New South Wales Court of Criminal Appeal CITATION: Thi Lan NGUYEN v R [2009] NSWCCA 181 HEARING DATE(S): 30 June 2009 JUDGMENT DATE: 14 July 2009 JUDGMENT OF: Giles JA at 1; Hidden J at 2; McCallum J at 3 1. Application for leave to appeal granted and the appeal allowed. DECISION: 2. The sentence imposed in the District Court on 2 December 2008 is quashed. 3. In lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 22 months to commence on 11 December 2007 and to expire on 10 October 2009 with a balance of term of 14 months to expire on 10 December 2010. The earliest date on which the applicant will be eligible for release to parole is 10 October 2009. CATCHWORDS: CRIMINAL LAW - appeal against sentence - appellant pleaded guilty to cultivation of cannabis plants by enhanced indoor means - total term of 4y with non-parole period of 2y 6m - whether cultivation by enhanced indoor means wrongly taken into account as an aggravating feature - hardship of imprisonment for a foreign national - whether sentencing Judge failed to give due weight to prospects of rehabilitation and unlikelihood of re-offending - whether sentence manifestly excessive - applicant re-sentenced to imprisonment with non-parole period of 22m and balance of term of 14m LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 CATEGORY: Principal judgment Bui v R [2008] NSWCCA 314 Nguyen Huu v R [2007] NSWCCA 94 Nguyen v R [2008] NSWCCA 322 R v Bloomfield (1998) 44 NSWLR 734 R v Ferrer-Esis (1991) 55 A Crim R 231 CASES CITED : R v Godden [2005] NSWCCA 160 R v Huang [2000] NSWCCA 238; [2000] 113 A Crim R 386 R v Nguyen; R v Cannistra [2006] NSWCCA 389 R v Quan [2006] NSWCCA 382 Truong v R Yang v R [2007] NSWCCA 37 PARTIES: Thi Lan NGUYEN (Applicant) REGINA (Respondent) FILE NUMBER(S): CCA 2008/5843 COUNSEL: R Wilson (Applicant) P A Leask (Respondent) SOLICITORS: Greenfield Lawyers (Applicant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/5843 LOWER COURT JUDICIAL OFFICER: Sides DCJ LOWER COURT DATE OF DECISION: 2 December 2008 - 15 - IN THE COURT OF CRIMINAL APPEAL 2008/5843 GILES JA HIDDEN J McCALLUM J 14 JULY 2009 THI LAN NGUYEN v R Judgment 1 GILES JA: I agree with McCallum J. 2 HIDDEN J: I agree with McCallum J. 3 McCALLUM J: This is an application for leave to appeal against the sentence imposed on Thi Lan Nguyen after she pleaded guilty to one count of cultivating a number of prohibited plants not less than the commercial quantity, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985. The charge related to the cultivation of 172 cannabis plants by enhanced indoor means. The commercial quantity in those circumstances is 50 plants, while the large commercial quantity is 200 plants. 4 The maximum penalty for the offence is 15 years imprisonment. There is no standard non-parole period for the offence. On 2 December 2008, the applicant was sentenced to imprisonment with a non-parole period of 2 years and 6 months to commence on 11 December 2007 (the date of her arrest) and to expire on 10 June 2010 with a total term of 4 years to expire on 10 December 2011. Circumstances of the offence 5 The offence came to the attention of police during an operation known as Strike Force Cobley which was formed in September 2007 to investigate a number of hydroponic cannabis plantations believed to be growing in the Sydney metropolitan area. 6 On 11 December 2007, police conducting surveillance of a house in Greenacre saw the applicant arrive with a Vietnamese man, who subsequently left. About two hours later police knocked loudly on the door, announcing their office. The applicant did not open the door and entry was forced. Police found the applicant hiding under a blanket on a mattress. They discovered 172 cannabis plants growing in three different rooms of the house. 7 The statement of facts tendered at the sentencing proceedings stated that the cultivation was being carried out under "sophisticated hydroponic conditions" which included suspended hydroponic lamps and various kinds of ventilation. An electrical inspector from Energy Australia ascertained that the premises had been wired so as to operate on stolen electricity but there was no evidence to suggest that the applicant was responsible for that circumstance and a charge against her relating to it was withdrawn. 8 One of the bedrooms in the house had 34 cannabis plants in individual pots averaging about one metre in height. In a second bedroom there were 87 seedlings ranging from 6 to 10 centimetres in height. A third bedroom had hydroponic lamps suspended from the ceiling and other equipment but no plants. There were 51 plants growing in 50 individual pots in the kitchen. In the hallway were approximately 60 pots that contained soil and roots but no plants. 9 The applicant was arrested. After being informed of her rights through a Vietnamese interpreter, she declined to participate in an interview with police. The sentencing proceedings 10 The applicant put no evidence before the sentencing Judge. The Judge had regard to a short report from a Probation and Parole officer who recorded the applicant's statement that she had not informed any family member that she was in custody. The applicant would not provide contact details to the probation officer for any other persons. The report was accordingly necessarily confined to information provided from the applicant together with information from the Department of Immigration and the police statement of facts. 11 The report of the probation officer stated that the applicant was born in Vietnam in 1963. She was one of six children and reported a happy childhood with "no significant issues". She had been married for 25 years and had three children, aged 10, 23 and 24 at the time of the sentencing hearing. The 23 year old was living in Australia on a student visa and the applicant's other two children were living in Vietnam with her husband. The applicant had left school at the age of 13 and had undertaken employment, mainly as a housekeeper. Since coming to Australia, she had undertaken casual employment on a farm. 12 In respect of the offence, she told the probation officer that, when she was working on the farm, someone told her to look after a house, which she agreed to do in return for financial gain and accommodation. She asserted that she was not initially aware that what she was looking after in the house was illegal but that by the time of the interview she had come to understand that it was. She denied any drug or alcohol issues and stated that she did not have any mental health or gambling problems. 13 As a prisoner, she had incurred no adverse reports. The probation officer did not assess the applicant for any community-based orders as she is now an illegal immigrant and is due to be deported upon her release from prison. 14 The sentencing Judge accepted that the applicant had entered the plea of guilty at the earliest opportunity and reduced her sentence by 25% to reflect its utility. 15 The Judge stated that he was extending the applicant the benefit of prior good character. His Honour noted that the number of plants involved was 86% of the large commercial quantity prescribed in Schedule 1 to the Act (200 plants) and almost 3.5 times the commercial quantity (50 plants). 16 The Judge observed that there was no evidence to suggest that the applicant initiated the cultivation. He observed that the different stages of development of the plants indicated that it was an ongoing venture, not limited to a single crop. 17 The Judge recorded a submission made on behalf of the applicant that, as an illegal immigrant, she was vulnerable to exploitation. There was, however, no evidence before the Court from the applicant on that issue. His Honour was accordingly confined to a consideration of the information provided by the applicant to the probation officer, on the strength of which his Honour found that the applicant's involvement in the offence was premeditated and for financial gain. 18 The Judge observed that, on the little information before him, it was impossible to determine the applicant's precise role but observed that there was no evidence that she was the principal offender. The Judge found that the applicant was at least tending the plants and effectively guarding them. 19 The Judge recorded his consideration of the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 and observed that it was appropriate, having regard to the prevalence of offences of this type, to give significant weight to general deterrence. 20 It is convenient to consider the grounds identified in the notice of appeal in the order in which they were addressed in oral submissions by counsel for the applicant, Mr Wilson. Hardship of imprisonment for a foreign national 21 Ground 2 is that the sentencing Judge failed to give any, or any proper, consideration to the hardship likely to be suffered by the applicant due to her status as a foreign national. Mr Wilson acknowledged that the sentencing Judge recited the fact that the applicant was a foreign national with no support in Australia apart from one son but contended that there was no indication that the Judge took that matter into account. 22 It was further submitted that the Judge made no attempt to draw any inferences from, for example, the use of interpreters throughout proceedings or the applicant's limited education. That submission misconceives the role of the sentencing Judge, which is not to trawl through the evidence with a view to gleaning any potential inference which could have been relied upon by the offender to mitigate the sentence. 23 Mr Wilson acknowledged that no submission was made to the Judge at the sentencing proceedings that he should take into account "the hardship which would flow from imprisonment of a foreign national with limited support". Nonetheless, he submitted that the failure of the Judge to refer to that hardship discloses error, citing R v Huang [2000] NSWCCA 238; [2000] 113 A Crim R 386; Yang v R [2007] NSWCCA 37 and R v Ferrer-Esis (1991) 55 A Crim R 231. 24 In Ferrer-Esis, Hunt CJ at CL made observations relating to persons who come to this country specifically and deliberately to commit offences. The point made by Mr Wilson in respect of that decision was simply that the sentencing Judge made no such finding in respect of the applicant. 25 In Huang, Adams J, with whom Spigelman CJ and Newman J agreed, stated: "The applicant's situation in the prison environment, as a foreigner with limited English and having no friends or family able to visit, will make his imprisonment more harsh than would be so for the ordinary prisoner. This also requires some, though not much, recognition." 26 In Yang, as in the present case, the consideration discussed by Adams J in Huang had not been drawn to the attention of the sentencing Judge. Bell J, with whom Sully and Hoeben JJ agreed, was not persuaded that the sentences in that case were to be taken to exhibit error by reason of "a presumed failure" to give appropriate consideration to that issue. 27 In my view, the position is the same in the present case. Even if it is to be presumed that the Judge failed to take into account the likely harshness of imprisonment in the particular circumstances of the applicant (since his Honour was not invited to do so), I do not think the sentence imposed exhibits specific error on that account. Imprisonment is harsh for all prisoners, in varying degrees. There having been no evidence from the applicant before the sentencing Judge as to her experience as a prisoner, it was not a consideration that required substantial recognition in the present case. Nonetheless, it remains a factor that is relevant in determining whether the sentence imposed was manifestly excessive. Reliance on authorities in which cultivation by enhanced indoor means was an aggravating feature 28 Ground 4 is "that the sentencing Judge erred by failing to identify an aggravating feature present in cases he used for comparison which was absent from the applicant's case." 29 A consideration of this ground requires an understanding of amendments to the Drug Misuse and Trafficking Act that came into force on 14 July 2006. Section 23(2)(a) was unchanged by the amendments. That section provides: "A person who cultivates, or knowingly takes part in the cultivation of, a number of prohibited plants which is not less than the commercial quantity applicable to prohibited plants is guilty of an offence." 30 However, before the amendments, Schedule 1 to the Act, which identifies the commercial quantity in respect of any prohibited plant or prohibited drug, drew no distinction between cannabis plants cultivated by enhanced indoor means and all other cannabis plants. There was a single category for cannabis plants which provided that the commercial quantity was 250 and the large commercial quantity was 1000. Mr Wilson submitted that it was accepted, in that statutory context, that cultivation by enhanced indoor means was an aggravating feature of the offence. 31 The amendments introduced a new plant category into Schedule 1 for "cannabis plant cultivated by enhanced indoor means", providing that the commercial quantity for that category was 50 and the large commercial quantity was 200. Mr Wilson submitted that the effect of that amendment was to introduce an additional element into the offence (that the plants were cultivated by enhanced indoor means) such that it would be wrong to rely on that factor as an aggravating feature of the offence. 32 The sentencing Judge stated that he had considered R v Godden [2005] NSWCCA 160 and two subsequent decisions given in respect of charges laid before the amendments came into force: Nguyen Huu v R [2007] NSWCCA 94 and R v Quan [2006] NSWCCA 382. It had been submitted on behalf of the applicant at the sentencing hearing that Nguyen and Quan were comparable sentencing decisions. 33 In respect of those decisions, the Judge said: "Although all of those cases deal with cultivation other than enhanced indoor means after the changes to the number of commercial and large commercial quantities, it is nonetheless appropriate to consider them bearing in mind in each case the percentage of the large commercial number of plants involved." 34 Mr Wilson submitted that the Judge was mistaken when he described those as decisions "other than enhanced indoor means". Reading that passage as a whole, however, I think that the Judge was simply recording the fact that they were pre-amendment cases. The significance of that, of course, was that the number of plants charged in those cases fell to be compared with the higher quantities specified in the Schedule in respect of the plant category "cannabis", which had formerly applied to all cannabis plants however cultivated. 35 Mr Wilson accepted that the Judge had correctly identified that those cases involved numbers of plants towards the lower end of the applicable range of commercial quantity for cannabis plants (from 250 to 999). He submitted, however, that the Judge overlooked the fact that the enhanced means of cultivation was an aggravating feature in those cases, whereas, following the introduction of the amendments, that feature is now reflected as an element of the offence (where the charge is based on the new plant category) and therefore is no longer appropriately taken into account as an aggravating feature. 36 Assuming the correctness of the principle underlying that submission, no departure from it is disclosed in the Judge's reasoning. The Judge did not purport to calculate the sentence by reference to a rigid application of the so-called comparable cases, but merely stated that he had considered them (as he had been requested to). Further, it is wrong to regard the presence or absence of an aggravating feature as a matter which must necessarily produce a particular outcome in the sentencing process. I do not think specific error is disclosed. Failure to determine prospects of rehabilitation 37 Ground 5 is that the sentencing Judge failed to give any, or any proper, consideration to the applicant's age and other relevant facts in assessing her prospects of rehabilitation and the likelihood of her re-offending. 38 The applicant relies on a passage of the remarks on sentence where the Judge said: "It is difficult on the evidence before it in this case for the Court to make a judgment about her prospects of rehabilitation and not re-offending. The Court can only hope that the prospect of imprisonment if she re-offends will suffice her from re-offending (sic)". 39 I do not think there is any substance in this ground. The applicant's written submissions list eight factors personal to the applicant which it is contended the sentencing Judge failed to take into account. In fact, as noted by the Crown, each of those factors was referred to by the Judge in his remarks on sentence. It is wrong to characterise the Judge's remarks set out above as indicating that the Judge did not make "any proper attempt" to assess the applicant's prospects of rehabilitation and the likelihood of her re-offending. 40 The applicant led no evidence in the Court below. The only material available to assist the Court (the report of the probation officer) was of limited use as a result of the limited information provided by the applicant. The Judge's remarks recorded the simple reality that, in that forensic context, any assessment of the applicant's prospects of rehabilitation and the likelihood of her re-offending would have been largely speculative. This ground is not made out. Was the sentence manifestly excessive? 41 Mr Wilson addressed the remaining grounds together in support of the contention that the sentence imposed was manifestly excessive. He contended that the Judge gave insufficient weight to the limited role of the applicant in the enterprise (ground 1) and undue weight to the number of prohibited plants (ground 3). He further contended (in ground 6) that the sentence was outside the permissible range having regard to a review of comparable decisions and by reference to the statistics maintained by the Judicial Commission of New South Wales, acknowledging the limits to the use of those statistics. 42 The complaint as to the weight given to various considerations cannot be sustained. As noted by the Crown, the Judge gave a lengthy recitation of the relevant considerations at pages 3 to 5 of the remarks on sentence. His Honour referred to the number of plants (with reference to both the commercial quantity and large commercial quantity), the evidence which suggested that the venture was not limited to one crop, his Honour's finding that the offence was premeditated and for financial gain, the fact that others were involved in the offence and the finding that the applicant was at least tending the plants and effectively guarding them. 43 The Judge's remarks on those issues conclude with the observation, which is self-evident and was appropriately taken into account in assessing the objective seriousness of the offence, that the willingness of people to engage, as the applicant did, in the day to day activity of growing prohibited plants promotes the establishment of illegal ventures because it enables those who establish such ventures to avoid detection. 44 I can discern no specific error in the Judge's approach to the task of assessing the objective seriousness of the offence as alleged in grounds 1 and 3. 45 It remains to consider whether the sentence imposed was, nonetheless, outside the permissible range having regard to a review of the statistics and comparable authorities. As noted by the Crown, the upper limit of the sentencing discretion in any case is the maximum penalty, not the highest penalty revealed in the statistics kept by the Judicial Commission: Van Cuong Nguyen v R [2008] NSWCCA 322 at [24]. 46 Nonetheless, the statistics remain a resource from which some guidance may properly be obtained, provided that the limits of their utility are borne in mind. As submitted by Mr Wilson, this Court's decision in R v Bloomfield (1998) 44 NSWLR 734 remains the leading authority as to the use of statistics in the sentencing process. The relevant principles are stated in the judgment of Spigelman CJ at 739. 47 Of particular relevance in the present case is the proposition that the statistics must be approached with care having regard to the relatively small class of cases that has been decided since the Act was amended to introduce the new plant category "cannabis plant cultivated by enhanced indoor means." 48 Also of relevance is his Honour's observation that statistics are least likely to be useful where the circumstances of the individual instances of the offence vary greatly, such as in the case of the offence of manslaughter. Conversely, I think it is fair to acknowledge, as submitted by Mr Wilson, that statistics will provide a firmer guide to consistent sentencing in the case of offences in respect of which a paradigm is more readily identifiable, such as the present offence. 49 With those principles in mind, it must be observed that the total term of the sentence imposed in the present case was towards the top of the range disclosed by the statistics for the same offence where the charge related to the new plant category "cannabis plant cultivated by enhanced indoor means" (for the period July 2006 to June 2008). The non-parole period was outside the range disclosed by those statistics. The highest non-parole period recorded in the statistics is 24 months. 50 As to a review of comparable decisions, the Crown referred to three decisions of this Court in respect of cases based on the new plant category. In Van Cuong Nguyen (cited above), the Court upheld a sentence of 5 years with a non-parole period of 3 years and 6 months in respect of the cultivation of 105 plants. Plainly, that sentence is not included in the statistics relied upon on behalf of the applicant. The probable explanation is that, in Nguyen, the offender was also sentenced on one count of supplying a prohibited drug and the sentences imposed produced consecutive non-parole periods, which took the case outside the counting rules for the statistics handed up by Mr Wilson. Mr Nguyen was sentenced on the supply count to a total sentence of three years and four months with a non-parole period of two years and six months. The sentences were accumulated by six months. 51 In Bui v R [2008] NSWCCA 314, the Court upheld a sentence of 5 years with a non-parole period of 3 years in respect of the cultivation of 281 cannabis plants by enhanced indoor means, which was more than the large commercial quantity. The maximum penalty for the offence in that case was accordingly 20 years, not 15 years as in the present case. 52 In Truong v R [2009] NSWCCA 41, the Court upheld a sentence of a non-parole period of 18 months with a further term of 2 years in respect of the cultivation of 189 cannabis plants, while observing at [15] that the non-parole period was at the upper end of the range indicated by the statistics. 53 The Crown also referred to the remarks of McClellan CJ at CL in R v Nguyen; R v Cannistra [2006] NSWCCA 389 where his Honour said at [54]: "Although in former years some people accepted marijuana as a "recreational drug" and believed that it did not have the addictive qualities and potential to damage the health of users which can occur with "hard drugs", this assumption has more recently been called into serious question. It is now recognised that marijuana can have very serious consequences for users with destructive potential for the lives of young persons. The legislature has recognised this damaging potential by providing a maximum penalty of twenty years for the present offence. When an enterprise thirty times larger than the minimum number of plants which constitutes the offence is identified the principals must anticipate that, unless there are significant mitigating factors, the maximum penalty will be imposed." 54 The offence in that case was cultivation of a large commercial quantity but it does not follow, as suggested by Mr Wilson, that those remarks are therefore irrelevant in the context of a lesser offence. 55 Nonetheless it is clear, both from a consideration of the statistics and a review of the authorities drawn to the Court's attention, that the sentence imposed in the present case was substantially harsher than those that have been imposed to date in comparable circumstances in the relatively small number of cases determined in respect of the new plant category. 56 It is particularly difficult to reconcile the applicant's sentence with the sentence imposed by the same judge in Truong, where the term of imprisonment was three and a half years (compared with 4 years in the present case) and the non-parole period was 18 months (compared with 30 months in the present case). As submitted by Mr Wilson, it may be accepted that the role of the offender in that case warranted a more severe penalty than that of the present applicant. Ms Truong owned the relevant premises. McClellan CJ at CL observed that the inevitable conclusion from the available evidence was that, even if she did not initiate the enterprise, she took it over and maintained the activity for the purpose of selling marijuana for profit. 57 In all the circumstances, I have reached the conclusion that the sentence imposed was manifestly excessive, particularly having regard to the factors identified in grounds 1, 2 and 3 discussed above and the range of sentences established by a review of the relevant authorities and the statistics provided. 58 It is accordingly necessary to re-sentence the applicant. The factors relevant to that exercise have been discussed in detail in respect of the grounds of appeal and it is not necessary to repeat them. 59 I have regard to the recent affidavit of the applicant which states that she endures considerable hardship as a prisoner by reason of the loneliness and isolation of being a person who speaks no English and rarely receives visitors. The affidavit also speaks of the applicant's shame in respect of the offence and her precept, as a practising Buddhist, to do no intentional harm. She states that she now appreciates the harm she was causing to others by becoming involved in the offence. 60 In the sentence imposed at first instance, the balance of term was more than half the non-parole period, representing a departure from the statutory ratio specified in s 44(2) of the Act. It is implicit that the Judge was satisfied that there were special circumstances for imposing a longer balance of term, although his Honour did not articulate his reasons for doing so. There having been no submission made in respect of that issue before this Court, I am satisfied that it is appropriate to retain approximately the same proportion as is reflected in the sentence imposed at first instance. Having regard to all of the relevant matters, I am of the view that the appropriate sentence is a non-parole period of 22 months with a balance of term of 14 months giving a total term of imprisonment of 3 years. 61 The orders I propose are: (1) That the application for leave to appeal be allowed. (2) That the appeal be allowed. (3) That the sentence imposed in the District Court on 2 December 2008 be quashed and in lieu thereof that the applicant be sentenced to imprisonment with a non-parole period of 22 months to commence on 11 December 2007 and expire on 10 October 2009 and a balance of term of 14 months to expire on 10 December 2010. The earliest date on which the applicant will be eligible for release to parole is 10 October 2009. ********** 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.