New South Wales Court of Criminal Appeal CITATION: PHAN v R [2010] NSWCCA 8 HEARING DATE(S): 1 February 2010 JUDGMENT DATE: 11 February 2010 JUDGMENT OF: Grove J at 1; Simpson J at 19; RA Hulme J at 20 DECISION: Appeal dismissed. CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Prohibited drug grown by enhanced indoor means - Sentence - Limited role of offender - Plea of guilty - Standard non-parole period prescribed - Previous offending relating to drugs - Head sentence and non-parole period significantly less than standard prescription - No error in assessment by sentencing judge LEGISLATION CITED: Electricity Supply Act 1995 CATEGORY: Principal judgment Markarian v The Queen (2005) 228 CLR 357 CASES CITED : TC v Regina [2009] NSWCCA 296 R v Way (2004) 60 NSWLR 168 SKA v R [2009] NSWCCA 186 PARTIES: Van Dieu PHAN - Applicant REGINA - Respondent/Crown FILE NUMBER(S): CCA 2008/14630 COUNSEL: S Corish - Applicant J Girdham - Respondent/Crown SOLICITORS: S O'Connor, Legal Aid - Applicant S Kavanagh - Solicitor Public Prosecutions - Respondent/Crown LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/14630 LOWER COURT JUDICIAL OFFICER: Woods DCJ LOWER COURT DATE OF DECISION: 12 March 2009 IN THE COURT OF CRIMINAL APPEAL CCA 2008/14630 GROVE J SIMPSON J RA HULME J 11 February 2010 Van Dieu PHAN v R Judgment 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Woods DCJ at Sydney District Court on 12 March 2009. The applicant had been committed for sentence after pleading guilty in Burwood Local Court to a charge of knowingly taking part in the cultivation of a large commercial quantity of prohibited plants grown by enhanced indoor means for which there is a maximum prescribed penalty of 20 years imprisonment with a standard non-parole period of 10 years. His Honour was asked to and took into account in sentence assessment a further charge, somewhat imprecisely formulated, in that the applicant "did use, consume, divert etc electricity" unless authorized contrary to the Electricity Supply Act 1995. 2 His Honour sentenced the applicant to imprisonment consisting of a non-parole period of 3 years and a balance term of 2 years. 3 An agreed statement of facts was put before the court for the purpose of sentence. In August 2007 premises at Condell Park were leased to a man using the name of Hung Van Nguyen. This was a false identity. On 27 September 2007 police executed a search warrant at the premises, the front door and windows of which had been fortified with iron bars. No person was in the premises at the time. There was found within a sophisticated hydroponic system being used to grow cannabis under artificial light and fed by complex irrigation lines. 4 A conservative street value of the crop was said to be approximately $500,000. It was found that the electricity supply monitor had been bypassed at the rear of an external switchboard. 5 Investigators identified the applicant's fingerprints in two rooms of the premises including impressions on two electric transformers, which were located in one of those rooms. A strong profile match was established between the applicant and a toothbrush found in the premises. Other DNA samples related to a female person who was not able to be identified. 6 On 9 May 2008 the applicant was arrested in Bathurst and, as he was entitled, he declined to participate in an interview. 7 The foregoing has been extracted from the agreed facts, however, the applicant gave evidence in the proceedings before his Honour. The learned judge rejected a Crown submission that Hung Van Nguyen was fictitious and that the applicant was the principal in the criminal activity. Having rejected that submission, he continued, drawing from both sources: "While I may have my suspicion that that is the case, on the evidence, the probabilities are that this man was approached by somebody or other using the name of Nguyen to undertake some handyman type work on the premises. Generally I accept the version given by the offender. I do so not without some hesitation, but nonetheless on the evidence I am satisfied on the probabilities that he was only there for three days, he realised either immediately or shortly thereafter what the premises were for and he participated in the set up to some extent, the length of which is unidentifiable but I accept three days and he was not one of the gardeners. What he did at the request of the person 'Nguyen' was, on his version, to knock down a wall, divert some electrical leads and remove carpeting. Plainly he realised that this was a marijuana cultivation set up. He had already spent time in custody for heroin supply and he is not naïve in the field of illicit drugs. He is not, however, the mastermind of this enterprise, I conclude. He was found at Bathurst in a situation not manifesting any evidence of great wealth and he was still on the disability pension. More significantly in that respect the Probation and Parole reports, exhibits S1 and S2, the report by Dr Law, exhibit S4, and the psychological report, exhibit S3, indicate that this man is a person with reduced mental capacity. He is towards the lower end of functioning intelligence, he has suffered from anxiety to a significant degree and he has had psychological and psychiatric attention for those problems well before these events. On the whole I am prepared to accept his version of events. Nonetheless he has pleaded guilty to a serious crime." 8 At the hearing of the appeal the court drew attention to his Honour's expression that the applicant did "divert some electrical leads" and to the applicant's somewhat ambiguous testimony concerning the diversion of the electricity supply to the premises. Counsel confirmed, particularly having regard to the request for the scheduled offence contrary to the Electricity Supply Act being taken into account, that it was not disputed that the applicant diverted the electricity supply. Neither could it be disputed that such activity, apart from reducing or avoiding power usage charges, would be calculated to shield the illegal cultivation from detection. His Honour's reference to the absence of naivety in relation to drugs was a reference to the applicant's conviction at Parramatta District Court for supplying more than small but less than indictable quantity of heroin for which he was sentenced to imprisonment for 3 years dating from 23 March 2004 with a non-parole period of 21 months. Although, given the length of sentence, the applicant would have been ordered released to parole at the expiry of the non-parole period, it is not without significance that the present offence occurred only about six months after the expiry of that sentence. The applicant had a further separate conviction for being found on, entering or leaving drug premises contrary to s 36X of the Drug Misuse & Trafficking Act. Details have not been provided but by definition "drug premises" are places used for supply or manufacture of prohibited drugs or the growing of prohibited plants by enhanced indoor means. 9 The applicant relied upon a single ground of appeal which contained two express elements, viz: "1. The Sentencing Judge erred in imposing an overall sentence and non-parole period which were each manifestly excessive, having regard to: (a) the objective seriousness of the offence; and (b) the mental health problems suffered by the applicant" 10 It was submitted that his Honour fell into error in failing to assess the objective seriousness of the offence and, referring to the above extract from the Remarks on Sentence, it was submitted that it was not sufficient simply to assess the applicant's conduct as "a serious offence". 11 As was observed in the joint judgment in Markarian v The Queen (2005) 228 CLR 357 at 371, neither principle nor grounds of appellate review dictates a particular path that a sentencing judge must follow and that what is required is that all relevant considerations be taken into account in forming a conclusion. The implication of the applicant's submission was that, given the specification of a standard non-parole period for the offence, his Honour ought to have assessed where in the range of objective seriousness it fell: R v Way (2004) 60 NSWLR 168; SKA v R [2009] NSWCCA 186. Although his Honour did not use that language, setting a non-parole period of less than one-third of the prescription was a demonstration beyond argument that the seriousness was assessed as well below the middle of the range. Matters available to be considered are referred to later in these reasons. 12 The second element of the ground referred to the mental health problems suffered by the applicant. In the passage already quoted from the Remarks on Sentence express reference was made to evidence touching upon these. His Honour returned to them in dealing with a submission that he should vary the ratio between sentence and non-parole period in favour of the applicant. He said: "He (counsel) urges upon me that I should find special circumstances for varying the normal relationship between the head sentence and the non-parole period. I am prepared to do that because the mental condition described in the report is significant. He is, I conclude from the helpful report, exhibit S3, a person who has had some kind of a knock to the head when he was a child, which has reduced his brain development. He was not cross-examined about this, but he put to the court that he told the truth to the psychologist and this was not disputed in cross-examination. I accept it. But sometime in his early years, probably about twelve, he had a brain injury following some accident at the age of twelve. His current cognitive testing suggests overall limited cognitive function; this is exhibit S3 para.25. I take that into account and it causes me to structure the sentence as I will, in some part." 13 Again, when referring to the standard non-parole period which, as above noted is ten years, his Honour said: "However, it is a measure of the seriousness with which the parliament and the courts view such cases as this, that there would be a standard non-parole period of that kind. The limited role of the offender to which I have made reference and his reduced mental capacity are considerations which make it appropriate for me in calculating the sentence as I have done and bearing in mind the standard non-parole period as a guidepost but no more to set a non-parole period very substantially less than the standard non-parole period." 14 In a written submission counsel for the Crown noted that it was not submitted to the sentencing court that there was evidence sufficient to establish a causal relationship between the applicant's condition and the commission of the offence. It is true that relevance of a mental condition is not limited to such cases: TC v Regina [2009] NSWCCA 296. But it is plain that his Honour did not restrict his consideration and the applicant in fact received an amelioration of sentence assessment by reason of mental difficulties. 15 It was not disputed and his Honour accepted that the role of the applicant was limited. It was submitted that the applicant's criminal conduct lay at "the bottom of the range" of seriousness for the particular offence. Obviously it might be assessed as lower than the culpability of the unidentified person or persons who, it can be inferred, intended to nurture, harvest and market the illicit crop. Nevertheless, in common with like activities, every contributor possesses a degree of significance in the overall scheme. His Honour described the applicant's role as not insignificant. In this instance, the action taken by the applicant, particularly in bypassing the regular electricity monitoring was of marked importance. It is notorious that the power requirements of hydroponic cultivation are so high that usage at such a level is likely to attract attention. The applicant was not naïve and he did not suggest in his evidence that he needed to inquire as to why he was being asked to bypass the electricity monitor. The finding that immediately on arrival or shortly thereafter the applicant realized what the premises were for was not challenged. 16 Viewed in isolation from the legislative prescription of penalty and standard non-parole period, the imposition, reflecting the limited role of the applicant and as ameliorated by the factors take into account, might at first glance impress as severe. However, as the applicant pleaded guilty and the offence was not found to be in the category as high as "mid-range" the standard non-parole period was not directly applicable. Nevertheless his Honour recognized that he was bound to have regard to the prescription as "a guidepost": Way. In the event, the non-parole period set by his Honour and which the applicant must serve is less than one third of the prescribed standard which reflected an appropriate utilization of the guide. Any further reduction would suggest that the guide had been treated as relatively insignificant. 17 It has not been shown that his Honour erred in using the guide and, taking that and all relevant matters into account, the sentence was not disproportionately high. I am unpersuaded that his Honour's sentencing discretion has miscarried. 18 I would grant leave to appeal against sentence but dismiss the appeal. 19 SIMPSON J: I agree with the orders proposed by Grove J, and with his Honour's reasons. In agreeing with the outcome, I accord particular emphasis to the applicant's previous drug convictions. This was the view taken by the sentencing judge, a view I consider to have been correct. 20 RA HULME J: I agree with Grove 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. 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.