CO, Ngoc Van v R [2011] NSWCCA 148

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: CO, Ngoc Van v R [2011] NSWCCA 148 Hearing dates: 8 February 2011 Decision date: 28 June 2011 Before: GILES JA [1] RS HULME J [2] ADAMS J [39] Decision: Leave to appeal granted. Appeal dismissed. Legislation Cited: Drug Misuse and Trafficking Act 1985 s23(2)(a) and s33(3) Crimes (Sentencing Procedure) Act 2007 Cases Cited: Wong v R [2001] HCA 64; (2001) 207 CLR 584 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 R v Hung Phuc LY (unreported, 7 October 2010) Wong v R [2010] NSWCCA 160 Phan v R [2010] NSWCCA 8 Tran v R [2010] NSWCCA 72 R v LP [2010] NSWCCA 154 Pham v R [2011] NSWCCA 3 Category: Principal judgment Parties: Ngoc Van CO Regina Representation: Mr M Ramage QC Ms J Dwyer AKN & Associates S Kavanagh File Number(s): 2009/230880 Decision under appeal Date of Decision: 2010-04-09 00:00:00 Before: Keleman DCJ

Judgment 1GILES JA For the reasons given by RS Hulme J, none of the grounds of appeal is made out - I agree with the orders proposed by his Honour. 2RS HULME J: On 9 April 2010 this Applicant for leave to appeal was sentenced by Keleman DCJ in respect of an offence of cultivating not less than a large commercial quantity of cannabis plants by enhanced indoor means contrary to s23(2)(a) and s33(3) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for the prescribed offence is 20 years and a fine of 5000 penalty units. A standard non-parole period of 10 years imprisonment was specified by the Crimes (Sentencing Procedure) Act 2007 which commenced on 1 January 2008. The large commercial quantity for prohibited plants cultivated by enhanced indoor means is 200 or more and the Applicant's offence involved 266 plants. 3The sentence imposed was of imprisonment for 7 years and 6 months, including a non-parole period of 4 years, both periods commencing on 16 October 2009. His Honour declined to impose a penalty on an associated offence of dealing with electricity without authority. 4The Applicant resided at the premises where the cultivation occurred, having leased them 12 months earlier. The premises themselves were heavily fortified with steel roller shutters installed on all windows, steel security doors installed on all entrances and numerous sensor lights and CCTV cameras installed on the exterior. Located in five rooms inside the premises was a sophisticated hydroponic set up. The plants varied in size from 100mm to in excess of 1 metre. Electricity to the premises was supplied via an illegal bypass from the mains power lines. 5On the occasion when the police searched the premises the Applicant was arrested. When interviewed he made full admissions to nurturing the 266 plants for the previous 3 months and advised that he had intended to sell the cannabis leaf following the harvesting of the plants. However, to a psychologist whose report was tendered in evidence, the Applicant asserted he was merely cultivating for someone else and was to receive but $5000 for his efforts. His Honour did not accept that the Applicant's role was so limited and was satisfied that the Applicant "was fully involved in all aspects of the cultivation process and intended harvesting the cannabis plants for himself with the intention of selling the cannabis leaf harvested". His Honour was of the opinion that the offence fell within the middle range of objective seriousness but at the lower end of that middle range. 6The Applicant was aged 44 at the time of his arrest and had no prior criminal history. He received a discount of the order of 25% for his plea. He was born and raised in Vietnam leaving there by boat when 22. He spent some time in a refugee camp in Hong Kong. In 1992 he was accepted as a refugee in New Zealand. He and his partner migrated to Australia in 1997 and their three children have been born here. 7The Applicant seems to have been a hard worker. As a result of long hours his relationship with his partner broke down, the Applicant taking custody of their two daughters. The need to care for them resulted in the Applicant giving up employment and going on to a single parent's pension. He was very distressed in consequence of the marriage break up and suffered significant depression. 8His Honour accepted that the Applicant was a good husband and father, was not a user of illegal drugs, used alcohol only in moderation and did not have a gambling problem; his parents had significant health problems and from the time of obtaining work in New Zealand until he gave up work to care for this daughters the Applicant had been sending money to them. His Honour accepted that probably some of the money the Applicant was to receive from the marijuana would be passed on to help his parents in Vietnam. 9Because of his Honour's view that the Applicant had attempted to minimise his role, his Honour concluded that his remorse was limited. However his Honour also found that "if the offender maintains his present motivation his prospects of rehabilitation are reasonably good and he is unlikely to re-offend in the future." 10Later his Honour observed:- "Having regard to the offender's age, the circumstance that this is to be his first custodial sentence, as I am satisfied he will benefit from an extended period of supervision to assist him deal with his psychological and other problems and to maintain strategies to assist in his rehabilitation generally, I find special circumstances in accordance with s 44(2) of the Crimes (Sentencing Procedure) Act 1999." 11The basis for that conclusion of his Honour is not apparent. While a psychologist's report suggested that the Applicant might benefit from relationship counselling with his wife, the author of the Pre-sentence report remarked that "There are no obvious areas of his (the Applicant's) life that could be addressed by a period of supervision ... (and the Applicant) has been assessed as unlikely to require, or benefit from supervision by this Service ..." 12The grounds of appeal are:- 1. The sentence imposed was unduly harsh and severe. 2. The sentencing Judge erred in commencing with an excessively high sentence. 3. The sentencing Judge erred:- (a) in making insufficient allowance for the favourable and positive subjective circumstances of the Applicant as detailed under Ground (1) above; (b) in determining that considerations of general deterrence punishment were of particular importance; (c) in determining that the offence fell in the middle of the range of objective seriousness, albeit at the lower end of the middle range, and in his application of that finding; (d) in determining that the Applicant's remorse was limited. 13It is convenient to deal with these grounds somewhat out of order.