New South Wales Court of Criminal Appeal CITATION: LY v REGINA [2006] NSWCCA 324 HEARING DATE(S): 4 October 2006 JUDGMENT OF: Sully J at 1; Adams J at 2; Howie J at 23 EX TEMPORE JUDGMENT DATE: 10/04/2006 DECISION: Leave to appeal granted; appeal dismissed. CATCHWORDS: Sentence appeal - cultivation of cannabis - no question of principle - appeal dismissed. LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 ss 43, 44(1) Edwards (1996) 90 A Crim R 510 CASES CITED: Ho v DPP (1995) 37 NSWLR 393 R v Wood [2005] NSWCCA 233 Hoan Tuyet LY (Applicant) PARTIES: REGINA (Respondent) FILE NUMBER(S): CCA 2006/1934 COUNSEL: Mr P Boulton SC (Applicant) Mr W Dawe QC (Respondent) SOLICITORS: AKN & Associates (Applicant) S Kavanagh (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/1208 LOWER COURT JUDICIAL OFFICER: Boulton ADCJ LOWER COURT DATE OF DECISION: 2 February 2006 IN THE COURT OF CRIMINAL APPEAL 2006/1934 SULLY J ADAMS J HOWIE J 4 October 2006 Hoan Tuyet LY v REGINA Judgment 1 SULLY J: I invite Adams J to give the first judgment. 2 ADAMS J: Introduction The applicant was convicted on 14 September 2005 of cultivating a prohibited plant, namely cannabis, in premises at Hurstville between 23 February 2004 and 24 April 2004. The quantity of cannabis was 183 plants. On 2 February 2006 she was sentenced to two years' imprisonment commencing 26 January 2006 and expiring on 25 January 2008 with a non-parole period of twelve months expiring 25 January 2007. The applicant submits that this sentence was manifestly excessive. 3 The defence at trial was, essentially, that the applicant was unaware that the plants she was assisting to cultivate were cannabis. The objective facts were not, in substance, in dispute either at trial or on sentence. There was no submission in this Court that any of the factual findings of the learned sentencing judge were wrong. The following account is largely taken from the learned sentencing judge's reasons for sentence. Facts 4 In July 2003 the applicant and her husband rented a three-bedroom house in Hurstville for a term of six months. When this period expired the tenancy continued in the usual way. In mid April 2004 police went to the house. In the garage they found peat moss, plastic pots, fertiliser and the like. Inside the house was an elaborate lighting and ventilation system powered by an illegal bypass of the metered electricity supply. One hundred and eighty three cannabis plants at three distinct stages of maturity were seized, along with some 10 kg of dried cannabis. (Although the applicant was charged with the deemed supply of this cannabis, the jury were unable to agree on a verdict.) Photographs were discovered depicting the applicant and her husband with the plants, including what was called the "mother plant": the plant from which the cannabis plants were propagated. These photographs were dated from January 2004. The denials by the applicant that the dates were accurate were disbelieved by the jury and by the learned sentencing judge. The applicant claimed that a person named Paul had offered to rent the premises at a much greater sum than the lease to the applicant and her husband if he could "put some of his things" in the garage and it was he, she said, who had set the premises up and planted the crop, whilst the applicant only tended it from time to time. 5 Although his Honour strongly suspected the evidence about Paul was concocted, he was not satisfied beyond reasonable doubt that it was untrue. However, his Honour concluded that the applicant and her husband went much further than merely being passive observers of Paul's activities. He considered that there were "a number of indications that this was a joint venture of [the applicant and her husband] going right back to the leasing of the premises in July 2003". Amongst other things, the photographs "plainly indicated" that some of the plants had been growing since 2003. Moreover, the installation of the electrical work involved cutting holes in the floors and ceiling and bypassing the electricity meter was an essential part of the scheme. Otherwise the applicant and her husband, as the tenants, would have incurred huge costs for electricity. The learned sentencing judge also referred to large sums of money in the applicant's bank accounts the source for which was, in his Honour's view, unexplained. 6 In the result, the learned trial judge concluded that the applicant had an important role in the scheme in caring for the plants by watering and fertilizing and the like. His Honour found that, although she and her husband were not the architects of the scheme, they "at least connived in and assisted the operation in a significant fashion" for financial gain. Subjective features 7 The applicant was born in Vietnam in September 1965. Her early years during the war and its aftermath were extremely difficult. She spent nine years in a refugee camp in Hong Kong until 1997. She obtained work selling insurance in Hong Kong and attended various associated courses. She came to Australia in 2000 and married here in 2001. Her husband left her a short time before her arrest. It was said at the sentencing proceedings, and was accepted, that he then lived in China. 8 Although the applicant has attempted by undertaking several courses to improve her English language skills, her command of English is limited. She has permanent residency in Australia. The learned trial judge agreed with the assessment of the Probation and Parole Officer that the applicant presented as "an intelligent and capable woman". She had no family in Australia and was, essentially, without the support of family or friends. With the possible exception of lacking family and other support, all these matters are relatively unremarkable for persons of Vietnamese origin of the applicant's generation. 9 The learned sentencing judge, however, placed considerable emphasis on the fact that the applicant is the mother of a child born on 13 December 2004. It appeared that the birth was some weeks premature. As at the time of the sentence hearing, the child had feeding and possibly other difficulties. Out of concern for the child, the learned sentencing judge granted bail following conviction and enlarged that bail following submissions on sentence. Tendered in evidence by consent was a letter from the Department of Corrective Services concerning arrangements within the prison system permitting mothers to care for their young children through placement at Jacaranda House. The letter indicated that there would be a delay of about eight to twelve weeks following entry into custody before admission to Jacaranda House. During that period alternative care arrangements needed to be made for the child either with a family member or with the Department of Community Services. 10 The learned sentencing judge accepted that this separation would be "hugely distressing" for the applicant and, although his Honour believed the child would be well cared for through the Department of Community Services he thought that, at that age, she would be likely to feel a "great deal of distress" at being separated from her mother. The learned sentencing judge considered that "the present case is one of those exceptional cases where hardship to a member of the prisoner's family has to be taken into account and given quite substantial weight even though the consequence is to reduce the sentence imposed to much less than would have been warranted by the objective facts of the offence and the other subjective circumstances". However, his Honour did not accept that the circumstances were such as to justify a sentence of less than full time custody, principally for the reason that the separation would last for eight to twelve weeks. His Honour said that, if the separation were to have lasted for the length of the sentence, that would have placed the case, in his Honour's view, in the "highly exceptional" category permitting a non-custodial sentence. Indeed, his Honour said that, in that event, he would have wholly suspended the sentence. 11 There was no evidence of remorse or contrition. The learned sentencing judge found special circumstances existed within the meaning of s44(1) of the Crimes (Sentencing Procedure) Act 1999 justifying a variation of the statutory ratio. These included the applicant's previous good character, her difficult background, lack of family and other support and that she was a mother to a young child. His Honour also took into account eight days of pre-sentence custody. 12 The learned sentencing judge recommended that the application for admission to Jacaranda House should be processed expeditiously and indicated that, "if at the expiry of the eight to twelve week period…the application were not to be granted, then it would seem to me to be appropriate that the matter should be re-listed forthwith". I take it that this was a reference to s43 of the Crimes (Sentencing Procedure) Act 1999. However, it is at least doubtful that a change in a factual prediction of the kind referred to would enliven the jurisdiction bestowed by s43 to vary a sentence: see Ho v DPP (1995) 37 NSWLR 393. The appeal 13 It is submitted that the learned sentencing judge erred in making inconsistent or substantially inconsistent findings on hardship. It is contended on the applicant's behalf that the finding that there was such hardship to the child as justified a reduction in the sentence was inconsistent with the finding that the hardship was not so exceptional as to justify the imposition of a non-custodial sentence. 14 There is no merit in this contention. The mere fact that hardship to a third party must be exceptional for it to be taken into account does not mean that, where a custodial sentence should be imposed unless the circumstances are exceptional, that a conclusion that the circumstances justify taking that hardship into account requires a non-custodial penalty. The character and extent of the hardship on the one hand and the gravity of the offence on the other must be carefully weighed. Each is a matter of fact and degree. In a sense, each is incommensurable. The significance to be given to the exceptional hardship is to be considered, of course, in relation to the appropriate sentence but plainly the kind of exceptional hardship that is of significance in the sentencing process will vary and may or may not provide a sufficient basis for a non-custodial outcome in those cases where such an outcome depends on the establishment of exceptional circumstances. The distinction is apparent from such cases of R v Wood [2005] NSWCCA 233. I would reject this ground of appeal. 15 It is also submitted that the sentence imposed was outside the appropriate range. Insofar as the argument under this head is merely a reprise of the argument already rejected concerning the significance of the learned sentencing judge's finding that the hardship to the child was sufficiently exceptional to warrant some amelioration of sentence it is without merit. It did not follow that a term of full time imprisonment should not be imposed. 16 It is submitted, however, in reliance on the following passage, that his Honour's starting point must have been higher than was justified in all the circumstances of the case – "I consider that the present case is one of the exceptional cases where hardship to a member of the prisoner's family has to be taken into account…even though the consequences are to reduce the sentence imposed to much less than would have been warranted by the objective facts and the subjective circumstances." 17 It is submitted, therefore, that his Honour's starting point before taking into account the exceptional hardship would have been significantly greater than the two years' head sentence which his Honour ultimately imposed. This much may be accepted. However, the extent to which his Honour had a higher starting point must be speculative and I do not accept the submission that his Honour's starting point was in the region of three years or greater. But even if his Honour had started at three years before taking into account the hardship I do not consider that this would have been appealably wrong. 18 Mr Boulten SC for the applicant points to the two-judge decision of this Court in Edwards (1996) 90 A Crim R 510 in which a sophisticated hydroponic irrigation system was found in the shed, servicing some 185 cannabis plants up to one metre in height and the applicant admitted that the plants were hers, which she had been growing at the instigation of her husband. A number of containers and sealed bags of cannabis leaf and a set of drying racks were found in the house, at least $100,000 in cash was found in the ceiling, and the applicant admitted that the money had come from the sale of cannabis. Firearms were also found on the premises and were kept there to keep intruders off the property. The learned trial judge rejected the claim of the applicant that her husband was the real culprit and she the reluctant helper. There was no relevant criminal history. The applicant was the mother of school-aged children. She had pleaded guilty to the offence of knowingly taking part in the cultivation of the cannabis but, as Sperling J who delivered the judgment of the Court said, there was no difference in seriousness in respect of that offence as distinct from a charge of cultivation. There was little or no remorse. Nevertheless, the Court considered that the sentence of one year and six months consisting of a minimum term of nine months and an additional term of nine months was excessive having regard to the subjective features of the case and substituted a sentence which reflected the time that the applicant had served in custody up to the decision of the Court. 19 With unfeigned respect, of course, for the judges who comprised the Court of Criminal Appeal in Edwards, it does not seem to me that such a single instance demonstrates that the learned sentencing judge in this case was in error. 20 I should also point out, as did the learned sentencing judge, that there has been an increased understanding of the dangers of cannabis for users and increased instances of psychotic and other psychological disturbance have now been well documented in respect of persons who use cannabis frequently. I suspect that some seven years ago when Edwards was decided, this matter was not so well known as at present. However this may be, in my view, it is not possible to say that his Honour's sentence was outside the discretionary range available to him. 21 Accordingly, I propose that leave to appeal be granted but that the appeal should be dismissed. 22 SULLY J: I agree. 23 HOWIE J: I also agree. 24 SULLY J: The orders will be as proposed by his Honour. ********** 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.