing 20.6.05 and expiring 19.2.07).

3. The sentence by his Honour in respect of count 2 is quashed and, in lieu thereof, there should be a sentence of 4 years imprisonment from 20.6.06 to 19.6.10, with a non parole period of 2 years from 20.6.06 to 19.6.08. The earliest date on which he will be eligible for release to parole is 19 June 2008.

49 HISLOP J: I agree with Kirby J.

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LAST UPDATED: 21/09/2006