New South Wales Court of Criminal Appeal CITATION: Tran v R [2010] NSWCCA 72 HEARING DATE(S): 7 April 2010 JUDGMENT DATE: 23 April 2010 JUDGMENT OF: Beazley JA at 1; Howie J at 2; Hislop J at 3 DECISION: Leave to appeal granted; appeal dismissed. LEGISLATION CITED: Drug Misuse and Trafficking Act, 1985 Criminal Procedure Act R v Way (2004) 60 NSWLR 168 R v Tran (unreported, NSWDC, 3 April 2009) R v Phu (unreported, NSWDC, 30 January 2008) R v Nguyen (unreported, NSWDC, 4 September 2008) Bui v R [2008] NSWCCA 314 Nguyen v R [2009] NSWCCA 283 CASES CITED : Phan v R [2010] NSWCCA 8 R v Bloomfield (1998) 44 NSWLR 734 Wong v R [2001] HCA 64; (2001) 207 CLR 584 R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 R v Knight; R v Biuvanua [2007] NSWCCA 283; (2007) 176 A Crim R 338 R v AD [2005] NSWCCA 208 De Rosiers v R [2006] NSWCCA 16; (2006) 159 A Crim R 549 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 PARTIES: Quoc Huong Tran v R FILE NUMBER(S): CCA 2008/14427 COUNSEL: M. Ramage QC (Applicant) M. Cinque (Crown) SOLICITORS: AKN and Associates (Applicant) Solicitor for Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/14427 LOWER COURT JUDICIAL OFFICER: Sides DCJ LOWER COURT DATE OF DECISION: 3 April 2009 IN THE COURT OF CRIMINAL APPEAL 2008/14427 BEAZLEY JA HOWIE J HISLOP J Friday 23 April 2010 QUOC HUONG TRAN v REGINA Judgment 1 BEAZLEY JA: I agree with Hislop J. 2 HOWIE J: I agree with Hislop J. 3 HISLOP J: The applicant pleaded guilty to a charge pursuant to the Drug Misuse and Trafficking Act, 1985, s 23(2)(a), that on 29 May 2008 at Moorebank, New South Wales he did cultivate a number of prohibited plants by enhanced indoor means to wit 210 cannabis plants, which was not less than the large commercial quantity applicable to that prohibited plant. The maximum penalty for the offence was imprisonment for 20 years. A standard non parole period of 10 years was applicable. 4 On 3 April 2009 the applicant was sentenced to imprisonment in respect of the offence for a non parole period of five years to commence on 28 May 2008 and to expire on 27 May 2013 with a balance of term of two years six months to commence on 27 May 2013 and expire on 27 November 2015. 5 The facts were, shortly, that on 29 May 2008 when executing a warrant the police found 210 cannabis plants of varying sizes growing by enhanced indoor means in a house at Moorebank. The applicant was the only person there and had keys to open locked doors within the house. He told police that he grew the plants to make money. He cooperated with police during the search and later, at the police station, participated in an interview during which he made significant admissions, clearly indicating that he was in total control of the plantation, had set it up, tended the plants, and intended to sell the harvest on the streets in Kings Cross. He also told the police that he needed money because he was not working and that he had rented the house from an uncle who did not know what he used the house for. He also said "I know what I did was not right." 6 The applicant has sought leave to appeal against sentence on the grounds that: (a) the sentence was unduly harsh and severe; (b) the sentencing judge erred in making unwarranted and unsupported findings adverse to the [applicant]. 7 The notice of application for leave to appeal was out of time. However, no issue was taken in that regard. The Court grants the necessary extension of time. 8 The applicant was born in Vietnam in 1977. He migrated to Australia in 1997. He married and had a child. He and his wife had separated but she was visiting him in gaol and there was a possibility of a resumption of cohabitation on his release. The applicant suffered from depression, for which he had received treatment. He had lower back problems. He had worked casually in unskilled jobs. His English skills were poor and he had difficulty in adjusting to life in Australia. The applicant used opiates and ice but had stopped this prior to the offence being committed. He commenced to use cannabis at age 24 and was using it at the time of the offence. He said he had a gambling habit. 9 The applicant had a prior criminal record with a number of convictions for larceny, stealing and goods in custody, as well as a conviction for malicious damage. In March 2007 he received a six months suspended sentence for growing, by enhanced indoor means, 30 cannabis plants in a home unit. 10 His Honour found (a) The applicant was the entrepreneur and sole trader who came up with the idea, set up the plantation, and intended to market what he produced directly to users. He financed at least part of it by way of a loan to pay the rent. His prime motive for the offence was greed. There was no suggestion that his use of cannabis was such that he needed to finance it by a venture of this size. He was aware of the impact of his activities in the community. (b) No-one other than the applicant was involved in this plantation. The applicant had planted the plants in such a way as to provide an income stream rather than a lump sum. (c) The offence was committed soon after the earlier like offence and involved an enterprise more elaborate in every respect. In the court's view the applicant did so because it was a means to obtain significant profits with relatively little effort after the house had been set up. (d) He was not persuaded that the applicant's prospects of rehabilitation and not reoffending were better than reasonable. 11 His Honour observed the number of plants involved was only just over the applicable large commercial quantity (200) and there was no upper limit in the Act for the large commercial quantity. There was, of course, as a practical matter, an upper limit governed by the size of the premises involved. 12 His Honour allowed the applicant a 25 percent discount for an early plea of guilty. He said that he further reduced the sentence because of remorse, as indicated by his early guilty plea, his genuine expressions of remorse, his assistance to the authorities during the search and via his admissions in an ERISP. 13 His Honour found special circumstances because of the absence of a lengthy prison sentence in the past and the applicant's need for an extended period of supervision and parole. His Honour also noted that there had been some delay in the finalisation of the matter and that as the applicant was not responsible for that delay he was entitled to some leniency, though there was no evidence that the delay had caused him any anxiety over and above what might be expected because of the delay. 14 His Honour considered the matter in accordance with R v Way (2004) 60 NSWLR 168 and concluded the applicant's criminality fell just below the mid range. His Honour said that for that reason and because he pleaded guilty and the finding of special circumstances, he did not impose the statutory non parole period but it was used as a guidepost. 15 His Honour dealt, under s 166 of the Criminal Procedure Act, with a charge of diverting electricity. The applicant pleaded guilty to this charge and was convicted. The court did not proceed to punishment pursuant to s 10A. Ground 1 – The sentence was unduly harsh and severe. 16 Senior counsel for the applicant in his written submissions submitted that the sentencing judge had declared that he had allowed a 25 percent reduction for the applicant's plea, reduced the sentence for the remorse he had shown and made further allowance for delay. Assuming these statements to have been acted upon, the sentencing judge must have commenced with a notional sentence well in excess of 10 years. It was submitted that such a notional head sentence was totally out of proportion to the criminality involved, particularly in the light of his Honour's finding that the criminality fell below the mid range. It also lacked proportionality to sentences given for similar offences. 17 Senior counsel for the applicant relied upon Judicial Commission statistics in respect of offenders up to December 2008. He stated that there were only eight cases and "they range from 20 months to six years, one person got five years, one person got six years. Non-parole periods range from 18 months to 42 months. One person got 42 months, one person got 36 months. I realise it is a very small range and it is difficult to extract a pattern from those except to say this, the applicant's sentence is considerably in excess of any other sentence imposed." 18 Senior counsel for the applicant also relied upon a number of cases which he said formed the basis of the statistics and to which he took the Court. These cases are: (a) R v Tran – unreported, NSWDC, Sides DCJ, 3 April 2009 In this matter the offender pleaded guilty to a charge of knowingly taking part in the cultivation of cannabis plants (290) not less than the large commercial quantity by enhanced indoor means pursuant to s 23(2)(a). His role was not of a principal or financier but he permitted his premises to be used for cultivation of the plants and he helped move some of the equipment into the house. The offender was 48 years old, had a previous conviction for cultivating cannabis, declined to be interviewed and received a full discount of 25 percent due to his guilty plea. Criminality was found to be below mid range and special circumstances were not established. The standard non parole period was used as a guidepost. The offender was sentenced to a non parole period of 3 years 9 months, with a balance of term of 1 year 3 months. (b) R v Phu – unreported, NSWDC, Armitage DCJ, 30 January 2008 In this matter the offender pleaded guilty to a charge of cultivating a quantity (301) of cannabis plants not less than the large commercial quantity by enhanced indoor means pursuant to s 23(2)(a). The offender admitted ownership of the premises and of the cannabis plants. The offender was born in 1959, had no prior relevant convictions and received a full discount of 25 percent for his plea. Special circumstances were found, three Form 1 matters were taken into account and criminality was found to be mid range. The offender was sentenced to a non parole period of 1 year 3 months with a balance of term of 1 year 3 months. (c) R v Nguyen – unreported, NSWDC, Woods DCJ, 4 September 2008 In this matter the offender pleaded guilty to two charges of cultivation of cannabis by indoor means. One offence concerned a large commercial quantity (239) and the other concerned a commercial quantity (174). The standard non parole period was applicable to the large commercial quantity. The offender played a minor role in the cultivation of the plants. He was born in 1971, had no previous record of relevance and received a full discount of 25 percent for his plea. Special circumstances were found and in relation to the large commercial quantity one offence was taken into account on a Form 1. The offender was sentenced in respect to the large commercial quantity to a non parole period of 1 year 9 months with a balance of term of 1 year 3 months. (d) Bui v R [2008] NSWCCA 314 In this matter the applicant pleaded guilty to the charge of cultivating a large commercial quantity (281) of cannabis plants grown by enhanced indoor means. The applicant owned the premises. He was born in 1960, had no prior record of any relevance and received a full discount of 25 percent for an early guilty plea. Special circumstances were found and one offence was taken into account on a Form 1. There was no standard non parole period applicable. He appealed against the sentence of a non parole period of three years with a balance of term of two years on the grounds that it was manifestly excessive. The appeal was unsuccessful. (e) Nguyen v R [2009] NSWCCA 283 In this matter the applicant pleaded guilty to a charge of cultivating a quantity (202) of cannabis plants not less than the large commercial quantity by enhanced indoor means pursuant to s 23(2)(a). A standard non parole period of 10 years was relevant. The applicant's role was towards the lower end of the scale, being essentially the watering and fertilising of the plants at night. He was born in 1954, had no prior record of relevance and received a full discount of 25 percent for his plea. Special circumstances were found and four related offences were taken into account on a Form 1. He appealed against the sentence of a non parole period of imprisonment of 3 years 3 months with a balance of term of 2 years 4 months on the ground that it was manifestly excessive. The appeal was unsuccessful. (f) Phan v R [2010] NSWCCA 8 In this matter the applicant pleaded guilty to a charge of knowingly taking part in the cultivation of a large commercial quantity (250) of cannabis plants grown by enhanced indoor means. The standard non parole period of 10 years was applicable. The applicant was found to have a limited role in the operation, consisting mainly of knocking down a wall, diverting some electrical leads and removing carpeting. The applicant had a prior conviction of supplying more than a small but less than an indictable amount of heroin. He was towards the lower end of functioning intelligence. Special circumstances were found and one offence was taken into account on a Form 1. He appealed against the sentence of a non parole period of 3 years with a balance of term of 2 years on the grounds that it was manifestly excessive. The appeal was unsuccessful. 19 In evaluating the sentence, the Court may have regard to statistics such as those provided by the Judicial Commission of New South Wales and to similar cases in determining sentence patterns and the appropriate sentencing range: R v Bloomfield (1998) 44 NSWLR 734 at 739. Caution must be exercised in the use of such material as the sentence depends upon the facts of each case and bare statistics tell the judge very little which is useful and see Wong v R [2001] HCA 64; (2001) 207 CLR 584. 20 The cases to which reference was made by senior counsel for the applicant are insufficient in number to establish a reliable sentencing range. However, the decisions in this Court in Bui, Nguyen and Phan establish that a sentence in the order of three years non parole period and a balance of term of two years prima facie would not be regarded as manifestly excessive in the case of an offender whose role was toward the lower end of the scale and where the number of plants was in the range of 200-300. 21 His Honour concluded that the applicant's criminality fell just below the mid range. This finding appears somewhat favourable to the applicant when regard is had to the very high level of criminality resulting from his total involvement in all aspects of the enterprise even though the number of plants was at the lower end for this offence. However, the finding was not challenged by the Crown. 22 This court has held that the standard non parole period remains a reference point, benchmark or guidepost, when there has been a plea of guilty: R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 per Simpson J at [37]. In R v Knight; R v Biuvanua [2007] NSWCCA 283; (2007) 176 A Crim R 338 Howie J stated, at [47]: "Even after a plea of guilty there must be an appropriate relationship between the standard non-parole period and the objective criminality of the offence regardless of the other matters that may be taken into account by way of mitigation." 23 As has been observed on a number of occasions, the implementation of a relatively high standard non-parole period will lead inevitably to an increase in sentencing for the relevant offence: AJP, R v AD [2005] NSWCCA 208 per Howie J at [43] and De Rosiers v Regina [2006] NSWCCA 16; (2006) 159 A Crim R 549 per Latham J at [36]. 24 When allowance is made for the higher degree of criminality involved in the case of the applicant, it is apparent the sentence imposed is consistent with the sentences upheld in the Court of Criminal Appeal in Bui, Nguyen and Phan. 25 Sentencing involves a discretionary judgment. There is no single correct sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies: Markarian v R [2005] HCA 25; (2005) 228 CLR 357. 26 In sentencing the applicant, his Honour had regard to the nature of the offence and other objective factors, the maximum penalty, the reference point provided by the standard non-parole period and the applicant's subjective case. The sentence is high but, in my opinion, was open in the proper exercise of his Honour's sentencing discretion. Ground 2 – The sentencing judge erred in making unwarranted and unsupported findings adverse to the offender 27 The applicant identified four such findings. They are dealt with hereunder: (a) In respect to the applicant's ability to work 28 The applicant had not worked full time in Australia though he did on occasions perform casual work. His ability to secure full time work was hampered by his poor English skills and intermittent lower back problems. His Honour noted, however, the applicant was able to undertake the work to set up the house for the plantation and tend the plants. His Honour reviewed the plaintiff's work history, and concluded: "Having considered all the evidence, the Court concluded that the applicant has no genuine commitment to work unless it involves a significant income for minimal effort, otherwise he finds it unpalatable." 29 In my opinion, it was open to his Honour to conclude as he did having regard to the applicant's work history, his criminal record and his involvement in the current offence. (b) In rejecting depression as any reason or explanation for the applicant becoming involved 30 There was evidence the applicant had been diagnosed with, and treated for, depression. He had consulted a psychologist for two years. There was no evidence before the sentencing judge from the psychologist and the only medical evidence was a report of the qualified psychiatrist, Dr Westmore, who recorded: "Depression – he reports a history of depression which occurred around the time his relationship failed and then ended. This was probably of an adjustment disorder type." His Honour noted the history of depression but concluded: "On the evidence presented to the Court, it is not persuaded that his depression had any significant part to play in his offending." 31 This finding was open to his Honour. There was no qualified evidence to the contrary. The evidence did not establish that the applicant was suffering from a mental disorder such as should be taken into account in sentencing. (c) In apparently rejecting the applicant's gambling problem 32 As to gambling, his Honour said: "During his evidence the applicant spoke of gambling. The applicant told Dr Westmore that, at the end of 2006, he started gambling because he was not happy and he had marital problems. He gambled to escape his problems, spending all his money on this pursuit he claimed. He acknowledged in evidence that he never mentioned his gambling to a probation officer. That means he had never mentioned it to the probation officers who prepared a report for March 2007, who supervised him for six months on the bond, or who prepared the report toward the end of last year…If, as he claims, he had a problem gambling, he has not done anything to address that." 33 The applicant's evidence as to any significant gambling problem was, as is apparent, unsatisfactory, and his Honour was entitled to be sceptical about that evidence. In any event, as his Honour observed: "In the Court's view there is only minimal connection between his alleged gambling and the offence. To the extent that they are connected, it offers some explanation for his crime, but no excuse for it." (d) In noting that there was no evidence that the applicant had been working in gaol 34 His Honour's statement that the applicant had not been working in gaol was correct, and this was accepted. The applicant correctly observed that there was no evidence that any work was available for him in gaol. 35 It was submitted by senior counsel for the applicant that the above adverse findings must have played a role in the sentencing judge's view of rehabilitation and his imposition of the unusually harsh sentence. However, these findings were all open to his Honour. They were not unwarranted or unsupported. They were, in any event, of little significance in the overall circumstances of the applicant. No error is demonstrated. Conclusion 36 In my opinion, error has not been established nor has it been established that some other sentence, less severe, is warranted in law and should have been passed. Accordingly, whilst I would grant leave to appeal I would dismiss the appeal. Orders 37 I propose the following orders: (1) Leave to appeal granted; (2) Appeal dismissed. ********** 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.