Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Yu v R [2019] NSWCCA 96 Hearing dates: 29 April 2019 Decision date: 10 May 2019 Before: Hoeben CJ at CL at [1]; Davies J at [62]; Fagan J at [63] Decision: (1) Leave to appeal is granted. (2) The appeal is dismissed. Catchwords: CRIMINAL LAW – sentence appeal – one count of cultivating a prohibited plant greater than the applicable commercial quantity – whether factual findings open to the sentencing judge – whether finding of special circumstances should have been made – whether applicant's deprived upbringing relevant – whether sentence was manifestly excessive – grounds of appeal not made out – leave to appeal granted but appeal dismissed. Legislation Cited: Criminal Appeal Act 1912 (NSW) – s 5(1)(c) Drug Misuse and Trafficking Act 1985 (NSW) – ss 23(2)(a), 25(1) Cases Cited: AB v R [2014] NSWCCA 31 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 El-Afchal v R [2015] NSWCCA 112 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 Lowndes v The Queen [1999] HCA 29; 195 CLR 665 Majid v R [2010] NSWCCA 121 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Regina v Cramp [2004] NSWCCA 264 Regina v Fidow [2004] NSWCCA 172 R v M.A.K., R v M.S.K. [2006] NSWCCA 381, 167 A Crim R 159 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Sutton [2004] NSWCCA 225 R v Wong [2018] NSWCCA 20 Tak Fat Wong v The Queen [2001] HCA 64; 207 CLR 584 Trad v R [2009] NSWCCA 56 Windle v R [2011] NSWCCA 277 Wong v The Queen [2001] HCA 64; 207 CLR 584 Category: Principal judgment Parties: Denh Cooc Yu – Applicant Regina – Respondent Crown Representation: Counsel: S Kluss – Applicant E Balodis – Respondent Crown Solicitors: Ren Zhou Lawyers – Applicant Solicitor for Public Prosecutions – Respondent Crown File Number(s): 2011/1277272015/381940 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 22 September 2017 Before: Colefax SC DCJ File Number(s): 2011/127727 2015/381940 Judgment 1. HOEBEN CJ at CL: Offences and sentence The applicant pleaded guilty in the Local Court to one count of cultivating a prohibited plant greater than the applicable commercial quantity pursuant to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA). This offence has a maximum penalty of imprisonment for 15 years. 1. There were two matters taken into account on a Form 1: 1. Knowingly take part in cultivating a prohibited plant greater than the applicable commercial quantity, contrary to s 23(2)(a) of the DMTA. 2. Possessing for supply a quantity of cannabis, contrary to s 25(1) of the DMTA. 1. On 22 September 2017, his Honour Judge Colefax SC sentenced the applicant to a term of imprisonment of 4 years and 6 months, commencing 29 April 2017 with a non-parole period of 3 years and 4 months. His Honour applied a 25 per cent discount for the utilitarian value of the plea early plea of guilty. The starting point for the head sentence was noted to be 6½ years. 2. The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal from that sentence on the following grounds: Ground 1 – His Honour erred in finding that the applicant at the time of sentencing lacked remorse Ground 2 – His Honour erred in finding that the applicant sought to minimise his criminality Ground 3 – His Honour erred in concluding that the applicant had only guarded prospects of rehabilitation Ground 4 – His Honour erred in not taking into account the applicant's deprived upbringing and limited education Ground 5 – His Honour erred in failing to find special circumstances and adjusting the ratio between the head sentence and the non-parole period accordingly Ground 6 – Due to the errors identified in Grounds 1 – 5 (inclusive above) the sentence imposed by his Honour Judge Colefax of the District Court on 22 September 2017 was manifestly excessive FACTUAL BACKGROUND 1. On 20 June 2010, police were conducting surveillance of premises at Baulkham Hills. On that day, a motor vehicle registered to this applicant was parked near the front door of the premises. The Baulkham Hills premises were owned by a Mr Ma. 2. Two days later, Mr Ma was arrested and a search warrant was executed in relation to those premises. 3. During the search, police found that the indoor aspects of the property had been modified for enhanced cultivation of cannabis. In the downstairs area, 126 immature cannabis plants, ranging from 10 to 20 cms in height, were found. 4. Under the internal stairs, a small incubator was found with a number of cannabis seedlings in it. Upstairs police found a large growing area with 50 mature cannabis plants that were approximately 1 to 1.5 metres in height. 5. Also during the execution of the search warrant, police found that an internal electricity board had been bypassed. Police found further cannabis plants throughout the premises. In total, 256 cannabis plants were found. 6. During the course of the execution of the search warrant, the fingerprints of the applicant were found on lampshades in rooms where cannabis plants had been growing. A soft drink can was found in the bathroom of the premises which contained the applicant's DNA. 7. The applicant admitted for the purpose of sentence that he knowingly took part in the cultivation of a large commercial quantity of cannabis at those Baulkham Hills premises by assisting in tending the plants. This was the first matter on the Form 1. 8. On 1 November 2014, New South Wales Fire and Rescue attended residential premises at Dundas Valley in response to a report of smoke emanating from the roof. On investigation, there was no fire. The smoke was associated with the overloading of the electrical system within the house. The electrical system was overloaded because the whole of the premises had been converted for the hydroponic growing of cannabis and there was extensive electrical cabling through the house. 9. There was no-one in occupation of the premises at the time that Fire and Rescue personnel attended. 10. On 2 November 2014, a search warrant was executed at the Dundas Valley premises. Police observed that all three bedrooms had been converted to accommodate a sophisticated hydroponic set-up. A living room overlooking the rear yard had been modified for such use. There was a fortified door separating the living room from the hallway. Two of the rooms of the house had a large number of cannabis plants growing under lights and an elaborate irrigation system had been installed to assist the hydroponic growth of the plants. 11. Police found other cultivating equipment such as monitors, fans, transformers, netting and charcoal filters. In another room, although set up for the cultivation of cannabis, no plants were found. It appeared to police that such plants may have been recently harvested. 12. In another room police found a number of empty pots, fertiliser, netting and three seedling trays containing a number of small cannabis plants under a large light. The windows and floors of all rooms were completely covered in thick plastic. 13. In total, police seized 166 lightshades, 166 globes, 24 transformers and an unspecified quantity of fertiliser. Police found 48 power points attached to three homemade electrical outlet boxes in the hallway with extensive cables to and from that outlet box. 14. A bed was found in the lounge-room which appeared to have been slept in and there was some clothing scattered throughout the house. There were also personal hygiene items found in the bathroom. The applicant was the sole occupant and tenant of those premises. He admitted to police that he had cultivated a commercial quantity of cannabis plants, that he made payments for rent and other utilities in connection with the premises, that he tended the plants and that he harvested the cannabis. 15. Those were the facts which constituted the principal offence for which the applicant was sentenced. 16. In addition to finding 68 cannabis plants, police also found four cryovac-sealed plastic bags of cannabis in the lounge-room. They had a total weight of 3,602 grams. In addition, three garbage bags containing cannabis were also found in the house weighing 4,684 grams. Those facts constituted the deemed supply of a prohibited drug matter which was the second matter on the Form 1. SENTENCE PROCEEDINGS 1. The applicant did not give evidence in the sentence proceedings. His subjective circumstances were advanced through the psychological report of Mr Jason Borkowski. 2. His Honour found that the role of the applicant was quite significant insofar as the production of the cannabis was concerned. In terms of the objective seriousness of the principal offence, his Honour found that it was close to but not at, the middle of the range for an offence of that type. 3. In relation to the applicant's subjective case, his Honour noted that the applicant was aged 52. He was born in Vietnam, where his father was a teacher and his mother was a nurse. His parents worked long hours with the result that the applicant's older brother was mainly responsible for raising him in the absence of the parents. The family was of Chinese heritage and endured persecution in Vietnam. 4. When the applicant was aged 13, his family fled Vietnam and spent the next 10 years in Hong Kong in a refugee camp before obtaining approval to emigrate to Australia. The applicant told Mr Borkowski that life in that refugee camp was grim. Among other things, the applicant's sister died in childbirth in that camp. 5. Although the applicant's father was a teacher, the applicant had only limited education. 6. Since he arrived in Australia, the applicant had only sporadic and part-time work in various endeavours, such as that of a fishmonger and a housepainter. His work was never consistent or substantial and he was substantially dependent upon Centrelink benefits. The applicant's command of the English language is limited. 7. On the basis of the psychology report, his Honour found that as a result of his early life, the applicant suffered from an adjustment disorder and a major depressive disorder. No submission was made in the sentence proceedings to the effect that there was any causal connection between those disorders and the offences for which he was being sentenced. 8. His Honour noted that this was not the applicant's first offence. In 2000 he committed the offence of deemed supply of heroin for which he was sentenced to imprisonment for 4 years and 6 months, with a non-parole period of 2 years and 6 months. In relation to that offence, there was one matter on a Form 1 of goods in custody reasonably suspected of being stolen. 9. After the applicant was released, he met a woman who was to become his first wife. This relationship lasted for approximately eight years and was said to have come to an end as a result of her gambling problems. The applicant told the psychologist that after he divorced his first wife, he travelled to China where he met a woman whom he subsequently married and sponsored to come to Australia. 10. The applicant told Mr Borkowski that he had borrowed $10,000 "from an acquaintance he met in a bar/pub, money that he would use to cover the costs of getting his second wife approved to move to Australia. He explained that after borrowing the money he was offered an opportunity to repay the debt by way of assisting in the cultivation of the plants" (Psychological report 6.5). 11. His Honour did not accept that explanation and observed: "[t]his seems an implausible event – and is one of a number of matters raised in the report which could be similarly described. He said that he was offered an opportunity to repay the debt by assisting in the cultivation of the plants at the Dundas Valley premises. He said that he was asked to rent the premises and that he was given approximately $2,500.00 a month from the people he owed the $10,000 to for the rent and utility of those premises. He also said that after engaging with those persons for approximately three months, he discontinued his contact with them but continued to rent the premises in his own name. Where he got the funds to pay that rent, and why the other persons would have left the expensive and extensive equipment and all of the cannabis plants in the premises, is not explained. This version of events is also implausible. Similarly, his explanation in connection with his fingerprints and DNA being found in the Baulkham Hills premises some five years earlier is also difficult to understand or accept given the inclusion of that matter in the Form 1. Because of these considerations, I am not persuaded on the balance of probabilities that Mr Yu is remorseful or regretful for his involvement in the offence and the two matters on the Form 1. He certainly did not give sworn evidence to that effect. I give little weight to the second-hand expression of remorse in the psychologist's report. Remorse is often an important factor in assessing an offender's prospects of rehabilitation. Another factor is whether an offender is frank with the Court about the offending conduct, or whether (as in this case) he seeks to minimise his criminality. Ultimately I am of the view that Mr Yu's prospects for rehabilitation are, at best, guarded. Because of the offender's prior history, his lack of remorse, his minimising of his criminal activity, and his guarded prospects for rehabilitation, specific deterrence is a significant factor in this case. And of course general deterrence is also a significant factor." (Sentence judgment 8.9-10.2) 1. His Honour noted that no submission was made in the sentence proceedings for any variation of the ratio of the non-parole period to the head sentence and commented "[n]or reasonably could there have been one in the circumstances." (Sentence judgment 10.9) GROUNDS OF APPEAL Ground 1 – His Honour erred in finding that the applicant at the time of sentencing lacked remorse Ground 3 – His Honour erred in concluding that the applicant had only guarded prospects of rehabilitation 1. It is convenient to deal with these two grounds together. 2. The applicant submitted that his Honour's rejection of genuine remorse and contrition failed to take into account that he had pleaded guilty at the first available opportunity. The applicant submitted that as a result his Honour had failed to recognise that one of the principal indicia of remorse and contrition was an early plea and it was an error on the part of his Honour not to do so. 3. The applicant submitted that this erroneous finding led to further error when his Honour went on to find that his prospects of rehabilitation were "guarded". The applicant submitted that his Honour's finding of lack of remorse clearly influenced his finding as to the prospects of rehabilitation. The applicant noted that his Honour's finding was contrary to that of Ms Lincoln, the Community Corrections Officer, who had prepared the pre-sentence report. There she said that the applicant was assessed as having a low risk of re-offending. Consideration 1. Although the psychological report with its reference to the applicant's contrition and remorse provided some evidence to that effect, his Honour was not obliged to make such a finding. It was well open to his Honour, for the reasons which he identified, to reject that evidence. Those matters were the applicant's implausible explanation for his offending, his attempts to minimise his involvement in the offending and the absence of sworn testimony to that effect. 2. The applicant's plea of guilty of itself did not necessarily indicate either remorse or contrition. The extent to which a plea of guilty evidences remorse and contrition so as to attract leniency depends to a large degree upon whether or not the plea resulted from a recognition of the inevitable: Majid v R [2010] NSWCCA 121 at [48]; Windle v R [2011] NSWCCA 277 at [46]-[47]. It also depends upon the surrounding circumstances against which the plea of guilty can be assessed. 3. Here there can be no argument that the plea of guilty was entered in the face of a strong prosecution case. The plea of guilty was as much a recognition of the inevitability of conviction as it was of remorse: R v Sutton [2004] NSWCCA 225 at [12]; AB v R [2014] NSWCCA 31 at [40]. Moreover, there was nothing in the surrounding circumstances to suggest that there was an element of either remorse or contrition in the entry of the early plea of guilty. On the contrary, his Honour identified a number of indicia which indicated a lack of remorse and contrition. 4. There was no evidence before his Honour to substantiate the proposition that the applicant had good or even reasonable prospects of rehabilitation. Remorse is an important factor in determining whether an offender is likely to re-offend in that without true remorse it is difficult to see how such a finding could be made: R v M.A.K., R v M.S.K [2006] NSWCCA 381; 167 A Crim R 159 at [41]. Further, the applicant had been convicted of a drug offence in 2000 and had committed one of the Form 1 offences in 2010. 5. Similar issues arose in El-Afchal v R [2015] NSWCCA 112 where Hall J (Hoeben CJ at CL and R A Hulme J agreeing) said at [55]-[56]: "55 In reaching his ultimate conclusion on the issues of delay and rehabilitation, his Honour observed, as noted above, that assessing the applicant's prospects of rehabilitation was "not a straightforward matter". In that respect, his Honour noted that the genuineness or otherwise of an offender's expressions of remorse is a relevant matter in making that assessment. In this case, his Honour rejected the applicant's expressions of remorse as genuine (ROS at p 15). He also considered that the applicant's attempt to minimise his moral culpability in relation to the subject offences was an additional matter that affected the assessment to be made as to the level of rehabilitation that had been achieved. 56 In a case such as the present, where there has been a past history of offending of some significance and factors exist which are considered as reducing an offender's reliability, the cogency or the strength of the evidence put forward to support a submission of substantial rehabilitation may also be reduced. A sentencing judge is in the best position to make a judgment of whether such a finding can be reached in the absence of evidence from the offender himself or herself." 1. These grounds have not been made out. Ground 2 – His Honour erred in finding that the Applicant sought to minimise his criminality 1. The applicant submitted that the only material his Honour had before him on sentence was a statement of agreed facts, a pre-sentence report and a psychologist's report. The applicant noted that in the pre-sentence report, the author had observed: "Mr Yu agreed with the police facts pertaining to the offence. He took full responsibility for his role and taking part in facilitating illegal activity and drug cultivation as a way of repaying his financial debt." The applicant submitted that in the light of this evidence, it was not open to his Honour to conclude that he had sought to minimise his criminal activity so that error had resulted. Consideration 1. What was recorded in the pre-sentence report sits uneasily with the history given by the applicant to the psychologist, Mr Borkowski. In relation to the first Form 1 offence of being knowingly concerned in a commercial cultivation, the applicant told Mr Borkowski that he had been retained to deliver lights to the premises and it was only after his arrival that he became aware that cannabis cultivation was taking place. His Honour regarded that explanation as implausible and inconsistent with his plea of guilty. 2. In relation to the principal offence, his Honour found that the applicant's account of a loan of $10,000 from an acquaintance whom he had met in a bar was not worthy of acceptance. His Honour noted that this account and the applicant's description of how he came to disassociate himself from the cultivation of cannabis after three months was not only implausible but offered no explanation for his continued occupation of the premises, the presence of the valuable infrastructure located thereon and how he supported himself after that three month period. The applicant sought to explain his drug offending in 2000 in a similar fashion. 3. When regard is had to what the applicant told Mr Borkowski, it was well open to his Honour to find that the applicant was seeking to portray himself as a victim of circumstances and refused to acknowledge how his choices had led him to repeatedly commit drug-related offences. It follows, therefore, that there was ample material before his Honour which enabled him to conclude that the applicant was trying to minimise his criminality. This ground of appeal has not been made out. Ground 4 – His Honour erred in not taking into account the applicant's deprived upbringing and limited education 1. The applicant submitted that although his Honour referred to the fact that he had a troubled upbringing and was poorly educated, he had failed to take those matters into consideration when sentencing him. The applicant submitted that this amounted to error. Consideration 1. His Honour was clearly aware of the hardship which the applicant had endured in his early years. There was, however, nothing before his Honour to indicate that this hardship or background contributed to his offending. Not only was there no evidence before his Honour to that effect, but no submission was made. 2. This ground of appeal is misconceived. It involves a misunderstanding of the principles applied by the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571. The relevant principle was explained by the plurality (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) at [43] where they said: "43 … The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending." 1. The facts of this case are far different from those considered by the High Court in Bugmy v The Queen. Most particularly, there is no connection between the hardship described by the applicant and his offending such as there was in Bugmy v The Queen. In oral argument counsel for the applicant was unable to explain in what way his Honour had failed to take the applicant's background and upbringing into account. 2. This ground of appeal has not been made out. Ground 5 – His Honour erred in failing to find special circumstances and adjusting the ratio between the head sentence and the non-parole period accordingly 1. The applicant submitted that there was evidence available to establish special circumstances and that his Honour had erred in failing to do so. Apart from that bare assertion, the Court was not taken to any specific evidence. Consideration 1. As already indicated, no submissions were made by defence counsel in the sentence proceedings concerning special circumstances. In those circumstances, it was not incumbent on his Honour to consider that issue. 2. In any event, the variation of the statutory ratio between the head sentence and the non-parole period is a discretionary matter. One of the matters to be taken into account is the need to ensure that the time that an offender must spend in prison reflects all the circumstances of the offences and the offender, including the objective gravity of the offences and the need for general and specific deterrence: R v Wong [2018] NSWCCA 20 at [75]. 3. It is trite to observe that an adjustment for special circumstances "raises so many matters of a discretionary character that this Court should be very slow to intervene": Regina v Cramp [2004] NSWCCA 264 at [31]. It is only if the non-parole period is manifestly inadequate or manifestly excessive should this Court intervene: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [73] and Regina v Fidow [2004] NSWCCA 172 at [19]. Ultimately the degree or extent of any adjustment of the "statutory ratio" is a matter for the discretion of the sentencing judge: Cramp at [31]; Trad v R [2009] NSWCCA 56 at [33]. In the absence of an identified requirement for a lengthier period of parole, his Honour did not err in not making a finding of special circumstances. 4. This ground of appeal has not been made out. Ground 6 – Due to the errors identified in Grounds 1 – 5 (inclusive above) the sentence imposed by his Honour Judge Colefax of the District Court on 22 September 2017 was manifestly excessive 1. No specific submissions were made either in writing or orally in relation to this ground of appeal other than to generally submit that cumulatively the effect of Grounds 1 – 5 was to demonstrate that the sentence was manifestly excessive. Consideration 1. To establish that a sentence is manifestly excessive an applicant must demonstrate that the sentence was "unreasonable or plainly unjust": Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]. This has to be established in a context where 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 application of principle: Markarian at [27]. 2. Because there is no "correct" sentence, it is not sufficient that this Court might have exercised the sentencing discretion in a manner different from the manner in which the sentencing judge exercised his discretion: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]. Intervention by this Court is not warranted simply because the sentence is markedly different from other sentences that have been imposed in other cases: Tak Fat Wong v The Queen [2001] HCA 64; 207 CLR 584; Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [59]. 3. In the present case, the sentence of imprisonment that the sentencing judge imposed on the applicant was not unreasonable or plainly unjust. This is so when regard is had to: 1. the maximum penalty; 2. the two matters on the Form 1; 3. the applicant's role in leasing the premises, paying the rent and other expenses, tending to the plants and harvesting the cannabis; 4. the quantity of drugs, being 68 cannabis plants (50 being the amount for a commercial quantity by enhanced indoor means) with an estimated street value of $114,000; 5. the applicant's prior conviction for a serious drug supply which meant that the leniency that could have been extended to him without such a history was not available; and 6. that no objection was taken to his Honour's finding that the offence was close to but not at the middle of the range. 1. This ground of appeal has not been made out. Conclusion 1. Accordingly, the orders which I propose are: 1. Leave to appeal is granted. 2. The appeal is dismissed. 1. DAVIES J: I agree with Hoeben CJ at CL. 2. FAGAN J: I also agree with Hoeben CJ at CL. ********** 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. Decision last updated: 10 May 2019