New South Wales Court of Criminal Appeal CITATION: R v BUI, BUI v R [2008] NSWCCA 297 HEARING DATE(S): 2 December 2008 JUDGMENT DATE: 12 December 2008 JUDGMENT OF: Hodgson JA at 1; James J at 2; Price J at 44 DECISION: Extension of time for appealing agasint conviction refused. Crown appeal against sentence dismissed. CATCHWORDS: CRIMINAL LAW — Sentencing — Crown Appeal against sentence — Drug Misuse and Trafficking Act s 23A — hardship to offender's children exceptional Crimes (Sentencing Procedure) Act LEGISLATION CITED: Criminal Appeal Act Drug Misuse and Trafficking Act Electricity Supply R v Liberti (1991) 55 A Crim R 120 CASES CITED : R v Togias (2001) 127 A Crim R 23 R v Wall [2002] NSWCCA 42 PARTIES: Crown Thi Rien BUI FILE NUMBER(S): CCA 2007/10053002; 2007/10053003 COUNSEL: JA Girdham - Applicant GD Wendler - Respondent SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions (Applicant Crown) AKN & Associates (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/21/3369 LOWER COURT JUDICIAL OFFICER: Coorey DCJ LOWER COURT DATE OF DECISION: 3 October 2008 IN THE COURT OF CRIMINAL APPEAL 2007/53002 2007/53003 HODGSON JA JAMES J PRICE J FRIDAY 12 DECEMBER 2008 R v BUI, Thi Rien BUI, Thi Rien v R Judgment 1 HODGSON JA: I agree with James J. 2 JAMES J: In this matter the Crown appealed against a sentence imposed on the respondent to the Crown appeal Thi Rien Bui, a female, who I will refer to as "the respondent". At a late stage the respondent sought to raise an appeal against her conviction. 3 On 3 October 2008 in the District Court his Honour Judge Coorey sentenced the respondent for one offence, to which she had pleaded guilty, of cultivating not less then a commercial quantity of prohibited plants (cannabis plants) by enhanced indoor means and exposing children to that cultivation process. In sentencing the respondent the sentencing judge took into account an offence of unlawfully consuming electricity in contravention of s 64 of the Electricity Supply Act. The sentencing judge sentenced the respondent to a term of imprisonment for two years but made an order suspending the sentence pursuant to s 12 of the Crimes (Sentencing Procedure) Act. 4 The principal offence for which the respondent was sentenced was an offence under s 23A(2) of the Drug Misuse and Trafficking Act ("the Act"), which provides, so far as is relevant, as follows:- "(2) A person who: (a) cultivates, or knowingly takes part in the cultivation of, a number of prohibited plants by enhanced indoor means which is not less than the commercial quantity applicable to those plants, and (b) exposes a child to that cultivation process, or to substances being stored for use in that cultivation process, is guilty of an offence." 5 When cannabis plants are cultivated by enhanced indoor means the number of plants which amounts to a commercial quantity is 50. 6 The maximum penalty for an offence under s 23A(2) is imprisonment for 18 years and a fine of 4200 penalty units (s 33AD(3) of the Act). 7 An appeal was brought by the Crown pursuant to s 5D of the Criminal Appeal Act against the sentence which had been imposed on the respondent on the ground that the sentence was manifestly inadequate and written submissions were filed by the Crown in support of its appeal. Written submissions were then filed on behalf of the respondent in opposition to the Crown's appeal against sentence. However, at the same time as these submissions were filed a document described as a "ground of appeal" was filed stating:- "… upon the admitted facts and the evidence given by the offender during sentence the offender could not in law be convicted of an offence pursuant to s 23A(2)(a)(b) of the Drug Misuse and Trafficking Act 1985 (NSW)." 8 The written submissions filed on behalf of the respondent included submissions in support of this ground of appeal which is clearly a ground of appeal against conviction. 9 It is convenient to consider the intended appeal against conviction before proceeding, if necessary, to consider the Crown appeal against sentence. 10 The ground of appeal refers to "the admitted facts and the evidence given by the offender during the sentence". 11 A statement of agreed facts was admitted into evidence in the proceedings on sentence. The statement of facts, omitting the address of the respondent's house and the names of her children, was in the following terms:- "The offender owns the dwelling house at …. On Wednesday 16th May 2007, at about 7am, police attended … and executed a warrant. Upon their arrival police were greeted by the offender's four young children at the front door… (the children were aged 13 years, 9 years, 8 years and 4 years). Children's toys were found in the entrance to the kitchen. The three youngest children were in primary school at the time of the offence. Primary school records show that the offender gave the children's home address as … in 2005, 2006 and 2007. The school records describe the father as the 'non-residential parent'. The offender's 13 year old son … took police upstairs to the offender, Thi Rien Bui, who was standing next to a door with light coming out from under it and a big lock on the door. The house has three bedrooms upstairs and two bedrooms downstairs. The offender cultivated cannabis in two different parts of the house. The upstairs bedroom with the lock on the door contained 55 small cannabis plants, approximately 30cm in height, which were being cultivated with the aid of artificial light. Six lights and shades were seized by police. The house has one bathroom. This is located upstairs. In the bathroom, three bottles of fertiliser were found, as well as a shower head connected to a long piece of hose. Downstairs, a small purpose built room directly behind the garage, contained 55 mature cannabis plants, over 1m in height. Also found in the garage were 17 electrical transformers, 16 lights and shades, 3 electrical power boxes, 3 charcoal air filters, 2 unused light globes, a power board, a tub of fertiliser, two bottles of fertiliser and 1 large bottle of fertiliser. The offender was placed under arrest and cautioned. The offender declined to be interviewed. She indicated her willingness to plead guilty from the earliest opportunity. Inspection of the premises by a technician from Integral Energy revealed that the electricity supply was being illegally bypassed and unmetered electricity distributed to the premises. Subsequent inquiries revealed that another person was living in one of the downstairs bedrooms. Police are currently considering charges in respect of this person. Fingerprint testing was conducted on the equipment seized from the premises. The offender's fingerprints were not found on the equipment. Another person's prints were located. The Crown concedes that the offender was not the only person involved in the cultivation of the cannabis grown in the house." 12 In parts of the evidence given by the respondent in the proceedings on sentence the respondent said that the doors to both the upstairs bedroom and the garage were fitted with locks, that the doors were kept locked and that she did not allow her children to go into either the bedroom or the garage; and the respondent, when asked what her role in the cultivation had been, said "I didn't have to do anything. Someone else doing the job." 13 In his remarks on sentence the sentencing judge said:- "The Crown take the view that, on the evidence, it seems that the offender's role was to provide the premises, that is there is no evidence that the offender took part in the actual cultivation. It seems to me that that submission is consistent with the fact that there were no finger prints of the offender on any of the items." 14 In a pre-sentence report which was admitted into evidence in the proceedings on sentence it is stated that the respondent "was responsible for watering the plants in the cultivation". However, this part of the pre-sentence report was not referred to by the sentencing judge in his remarks on sentence and I consider that it should be inferred that the sentencing judge accepted the Crown's view about the extent of the respondent's role in the cultivation. 15 It was submitted by counsel for the respondent that on the admitted facts and the evidence given by the respondent in the proceedings on sentence and having regard to the finding made by the sentencing judge in his remarks on sentence about the extent of the respondent's role in the cultivation, the respondent could not lawfully have been convicted of the offence to which she had pleaded guilty, because:- 1. her role in the cultivation having been limited to providing the premises in which the plants were cultivated, she had not "cultivated" the plants within par (a) of s 23A(2) 2. by keeping locked the doors to the two parts of the premises in which the plants were being cultivated and not allowing her children to go into those parts of the premises, she had not "exposed" her children to the cultivation process within par (b) of s 23A(2) or she had a defence under s 23A(6) which provides that it is a defence to a prosecution if the defendant establishes that the exposure of the children to the prohibited plant cultivation process did not endanger the health or safety of the children. 16 This Court has jurisdiction to allow an appeal against conviction for an offence, notwithstanding that the appellant pleaded guilty to the offence in a lower court. The circumstances in which this jurisdiction will be exercised include that the appellant could not have been convicted of the offence to which he or she pleaded guilty. However, the Court of Criminal Appeal regards attempts on appeal to change a plea of guilty "with caution bordering on circumspection". See R v Liberti (1991) 55 A Crim R 120 at 122 per Kirby P. 17 It may be that, in the present case, the offence of which the respondent should have been convicted was an offence of knowingly taking part in the cultivation of prohibited plants and not an offence of cultivating the prohibited plants. By providing the premises in which the cultivation took place the respondent clearly knowingly took part in the cultivation. See the definition of "take part in" in s 6 of the Act. However, s 23A(2) of the Act applies to both a person who cultivates and a person who knowingly takes part in cultivation and the same maximum penalty applies in both cases. In the present case there is no suggestion that the sentencing judge sentenced the respondent on the basis of any facts which should have been regarded as irrelevant to any offence of which the respondent might truly have been guilty. 18 It is an essential element of an offence under s 23A(2) that the offender exposed the child to the cultivation process. There is no definition in the Act of the word "expose" or any cognate word, so that it is necessary to refer to ordinary meanings of the word "expose". Counsel for the Crown referred this Court to definitions of "expose" in the new shorter Oxford Dictionary including "to lay open to danger", "to subject to risk" and "to imperil". 19 In my opinion, the respondent's children could properly be said to have been exposed to the cultivation process, even though the doors to the upstairs bedroom and the garage were kept locked and the children were not allowed to enter the bedroom and the garage. According to the agreed facts, there was only one bathroom in the house and this must necessarily have been used by the children. In the bathroom police found three bottles of fertiliser and a showerhead connected to a long piece of hose. 20 Furthermore, according to the agreed facts, the electricity supply to the premises was being illegally bypassed. In the proceedings on sentence the respondent's legal representative, who was clearly alert to the requirement for an offence that a child should have been exposed to the cultivation process, expressly conceded that "re-routing of electricity" was sufficient to establish the requirement, inferentially because of the risk of an electrical fire resulting from unauthorised electrical work. In the proceedings on sentence no attempt was made on behalf of the respondent to establish a defence under s 23A(6) and it would have been difficult, if not impossible, for the respondent to establish that the unauthorised interference with the electricity supply to the house had not endangered the safety of her children. 21 The proposed appeal against conviction is, of course, out of time and in all of the circumstances I do not consider that this Court should extend the time for appealing against the conviction. 22 I turn now to the Crown appeal against sentence. 23 The principles governing Crown appeals against sentence are well known and need not be repeated here. They are summarised in the well known passage in the judgment of Wood CJ at CL in R v Wall [2002] NSWCCA 42 at [70]. 24 Earlier in this judgment I set out the agreed statement of the facts of the offence and I noted the finding, which I consider the sentencing judge made, that the role of the respondent in the cultivation had been confined to knowingly permitting her premises to be used by others for the cultivation of the plants. The sentencing judge found that the offence fell below the mid-range of seriousness for offences of this sort. 25 The material in the proceedings on sentence about the respondent's subjective circumstances included a pre-sentence report, a report by a psychiatrist Dr Tran, a report by a psychologist David Green, a report by a psychologist Minh Nguyen, a medical certificate by a general medical practitioner and a report from the Burnside Multicultural Family Centre, representatives of which made weekly visits to the respondent's home between August and November 2007. 26 Some of the respondent's own subjective circumstances are sketched in the following passages in the pre-sentence report:- "Born in Vietnam, Ms Bui escaped and travelled to the Hong Kong refugee camp in 1989. Two of her siblings followed and they were interned for 2 years. The offender met her husband in that camp and he assisted her with her migration to Australia in 1991. Her brother and sister followed soon after and are her only extended family members in Australia. The offender married in 1991 and the couple had three sons now aged 15, 11 and 10 years. However the marriage reportedly suffered owing to the husband's gambling excesses and the couple separated in 1997. They reconciled briefly years later and their youngest son now aged 5 years resulted from this brief union, but the husband's bad habits resurfaced and he has now little to do with the family. …………. Ms Bui continued to raise her four offspring and, though with limited finance, she committed herself to a mortgage of the residence where the offence occurred. While her brother lived with her, he assisted in meeting mortgage payments. But when he left to live with his other sister, Ms Bui stated that she was no longer able to meet the mortgage costs and finally was seeking to sell the property. It was reportedly at this stage that she met a person known to her from the Hong Kong camps and he proposed the illegal venture for which she is presently before the Court." 27 In his remarks on sentence the sentencing judge found that the respondent speaks very little English and is estranged from her own family and her husband. She had no previous criminal convictions apart from convictions for two minor shoplifting offences and the sentencing judge found that she was unlikely to re-offend. 28 It was recognised in the proceedings on sentence and on this appeal that the respondent's children were crucial in the sentencing of the respondent. As already noted, the respondent has four children who at the time of sentencing were aged 13 years, 9 years, 8 years and 4 years. 29 In his remarks on sentence the sentencing judge referred to the certificate by the general medical practitioner stating that the youngest child "suffers from delayed speech, minimal vocabulary, minimal understanding, not follow instructions. The youngest child will require speech therapy twice weekly for one year". His Honour also referred to evidence given by the respondent in the proceedings on sentence that she has to supervise the youngest child's eating, dressing and toileting. 30 The respondent was arrested for this offence on 16 May 2007. She was released on bail after being in custody for one day. About a week later officers of the Department of Community Services removed the four children from the respondent. The children were separated and placed at foster care. After about six weeks the children were returned to the respondent. The oldest child wrote a letter to the sentencing judge in which he described the extent of the emotional upheaval for the children as a result of being separated from their mother. After the children were returned to the respondent the Burnside Centre provided the respondent with sessions on parenting skills and a representative visited the respondent's home each week. 31 In his remarks on sentence the sentencing judge found that, if the respondent was imprisoned, the respondent's former husband, the father of the children, who had formed a new relationship, would not be prepared to assume the care of the respondent's children and that the respondent's brother and sister, being the only members of her family in Australia, would not be able, by reason of their own commitments, to assume the care of the respondent's children. Consequently, if the respondent was imprisoned, the children would once again be taken into care by the Department of Community Services. 32 Although the only ground of appeal was that the sentence was manifestly inadequate, it was submitted by the Crown on this appeal that the sentencing judge had made a number of specific errors in the sentencing of the respondent. The specific errors alleged included that the sentencing judge had referred to the youngest child as being "developmentally disabled"; had described the respondent's relationship to the Burnside Centre as being a form of "probation"; had given insufficient reasons for his sentencing decision; had selected a period of two years as the term of the respondent's sentence so as to be able to suspend the execution of the sentence; had not considered whether he should order that the sentence be served by way of periodic detention before deciding to suspend the sentence; and had misstated the test for determining whether hardship to members of an offender's family can be taken into account otherwise than as merely being part of the offender's overall subjective circumstances. Hardship to members of an offender's family has to be "exceptional" before it can be given substantial weight in sentencing. See, for example R v Togias (2001) 127 A Crim R 23 at 25(13). 33 In my opinion, these specific errors contended for were not established or were immaterial. 34 It may be that the terms "developmentally disabled" and "probation" used by the sentencing judge in his remarks on sentence were not aptly chosen but his Honour in his remarks on sentence quoted the terms of the medical certificate and the relevant parts of the report from the Burnside Centre and I would accept that his Honour proceeded on the basis of the contents of the certificate and the report and not on the basis of the descriptions his Honour gave in his remarks. 35 I consider that the sentencing judge gave sufficient reasons for his sentencing decision and in arriving at the sentence of imprisonment the execution of which was to be suspended and it is merely speculative to suggest that his Honour tailored the period of imprisonment so as to be able to suspend the execution of the sentence. 36 In his statement of the principle that hardship to third parties must be exceptional before it warrants a substantial reduction in the sentence imposed on an offender his Honour once in his remarks on sentence used the word "unusual" and not the word "exceptional" but elsewhere in his remarks his Honour used the word "exceptional" and I would not conclude that his Honour failed to apply the proper principle. 37 As I have already indicated, the crucial issue on the Crown appeal was whether the circumstances relating to the respondent's children were truly exceptional so as to warrant a substantial reduction in the sentence which would otherwise have been imposed on the respondent. 38 The Crown submitted that the circumstances relating to the children were merely strong subjective circumstances and did not amount to truly exceptional circumstances. It will often be the case, as the Crown submitted, that imprisoning an offender would cause hardship, and not infrequently severe hardship, to others such as the offender's spouse or children. 39 It was further submitted by the Crown that it would be paradoxical to allow hardship to an offender's children to reduce a penalty for an offence under s 23A(2), when an element of the offence is the exposing of a child to the cultivation process. 40 Counsel for the respondent submitted that in the present case there were truly exceptional circumstances. 41 I have concluded that the combination of circumstances relating to the respondent's children was such that it was open to the sentencing judge to find that the combination of circumstances was truly exceptional. The circumstances included that there were four children ranging in age from 13 to 4; that the youngest child had serious developmental problems; that there was no other individual who could assume the care of the children, if the respondent was imprisoned; that when the children had previously been taken by the Department of Community Services they have been separated and had suffered severe emotional disturbance; and that, if the respondent was now in prison, the children would again be taken into care by the Department of Community Services and would be likely to be placed in separate foster homes. 42 If, as I have held, it was open to the sentencing judge to hold that the circumstances relating to the respondent's children were truly exceptional so as to warrant a substantial reduction in the respondent's sentence, then the sentence the sentencing judge imposed could not be said to be manifestly inadequate. 43 In my opinion, the Crown appeal against sentence should be dismissed. 44 PRICE J: I agree with James J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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