Van Cuong PHAM v R [2009] NSWCCA 266

New South Wales Court of Criminal Appeal

CITATION: Van Cuong PHAM v R [2009] NSWCCA 266

HEARING DATE(S): 19 June 2009

JUDGMENT DATE: 30 October 2009

JUDGMENT OF: Young JA at 1; Hidden J at 2; Latham J at 3

DECISION: Leave to appeal granted, appeal dismissed.

CATCHWORDS: CRIMINAL LAW - application for leave to appeal against sentence - cultivating commercial quantity of prohibited plant by enhanced indoor means - whether sentence manifestly excessive

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 Electricity Supply Act 1995

CATEGORY: Principal judgment

R v Godden [2005] NSWCCA 160 R v Quan [2006] NSWCCA 382 Huu Chien Nguyen v R [2007] NSWCCA 94 CASES CITED : R v Sciberras [2006] NSWCCA 268; (2006) 165 A Crim R 532 Truong v R [2006] NSWCCA 318 Van Cuong Nguyen v R [2008] NSWCCA 322 Truong v R [2009] NSWCCA 41 Thi Lan Nguyen v R [2009] NSWCCA 181

PARTIES: Van Cuong PHAM (Applicant) REGINA (Respondent)

FILE NUMBER(S): CCA 2008/16367

COUNSEL: H Dhanji (Applicant) V Lydiard (Respondent)

SOLICITORS: John Doolan (Applicant) S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/1080

LOWER COURT JUDICIAL OFFICER: Freeman DCJ

LOWER COURT DATE OF DECISION: 12 December 2008

IN THE COURT OF CRIMINAL APPEAL 2008/16367

YOUNG JA HIDDEN J LATHAM J

30 OCTOBER 2009 VAN CUONG PHAM v R Judgment 1 YOUNG JA : I agree with Latham J. 2 HIDDEN J : I agree with Latham J. 3 LATHAM J : The applicant, Van Cuong Pham, seeks leave to appeal against a sentence imposed on 12 December 2008 by Freeman DCJ (the Judge) following the applicant's plea of guilty to an offence of cultivate, by enhanced indoor means, a commercial quantity of a prohibited plant, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985, committed on 13 August 2008. The offence carries a maximum penalty of 15 years imprisonment. The applicant also pleaded guilty to an offence of organise/conduct/assist drug premises under s 36Z(1)(a) of the Drug Misuse and Trafficking Act 1985 (the Act), which carries a maximum penalty of 12 months imprisonment. 4 A further offence, namely, alter or add to electricity installation for metering without authority under s 70 of the Electricity Supply Act 1995, was taken into account on a Form One for the purposes of sentence on the cultivate offence. That offence carries a maximum penalty of 2 years imprisonment.

5 The applicant received a non parole period of 18 months with a balance of term of 18 months for the offence of cultivate prohibited plant. A term of 6 months imprisonment was imposed for the 36Z(1)(a) offence, but was made wholly concurrent. The sole ground of appeal is that the sentence is manifestly excessive.

The Offence 6 The following summary of the facts is taken from the Judge's remarks on sentence and is not disputed :- At the premises in Riverwood of which [the offender] was the sole resident there was a garage separate from the house and the garage had been extended. From relative proximity to that latter building it was possible to hear electrical machines operating, to feel the disposition of excess heat, and of course to smell cannabis on the air which was being expelled from that building. Doubtless on the basis of those observations the police visited the premises a couple of times before arriving with a search warrant on 13 August 2008. When the police arrived the offender opened the door, stepped outside, handed over the keys, and thereafter cooperated fully as one could expect, both in assisting the execution of the search warrant, identifying the keys necessary to open the three separate purpose-built rooms contained within the garage structure, and later taking part in the recorded interview in which he made full and frank admissions concerning his role, which was to water and fertilise the 112 plants, and to turn on and off the fluorescent type lighting with which their growth was being encouraged. The total street value is estimated to be over half a million dollars, and that quantity brings the cultivation into the commercial quantity. It was a sophisticated arrangement whereby each plant was grown in a separate pot. The pots were joined to an irrigation system through which flowed both water and nutrients. The plants had been assisted to grow upright by the use of either wire ties or wire netting. The laundry of the garage building contained a large amount of electrical transformers used to power this hydroponic setup, and they were in turn connected to the electricity supply by way of a bypass of the electricity meter. The set up was examined by an expert who deemed it dangerous and illegal. The cooperation of the offender extended to his willing supply of prints, and his fingerprints were later identified on numerous exhibits seized within the garage itself. 7 The Judge made the following findings with respect to the objective gravity of the offence :- *the offence was serious, given the very considerable quantity of cannabis capable of being produced. *the applicant's role in the commission of the offence was at a relatively low level, he having been recruited by other unidentified persons. *the applicant did not construct the purpose-built rooms, or buy or bring on site the plants or the fertiliser and was not responsible for bypassing the electricity meter. In effect, he acted as a "babysitter" for the crop. *the applicant expected that he would receive something between $10,000 and $15,000 for his contribution to the cultivation of the crop, and therefore committed the offence for financial gain. *A significant sentence was required in the interests of general deterrence. The Applicant's Subjective Case 8 The bulk of the Judge's remarks on sentence was occupied with the applicant's subjective circumstances. 9 The applicant had no prior criminal history. He was 43 years old at the time of sentence. The applicant was born in Vietnam, married at the age of 21 years and had his first child shortly thereafter. The family left Vietnam in 1988, travelling by boat to Hong Kong where they lived in a refugee camp for three years. There they had their second child. The applicant and his family entered Australia in 1991 and were granted Australian citizenship in 1994. He and his wife separated at that time, but they remain on good terms. 10 Largely because of the applicant's poor English skills, he was unable to obtain employment until 1996 when he gained a position as a stonemason. He retained that employment until 2002 when he sustained a significant back injury. The applicant has not worked since that time and has been reliant on workers compensation payments. There was medical evidence that confirmed the applicant's chronic back pain and daily medication. The applicant's alcohol consumption had increased as a consequence. In about 2004 the applicant began to consume cannabis on a daily basis in order to reduce his pain. 11 The applicant stated to the Probation and Parole officer that he engaged in the offence as a means of obtaining cannabis and making extra money. The applicant was finding it difficult to meet his living expenses from his workers compensation payments, although his financial hardship was partly attributable to his weekly gambling habit. The applicant's back injury was accompanied by depression, for which the applicant has taken medication consistently since 2003. The Judge accepted that the applicant was clinically depressed at the time of the commission of the offence and for that reason the emphasis on general deterrence in the sentencing exercise was "somewhat lessened".

Whether the Sentence is Manifestly Excessive 12 The applicant's argument begins with the proposition that, after factoring in the 25% discount attributable to the early plea of guilty, a notional starting point of 4 years is excessive, given the applicant's role in the offence, his subjective case, prior good character and his Honour's determination with regard to general deterrence. 13 The applicant seeks to support that contention by reference to two decisions of this Court in particular, both of which relate to the hydroponic cultivation of a commercial quantity of cannabis plants, prior to the introduction on 14 July 2006 of the penalty regime applicable to cultivation by "enhanced indoor means". In practical terms, these decisions relate to the hydroponic cultivation of more than 250 plants, because at that time the Act did not reflect the potential for increased risk of harm to users of hydroponically grown cannabis. Following recognition of the significantly increased yield of the more potent parts of the cannabis plant when grown hydroponically, the legislature prescribed 50 plants as the commercial quantity for such crops. 14 Before turning to those decisions, it is noteworthy that this reduction of the threshold for a commercial quantity in such cases was intended to signal an increase in the gravity of the offence of cultivation by these means, as viewed by the legislature. The second reading speech introducing the Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Bill on 25 May 2006 included the following :- Cannabis plants cultivated by hydroponic and other enhanced indoor means grow much faster than plants grown by traditional outdoor methods, and produce between five and seven times the yield. The current quantity amounts in the Drug Misuse and Trafficking Act at which maximum penalties apply for cannabis cultivation offences are based upon the yield, harvest patterns and profitability of outdoor, or "bush grown" cannabis. They are not an accurate reflection of the commerciality of hydroponic cannabis operations. This bill addresses this inequity.

Schedule 1 amends the Drug Misuse and Trafficking Act 1985. Item [1] inserts in the Act a definition of "cultivation by enhanced indoor means" in relation to a prohibited plant. The two leading methods of enhanced indoor cannabis cultivation—hydroponics and aeroponics—are covered by the definition. Item [16] inserts a new plant category into schedule 1 of the Act entitled "Cannabis plant cultivated by enhanced indoor means", with the commercial and large commercial quantities being set at levels five times lower than for outdoor cannabis to reflect the much higher yields produced by this method. This means that existing maximum penalties for cultivation offences involving commercial and large commercial quantities will cut in at these lower levels in respect of cannabis cultivated by enhanced indoor means to reflect the commerciality of operations of this size. 15 Against this background, I turn to a consideration of R v Godden [2005] NSWCCA 160 and R v Quan [2006] NSWCCA 382. Both of these offenders pleaded guilty at an early stage. 16 Godden was a successful appeal against the severity of a sentence of 3 years and 2 months imposed for the hydroponic cultivation of 319 cannabis plants. The offender was responsible for setting up and operating the plantation. He had done so during the currency of a bond to be of good behaviour. The sentence was held to be manifestly excessive having regard to a number of other decisions of the Court between 1993 and 1997. The Court substituted a sentence of 2 years and 2 months. 17 Quan was also a successful appeal against a sentence of 3 years and 2 months imposed for the hydroponic cultivation of 284 plants in the offender's home. Relevantly, the offender was a Vietnamese man with no prior criminal convictions whose gambling and alcohol addictions had motivated him to commit the offence for financial gain. The Court refrained from an explicit finding that the sentence was manifestly excessive, but felt constrained by the decision in Godden to reduce the offender's sentence in order to maintain consistency. A sentence of 2 years and 2 months was accordingly imposed. 18 The applicant also referred the Court to Huu Chien Nguyen v R [2007] NSWCCA 94. The offender in that case pleaded guilty in the Local Court to the cultivation of 278 cannabis plants between November 2005 and February 2006, in various parts of a house occupied by the offender, which were equipped with lights, fans and ventilation systems. A sentence of 2 years and 6 months was held not to be excessive, notwithstanding a submission that the sentence imposed on appeal in Godden for a greater quantity of plants suggested error. The rationale of Hulme J's judgment (McClellan CJ at CL and Hislop J agreeing) depended in large part upon the fact that "the actus reus of the offence charged consists simply of cultivation of not less than 250 plants." (at [20])

19 The applicant submits that the offender in Nguyen was significantly more culpable, presumably because Nguyen was found to be the principal and because of the number of plants. The fact that the notional starting point for the sentence in Nguyen (40 months) was 8 months less than the starting point in the applicant's case is said to demonstrate manifest excess. 20 This analysis suffers from the same flaw as the comparison sought to be made with Godden and Quan, namely, the applicant is not comparing like with like. In the light of the legislative change to the relevant quantity for the purpose of exposing offenders to a maximum penalty of 15 years imprisonment for the cultivation of not less than 50 plants, it is simply not correct to draw an analogy with other sentences imposed under an entirely different penalty regime. Under the Drug Misuse and Trafficking Act the quantity of the drug, and its relationship to the categories "indictable", "commercial" and "large commercial", are significant determinants of the seriousness of the offence ; R v Sciberras [2006] NSWCCA 268 ; (2006) 165 A Crim R 532 ; R v Truong [2006] NSWCCA 318. The applicant's offence is prima facie more serious than like offences under the former penalty regime considered by this Court. 21 The Crown drew the Court's attention to Van Cuong Nguyen v R [2008] NSWCCA 322. The Court rejected a ground of manifest excess in relation to a sentence of 5 years for the indoor cultivation of 105 plants in May 2007, that is, when the relevant commercial quantity was 50 plants. The offender in that case was the owner of the property and admitted to setting up the plantation. Relevantly, Tobias JA (James and Price JJ agreeing) said :- … what is clear is that 105 plants is just over twice the commercial quantity for plants cultivated by enhanced indoor means. …. It seems to me that it was clearly open to the sentencing judge to conclude that the objective seriousness of the offences was "somewhere about the middle of the range". 22 There was no express finding by the Judge as to where in the range indicated by the maximum penalty this offence lay, but, having regard to Tobias JA's views in Nguyen above, it would be difficult to sustain a submission that it was significantly below the mid range. 23 In Truong v R [2009] NSWCCA 41, the Court dismissed an appeal against the severity of a sentence of 3 years and 6 months for the indoor cultivation of 189 plants in January 2007. The offender's subjective circumstances in that case were consistent with those of the applicant. The offender was a Vietnamese refugee who was in financial difficulties as a result of the breakdown of her relationship. Although she owned the property in which the crop was found, she claimed to police that she was a "mere crop sitter", but that she expected to be paid for her services. The offender pleaded guilty at the first available opportunity. The sentence reflected the fact that the offender had the full time care of a young daughter. McClellan CJ at CL (James and Adams JJ agreeing) said :- I accept that the applicant has had a difficult life. It will never be easy for someone of limited education who by force of circumstances becomes a refugee and is required to settle in another country. When that person's circumstances are further exacerbated by difficulties in her domestic relationship the problems are greater. However, whatever be the difficulties such a person faces, our community does not tolerate the cultivation of illegal drugs and their propagation within the community. 24 Lastly, in Thi Lan Nguyen v R [2009] NSWCCA 181 the Court allowed an appeal against the severity of a sentence of 4 years for the indoor cultivation of 172 plants in December 2007. The offender, a Vietnamese national with no prior criminal convictions, had undertaken the care of the plantation on behalf of others. She pleaded guilty at the first opportunity. McCallum J observed at [55] that :- The sentence imposed ….. 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. It is particularly difficult to reconcile the applicant's sentence with the sentence imposed by the same judge in Truong , …. [where] it may be accepted that the role of the offender in that case warranted a more severe penalty … [as the owner of] the relevant premises. 25 Despite referring to the decision of Van Cuong Nguyen at [50], the Court was nonetheless persuaded that the sentence imposed at first instance upon Thi Lan Nguyen was "substantially harsher" than that imposed in the small number of comparable cases brought to its attention. The Court substituted a sentence of 3 years imprisonment, after taking into account the offender's isolation as a non-English speaker whose family remained in Vietnam. It is not without significance that there was no Form One offence to be taken into account, as in the applicant's case. 26 In my view, the three decisions of this Court that deal directly with offences committed under the new penalty regime tend to establish that the applicant's sentence was well within range. Considerable caution ought to be exercised in reaching any conclusion that a given sentence is outside the appropriate range when so few prosecutions have been brought to the Court's attention. The applicant bears the onus of satisfying the Court that the sentence is not just severe, but that it is manifestly excessive. I am not so persuaded. 27 I propose the following orders :- 1. Leave to appeal granted. 2. Appeal dismissed. **********

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