R v Nguyen [2004] VSCA 115 (17 June 2004)

Last Updated: 25 June 2004

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 341 of 2003

THE QUEEN
v.
DUNG MINH NGUYEN

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JUDGES:	CHARLES, CHERNOV and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 June 2004
DATE OF JUDGMENT:	17 June 2004
MEDIUM NEUTRAL CITATION:	[ 2004] VSCA 115

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Criminal law - Sentence - Cultivation of 137 marijuana plants - Theft of electricity - Finding that crop intended for onward commercial distribution - Whether finding open - Total effective sentence 4 years 1 month with 3 years non-parole period reduced to 3 years 1 month with 21 months non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G. Cannon	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr M.E. Dean, S.C. with Ms N.T. Nguyen	Michael J. Gleeson & Associates

CHARLES, J.A.:

1. I will invite Eames, J.A. to give the first judgment.

EAMES, J.A.

2. This is an application for leave to appeal against sentence. The applicant pleaded guilty to one count of cultivating a commercial quantity of cannabis, for which the maximum penalty under s.72A of the Drugs Poisons and Controlled Substances Act 1981 is 25 years' imprisonment and a fine of $300,000. He also pleaded guilty to theft of electricity contrary to s.74 of the Crimes Act 1958, which carried a penalty of 10 years' imprisonment. On 28 November 2003 a judge of the County Court sentenced him on the first count to four years' imprisonment and to three months on the second count, one month of which was directed to be served cumulatively. The total effective sentence was four years one month's imprisonment and a non-parole period of three years was fixed. Two days' pre-sentence detention was declared.
3. The cultivation involved 67 mature marijuana plants and 70 smaller ones, which were being grown at the home of the applicant by means of a sophisticated hydroponic system. The theft of electricity involved some $3,836.
4. The applicant has appealed on three grounds:

1. The learned sentencing judge erred in sentencing the applicant on the basis that he was concerned in the onward commercial movement of the cannabis.

2. The learned sentencing judge erred in ordering that the applicant serve three years' imprisonment before becoming eligible for release on parole.

3. In all the circumstances the sentence is manifestly excessive.

5. As to ground 1, it was contended that the judge erred by making a finding that it was not open to him to make, beyond reasonable doubt, namely, the finding that the applicant had grown the crop for onward commercial movement. That finding involved rejection of the applicant's evidence.
6. The applicant gave evidence on the plea that he had spoken to a group of Vietnamese and non-Vietnamese people at the casino who suggested to him that they would help him set up a marijuana crop and then would cultivate it when ready, leaving him with half the crop for his personal use. The applicant professed not to know the names of any of these people, save for the name "Cuong" as to one of them. He said that he gave his house key to that man and when he arrived home one day the equipment had been set up, and the electricity supply had been tampered with so as to obtain electricity illegally. In cultivating the crop he just followed written instructions left for him, he said. The applicant said that he had not known it was illegal to cultivate the drug, a proposition about which his Honour, not surprisingly, was sceptical.
7. On behalf of the applicant, Mr Dean submitted that the finding about onward commercial movement was treated by the judge as an aggravating circumstance and that being so it was required to be proved beyond reasonable doubt: see R. v. Storey[1]. It is, of course, the case that the very offence to which he pleaded guilty has as an element that a commercial quantity of the drug must be involved, but, in my view, the finding made here was intended by his Honour to signal that there was a particular aggravating feature in the intended commercial use of the crop in this case. It may well have been that his Honour was merely saying that it was not so much the fact that it was a commercial quantity that concerned him but rather it was the applicant's denials of his involvement in the crop as a commercial enterprise, and of the illegality of the venture, that his Honour treated as the aggravating features. His Honour did not spell out what precise significance he attached to this finding. The applicant had pleaded guilty to the offence and thereby accepted that the crop involved a commercial quantity of the drug. He was not charged with trafficking the drug. Whilst it would be relevant for the judge to have regard to the motive being a profit-making one, it would be an error to sentence him for what amounted to the basis of the offence of trafficking: see R. v. Kingston[2]. I do not conclude, however, that his Honour made that error.
8. Although much attention was directed to this ground and, in particular, to the question whether it was open to the judge to be positively satisfied on the question of onward commercial movement merely by virtue of his rejection of the applicant's evidence, I am satisfied that it was open to the judge to be satisfied beyond reasonable doubt as to the applicant's knowledge of the proposed commercial movement of the crop. The number of plants involved, the circumstances admitted by the applicant as to the origin of the cultivation proposal, the sophisticated process adopted and also the finding of scales on his premises, when coupled with what his Honour regarded as false denials, would have permitted that finding. Thus, I would not uphold the first ground of appeal. However, even allowing for that finding, and for the apparent importance attributed to it, I am not persuaded that in the circumstances the finding was one which ought to have produced such a significant sentence for a first offender, who had pleaded guilty at an early opportunity and who had a significant number of mitigatory factors weighing in his favour. That conclusion is relevant to consideration of the other grounds of appeal and I will address those grounds briefly.

Ground 2

9. The fact that the learned sentencing judge gave no reasons for fixing what was in all the circumstances a long non-parole period does not necessarily demonstrate error, but it does invite close scrutiny of the sentence[3]. It also suggests the possibility that too much weight was given to factors adverse to the applicant and insufficient weight was given to mitigatory factors relevant to the non-parole period, in particular factors relevant to his prospects of rehabilitation: see R. v. VZ[4].
10. Although this ground was argued separately, it was also treated as a particular of ground 3 so I will turn to that ground.

Ground 3

11. His Honour made a number of favourable findings as to important mitigatory factors. His Honour noted the pleas of guilty and that the applicant, who was aged 37 at the time of sentencing, had led an apparently unblemished life, characterised by hard work. His Honour held that the quantity of plants put this offence "at the lower end of the scale". He accepted that the applicant had performed charitable work in the past. He accepted that his involvement in this criminal enterprise arose after his clothing business had failed, because his main customer out-sourced its work overseas. That had been followed by marriage breakdown, by depression and, as his Honour accepted, the applicant became addicted to marijuana and abused alcohol.
12. Although his Honour did not accept some of the opinions expressed by psychologist Dr Christopher Wong in his report tendered on behalf of the applicant - in particular, his opinion as to the probable degree of involvement of the applicant in the offending - it seems that his Honour did otherwise accept the history stated in the report. That recounted the applicant's attempts to flee Vietnam in the early 1980's and his apprehension by authorities and consequent twelve months imprisonment. A later, harrowing, voyage brought him to Hong Kong, where he remained in a refugee camp for ten years before being sponsored to Australia in 1994. He had there married and later had two children, now aged eleven and eight years, the younger child having been in his care and control at the time of these offences, but now returned to his mother's care.
13. In Australia the applicant worked from home, making clothes as a piece worker, for some five years. He worked long hours, seven days a week. From about 2000, with the failure of his business, an apparent gambling addiction and excessive alcohol and marijuana consumption, his marriage failed and his life began to unravel.
14. Dr Wong diagnosed that he was suffering elevated depression, of longstanding origin. He had low intelligence, upon testing. Dr Wong described him as exhibiting genuine feelings of remorse, and being contrite and ashamed, important findings but ones to which the judge made no reference in his brief sentencing remarks. His remorse was also attested to by his parish priest in a character statement tendered on the plea. That witness added that he was confident that these proceedings had taught the applicant a good lesson. Dr Wong reported that the applicant had ceased the use of alcohol and cannabis (although as to the latter I note that in his evidence before the judge the applicant said he was still using cannabis). He had a close relationship with his eight-year-old son.
1. 15 It seems to me that all of those factors ought to have suggested that the prospects of rehabilitation of the applicant were good, but his Honour made no finding as to his rehabilitation prospects. Those prospects, in my opinion, are confirmed by the fact that the applicant had been on bail for 19 months without further offending.
16. It seems likely, to me, that so much attention was focussed on the genuineness, or dishonesty, of the applicant's account of his awareness and involvement in the offence that factors weighing in his favour in sentencing were undervalued. The applicant can hardly complain if, by advancing an unbelievable version of events, he harmed his prospects on sentencing, but nonetheless he is entitled to have a proper evaluation of those facts which are found to weigh in his favour and it seems to me that his sentence reflects the fact that he did not gain that appropriate evaluation.
17. There is no doubt, as this Court has said on many occasions, that this is a serious offence, deserving imprisonment, but in all the circumstances I consider that the complaint that the sentence was manifestly excessive has been made out, both as to the head sentence on the main count and as to its relationship with the non-parole period overall.

Conclusion

18. In my view, error has been shown in the sentence and the application should be allowed.
19. In re-sentencing the appellant I would have regard to the many factors raised in the written submission of Mr Dean. Mr Dean does not seek to contend that cultivation of commercial quantities of cannabis is a trivial offence. The penalty provision makes it very clear that it is not, and this Court has repeatedly said as much. Having said that, in my view a lesser sentence is appropriate in this case.
20. In my view the appellant should be re-sentenced on count 1 to three years' imprisonment. On count 2 I would again sentence him to three months' imprisonment and order that one month of that sentence be served cumulatively upon the sentence on count 1. That would produce a total effective sentence of three years and one month. I would fix a non-parole period of 21 months.

CHARLES, J.A.:

21. I agree.

CHERNOV, J.A.:

22. I also agree.

CHARLES, J.A.:

23. The orders of the Court are as follows:

The application for leave to appeal is granted.

The appeal is treated as instituted and heard instanter and is allowed.

The sentence below is set aside. In lieu thereof the appellant is sentenced on count 1 to three years' imprisonment and on count 2 to three months' imprisonment.

The Court directs that one month of the sentence on count 2 be served cumulatively upon the sentence on count 1. The total effective sentence is therefore three years and one month's imprisonment. The Court directs that the appellant serve a minimum period of 21 months before becoming eligible for parole.

The Court declares that as at this date the appellant has served the period of 205 days pursuant to this sentence and directs that this declaration and its details be noted in the records of the Court.

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[1] [1998] V.R. 359, at 371.

[2] [2002] VSCA 41, at [11] and [17].

[3] See R. v. Krasnov and Shlakht (1995) 82 A.Crim.R. 92, at 99; R. v. VZ [1998] VSCA 32, at [12]-[14].

[4] At [14].