New South Wales Court of Criminal Appeal CITATION: Nguyen (Dinh Them) v Regina [2006] NSWCCA 253 HEARING DATE(S): 2 August 2006 JUDGMENT DATE: 25 August 2006 JUDGMENT OF: Beazley JA at 1; Hulme J at 2; Hislop J at 4 DECISION: 1. Grant leave to appeal and allow the appeal; 2. Quash the sentence appealed from and, in lieu thereof, sentence the applicant to imprisonment for a non parole period of 6 years and 9 months commencing on 29 January 2004 and expiring on 28 October 2010 and a balance of sentence of 2 years and 3 months to commence on 29 October 2010 and expire on 28 January 2013. CATCHWORDS: Criminal law - Sentence - Cultivation of cannabis plants - Large commercial quantity - Parity. LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 - ss 23(2), 33(3)(b). Bao Nguyen v R [2005] NSWCCA 448 CASES CITED: Lowe v The Queen (1984) 154 CLR 606 Postiglione v The Queen (1996 – 1997) 189 CLR 295 R v Kelly (2005) 155 A Crim R 499 PARTIES: Applicant - Dinh Them Nguyen Respondent - Regina FILE NUMBER(S): CCA 2006/1187 COUNSEL: Applicant - Mr S Odgers SC Respondent - Ms J Dwyer SOLICITORS: Applicant - The Law Practice Respondent - Director of Public Prosecutions (New South Wales) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/1380 LOWER COURT JUDICIAL OFFICER: Finnane DCJ LOWER COURT DATE OF DECISION: 16 December 2005 - 1 - IN THE COURT OF CRIMINAL APPEAL 2006/1187 BEAZLEY JA HULME J HISLOP J 25 August 2006 Dinh Them NGUYEN v REGINA Judgment 1 BEAZLEY JA: I agree with Hislop J. 2 HULME J: I agree with Hislop J. 3 I do so with disquiet because the result is a significantly lower sentence than the Applicant's criminality deserved. However in the circumstances of the case I feel constrained to follow the approach of this court in Bao Nguyen v R [2005] NSWCCA 448 to which Hislop J has referred. HISLOP J: 4 On 12 August 2005 the applicant was found guilty by a jury of a charge that he did cultivate prohibited plants, namely 30,051 cannabis plants, which was not less than the large commercial quantity applicable to that plant, contrary to the Drug Misuse and Trafficking Act 1985 ss 23(2) and 33(3)(b). The maximum penalty for such an offence is imprisonment for 20 years or a fine or both. 5 On 16 December 2005 the applicant was sentenced by Finnane DCJ for that offence to a non-parole period of nine years imprisonment commencing on 29 January 2004 and expiring on 28 January 2013 with a balance of sentence of three years commencing on 29 January 2013 and expiring on 28 January 2016. 6 The facts of the offence were that late in 2003 an organisation acquired the lease of a property at Mendooran, NSW. A large crop of cannabis plants were then planted, raised and cultivated on the property. Members of the Vietnamese community were hired to work on the property as farm labourers. The farm labourers were each to be paid in the order of $100,000 for their efforts. The applicant was employed as such a labourer. 7 The applicant has sought leave to appeal against sentence on the ground that he "has a legitimate grievance arising from disparity of sentence with co-offenders". 8 A number of co-offenders were sentenced prior to the applicant. A parity argument was addressed to Finnane DCJ, based upon the sentences received by the co-offenders. Those sentences were: a) Bao Nguyen – farm labourer – aged 22 – no prior convictions - plea of guilty – starting point 12 years - non parole period 5 years - balance of sentence 4 years (Solomon DCJ 5/1/05); b) Quang Trung Nguyen – farm labourer – allowed lease of property to be taken in his name (for which he was to receive $300,000) - plea of guilty – starting point 10 years – non parole period 2.5 years - balance of sentence 1.5 years - (Nicholson DCJ 21/01/05); c) Dinh Van Do – farm labourer- aged 47 – prior conviction for importing heroin in 1990 – plea of guilty – starting point 8.5 years – non parole period 4 years - balance of term 2 years 4 months (Nicholson DCJ 3/6/05); d) Viet Quynh Truong – farm labourer - aged 47 – no prior convictions – plea of guilty – starting point 7.5 years - non parole period 3 years 8 months, balance of term 2 years. (Nicholson DCJ 3/6/05). (His Honour sentenced Viet and Dinh using Quang as his benchmark in preference to Bao whose starting point he considered too high); e) Van Huy Nguyen – leading hand – plea of guilty – starting point 9.5 years - non parole period 3 years – balance of term 16 months (Nicholson DCJ 28/7/05); f) Duong Van Nguyen – farm labourer - aged 55 – no prior convictions - plea of guilty – starting point 7.5 years - non parole period 3 years 10 months - balance of term 2 years 6 months (Nicholson DCJ 23/9/05). 9 The relevant principles are well established: (a) … the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options - Postiglione v The Queen (1996 – 1997) 189 CLR 295 at 301 per Dawson and Gaudron JJ. (b) The test for determining the legitimacy of a sense of grievance is objective not subjective - R v Kelly (2005) 155 A Crim R 499 at 502 per Johnson J. (c) It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account - Lowe v The Queen (1984) 154 CLR 606 at 609 per Gibbs CJ. 10 Finnane DCJ held: In my opinion the objective facts show that each of these accused [the applicant was being sentenced with another farm labourer Cuu Nguyen] should be sentenced on a parity basis with Bao Nguyen. The facts as detailed by his Honour Judge Solomon appear to me to make their cases similar to his case. His Honour, in the case of Bao Nguyen fixed a starting point of twelve years. I think that is an appropriate starting point. I have had regard to the other starting points fixed by his Honour Judge Nicholson for other persons, but it is clear his Honour took into account particular circumstances peculiar to those persons which do not to my mind apply to either of these persons. 11 His Honour concluded the applicant: … was previously convicted of supplying drugs. I can find no special circumstances. I think that the sentence should be one of twelve years imprisonment and there should be a nine year non-parole period. 12 Bao Nguyen ("Bao"), upon whose sentence Finnane DCJ relied for his starting point in sentencing the applicant, appealed to the Court of Criminal Appeal against sentence. His appeal was heard on 16 December 2005. It was submitted on his behalf that he was entitled to entertain a sense of grievance in comparing his sentence to those imposed upon the co-offenders, Quang, Dinh and Viet. Details of the other two offenders who had been sentenced by Nicholson DCJ were not available to the Court. 13 On 8 February 2006 the appeal against sentence by Bao was upheld (Bao Nguyen v R [2005] NSWCCA 448). This Court concluded that the farm labourers had committed much the same offence in much the same circumstances. The principles of parity in the sentencing of co-offenders were applicable. The sentence imposed in Bao was properly open to Solomon DCJ and ought to have been regarded as the benchmark for the sentencing of later offenders. Nicholson DCJ erred in not having regard to the starting point in Bao when sentencing Quang, Dinh and Viet. However there was no Crown appeal from those sentences. In consequence Bao had a legitimate sense of grievance when his sentence was compared to those imposed on the three co-offenders. The sentences imposed on those persons were unduly lenient though they were not so lenient as to render illegitimate Bao's sense of grievance. The Court substituted a non-parole period of three years imprisonment and a balance of sentence of two years and six months. 14 In my opinion to allow the applicant's sentence to stand now that Bao's sentence has been reduced to conform with the lesser sentences imposed by Nicholson DCJ would create "a justifiable sense of grievance" in the applicant. Accordingly it is appropriate that this Court intervene to re-sentence the applicant. 15 The starting point for the re-sentencing of Bao was not identified. However adjustment to allow for a 25% discount for the plea of guilty in that case indicates the starting point was 7 years and 4 months. 16 There are a number of factors which differentiate Bao from the applicant. Bao was 22 years of age when sentenced, he was of prior good character, had no previous criminal history was contrite and had taken steps toward rehabilitation. The applicant was 47 years of age, he had a prior criminal history which included two convictions for supplying a prohibited drug, he showed no evidence of contrition or remorse and his Honour could form no positive conclusion that rehabilitation was likely. These factors justify and require that the applicant be given a higher sentence than Bao. 17 The above facts relevant to the applicant have a number of similarities to the facts in the case of Dinh. The starting point adopted by Nicholson DCJ in that case was 8.5 years though, as this Court held in Bao, his Honour erred in failing to reflect the prior conviction in his sentence. 18 In my opinion the appropriate starting point in this case, having regard to parity principles, is 9 years imprisonment. I agree with Finnane DCJ that there are no special circumstances. Accordingly I would uphold the appeal and impose a non parole period of 6 years and 9 months imprisonment and an additional term of 2 years and 3 months. 19 I propose the following orders: 1. Grant leave to appeal and allow the appeal; 2. Quash the sentence appealed from and, in lieu thereof, sentence the applicant to imprisonment for a non parole period of 6 years and 9 months commencing on 29 January 2004 and expiring on 28 October 2010 and a balance of sentence of 2 years and 3 months to commence on 29 October 2010 and expire on 28 January 2013. ********** 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. 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