Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Hanh Thi Nguyen v Regina [2011] NSWCCA 92
• Hearing dates: 1 April 2011
• Decision date: 06 May 2011
• Before: Simpson J at 1; Davies J at 18; Grove AJ at 19

Decision

1. Leave to appeal against sentence granted.

2. Appeal dismissed.

• Catchwords: CRIMINAL LAW - Cultivating not less than a large commercial quantity of prohibited plants (cannabis) by enhanced indoor means -applicant's naivety and vulnerability - offence in the mid-range of objective gravity - discussion of indicator in the role of an offender as principal - contributing financially - standing to share in the profit - management of operation - decision making role - unsupervised in advancing the cultivation - in charge of the operation - re-planting failed crops - recruiting assistance - whether offender could be categorised as principal in enterprise (Simpson and Davies JJ - No, Grove AJ - Yes) - sentence not manifestly excessive
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999
• Cases Cited: R v Way (2004) 60 NSWLR 168; Tran v R (2010) NSWCCA 72; R v LP (2010) NSWCCA 154; Wong v R (2010) NSWCCA 160
• Category: Principal judgment
• Parties: Hanh Thi Nguyen (Applicant); Regina (Respondent)
• Representation: Counsel: H. Dhanji SC (Applicant); S. Dowling (Respondent); Solicitors: J. Doolan (Applicant); S. Kanavagh, Solicitor for Public Prosecutions (Respondent)
• File Number(s): 2009/149545

Decision under appeal

• Date of Decision: 2010-04-16 00:00:00
• Before: Syme DCJ
• File Number(s): 2009/149545

Judgment

1 SIMPSON J: I have read in draft the judgment of Grove AJ. Subject to what follows, I agree with his Honour's analysis. I do not propose to restate the facts, or the arguments.

2 I have difficulty with the proposition that the applicant was a "principal" in the drug enterprise. A finding to that effect was made by the sentencing judge where she held that the applicant and Mr Ngo were, on the evidence available, partners and joint principals of the operation (ROS p 6), and, again, in saying, of the applicant, that "she was one of at least two principals" (ROS p 7). She explained this by adding:

"[The applicant] was physically involved in an important part of the cultivation process; she was not associated with the major part of the setting up but was involved in the day to day management of the crop and recruited Mr Vu to assist her. She was seeking to profit from the venture but there is no information as to how much she was seeking to make."

This was immediately followed by:

"I accept that she was used by others who may have preyed upon her naivety and vulnerability ..."

3 The fact finding exercise for her Honour was difficult. The Agreed Statement of Facts was, in part, based upon a recorded interview in which, as the applicant subsequently acknowledged, she did not tell the truth. The evidence the applicant gave in the sentencing proceedings was, in many respects, not credible, as her Honour found. That left the sentencing judge with little basis for evaluating the role played by the applicant.

4 There was, in my opinion, no proper basis for the finding that the applicant was a principal. "Principal" is an expression that is commonly used in sentencing in respect of drug offenders, but may not have a commonly accepted or applied meaning. In my opinion, the indicator of the role of an offender as "principal" involves at least some of the following characteristics:

• contributing financially to the cost of setting up the operation;

• standing to share in the profit (as distinct from receiving payment);

• having some hand in the management of the operation (although it is well recognised that principals will, so far as possible, distance themselves from the day to day operation, they nevertheless maintain considerable control over the enterprise);

• having some decision making role (which may not be different from the item above).

• This does not purport to be anything like an exhaustive list. There may well be other features that indicate that an offender ought to be characterised as a principal.

5 In my opinion, in this case, the evidence fell far short of establishing any of these characteristics.

6 A very considerable financial outlay had been made in establishing the cultivation. The premises were rented (which, one would expect, would have involved payment of a bond, and some rent in advance). Considerable modifications had been made to the premises. The Statement of Facts asserted that no less than five rooms had been "fitted out as sophisticated hydroponic growing rooms". There were, on my count, no less than 57 "high wattage heat lights/lamps". These were supplied with electricity through transformers. The cannabis plants (at least 101, on my count) in four rooms were in pots. There were carbon filters, fans, and pumps. There was "nutrient rich water".

7 There was not the slightest evidence that the applicant was in any position to contribute anything financially to this enterprise. Her answer, in the interview, that she had paid the rent from savings, was unbelievable, and did not in any way account for the set up costs. True, her oral evidence threw no light on either the source of the rent money or the source of the set up costs, and anything she did say had to be treated with considerable scepticism.

8 While it could be accepted that the applicant had a day to day hands-on role in the cultivation, I do not discern in the evidence anything on which could reasonably be based a conclusion that she had any management or decision making role (other, perhaps, than when to water the plants) such as to justify the conclusion that she occupied a position as principal (even one of two principals).

9 It is difficult also to reconcile the finding that the applicant was a principal with the subsequent finding that others may "have preyed upon her naivety and vulnerability". In my opinion the finding that the applicant was a principal was not open on the evidence.

10 There is no ground of appeal that expressly challenges this finding of fact. The issue was raised only obliquely in written submissions, in which it was put that the applicant was not responsible for the "sophistication" of the operation. I would accept that.

11 The finding as to the role played by an offender in a drug enterprise is an important issue going to the assessment of the objective gravity of the offence.

12 Since this was a case in which a standard non-parole period ( Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") Pt 4 Div 1A) applied, the assessment of objective gravity was of considerable significance. In respect of an offence of mid-range objective gravity (where conviction follows trial) a standard non-parole period of 10 years is prescribed. The finding made by the sentencing judge that the applicant's offence was "slightly less than mid-range seriousness but at a level much closer to mid-range than low range" was, to a significant extent, based upon the finding that the applicant was a principal.

13 The result is that, in my opinion, the sentencing proceeded upon a false premise.

14 The Court was provided with summaries of cases in which offenders have pleaded guilty to the same offence. Invariably, in those cases, the sentences imposed were substantially less than the 10 year standard non-parole period. It is true that, since each of the offenders in those cases entered pleas of guilty, the standard non-parole period did not strictly apply, and, even in respect of a mid-range offence, a reduction could be expected by reason of the plea of guilty, the sentences are still well below what might be expected following diligent application of the requirements of Pt 4 Div 1A of the Sentencing Procedure Act. What these cases appear to disclose is that the standard non-parole period is not being given the recognition due to statutory mandate.

15 As I have mentioned, an offence in the mid-range of objective gravity attracts a standard non-parole period of 10 years. A reduction of 25 per cent allowed in respect of the plea of guilty (which is what the sentencing judge allowed the applicant) would reduce that non-parole period to 7 years and 6 months. I do not understand the sentencing judge to have found any other reasons for departure from the standard non-parole period. Assuming, because of what I consider to be the more limited role of the applicant than that found by the sentencing judge, the offence is, to some extent, below the mid-range of objective gravity, that circumstance would allow a further reduction. A finding that the offence is "to some extent" below mid-range of objective gravity does not adequately discharge the obligation under Pt 4 Div 1A. Given my view that the applicant could not be found to be a principal, I would consider the offence to be moderately below mid-range of objective gravity. However, given also the evidence of her day to day activities, her constant presence, and her responsibility for the maintenance of the plants, the extent to which it falls below mid-range is modest. In this respect, I observe that, in my view, ordinarily one would expect the objective gravity of the offence of a principal to be assessed at significantly above the mid-range of objective gravity.

16 The sentence imposed included a non-parole period less than half of the standard non-parole period. In my opinion, no lesser sentence could possibly be warranted.

17 For those reasons, although I take a different approach to that taken by Grove AJ, I would reach the same result, and agree that leave to appeal ought to be granted, but the appeal dismissed.

18 DAVIES J : I agree with the reasons of Grove AJ and the orders he proposes other than his conclusion that the sentencing Judge's characterisation of the Applicant as a principal was correct. In that regard I agree with the reasons of Simpson J.

19 GROVE AJ: This is an application for leave to appeal against severity of sentence imposed by Syme DCJ in Campbelltown District Court to which the applicant had been committed after pleading guilty in the Local Court to an offence of cultivating not less than a large commercial quantity of prohibited plants (cannabis) by enhanced indoor means. Such offence has a maximum penalty of imprisonment for 20 years and a prescribed standard non-parole period of 10 years. Her Honour took into account in sentence assessment a scheduled further offence of having a false instrument in possession within intent to use it, this being a NSW driver's licence in a false name. The applicant was sentenced to imprisonment consisting of a total term of 6 years 5 months with a non-parole period of 4 years 9 months.

20 Drawing from an agreed statement of facts, her Honour found that on 29 February 2009 police attended the premises at Blairmont where a screen door was forced and the requisite notice read and interpreted to the applicant over a telephone. Within the house five rooms had been fitted out with a sophisticated hydroponic growth system. Each room had heat lamps and lights. Investigation demonstrated that the mains electricity supply board to the house had been bypassed and some sixty-one electrical transformers were located within the house.

21 Four of the rooms had extensive plumbing so as to carry nutrient rich water to the crops and there were also fans, pumps and carbon filters in the rooms. Altogether 317 cannabis plants were growing. Plants in the fifth room were hand watered. Supplies of plant food, chemicals and fertilizers were found in the premises. A large commercial quantity of plants grown in this manner consists of 200 plants.

22 Whilst police were in occupation a co-offender Tuan Trong Vu was seen walking from the kitchen area. He was detained and in due course he was also charged.

23 The applicant was interviewed by Constable McPherson at Macquarie Fields Police Station where, inter alia, she said that she had been living at the premises for about three or four months. She paid rent of $1000 per month to an agent of the owner. She claimed the money was sourced from her own savings. She had met Vu at a coffee shop and, as he had nowhere to stay, she invited him to move into the premises and share the work to be done there. Together they undertook planting and she said that they, and no one else, looked after the plants. The plants that had been located by police were a re-planting after a first intended crop failed. The re-planting occurred about one month before police arrived on the scene.

24 The applicant claimed that she herself had wired the lights and bypassed the electricity meter as well as attending to boarding up some of the windows and to collateral activity such as purchase of fertilizer. She paid the electricity account. She said that she did not yet know what she would do with the plants when they were fully grown. Police estimated the potential street value of the crop, if successful, at $1.2 million dollars. The applicant is a citizen of the Republic of Vietnam and has no visa or other authority permitting her to remain in Australia.

25 At the sentence hearing she gave evidence that she did not tell police the truth when she was interviewed by them. Her Honour made various findings about the credibility or lack of it in the applicant's evidence and these findings have not been the subject of challenge except indirectly to the extent that her Honour categorised the applicant as a principal in the operation.

26 The applicant testified that she became involved in the operation at the behest one John Ngo, a Vietnamese Australian, who befriended her and promised to marry her. It was he who arranged the false identity, convinced her to enter the lease of the premises, set up the hydroponics and electrical circuits and purchased the plants and fertiliser. She said that she originally believed that he intended to grow medicinal herbs.

27 Police inquiries of the Department of Immigration and Citizenship concerning John Ngo, and a possible alias Anh Lam, showed that that Department had no electronic record of any such person.

28 The learned sentencing Judge found that the applicant's evidence that she originally did not know that she was growing cannabis or that it was illegal was totally unconvincing. However her Honour accepted that the applicant herself did not have the skills to install the hydroponic system or attend to the associated electrical wiring. She was satisfied to the necessary standard that the applicant was involved in the initial set up of the cultivation and she planted the crop and re-planted it when this was required. It was her intention to profit from the venture. The applicant knew from the outset that it was illegal to grow these plants and, with that knowledge, she involved herself in the day to day management of it and in the recruitment of an assistant.

29 Her Honour found that the applicant was one of at least two principals, another being the man said to be John Ngo. Her Honour found that allegations by the applicant of threats of harm or worse by Ngo were examples of recent invention which "she seemed to make up for the purpose of the Court hearing". She accepted that the applicant was used by others who preyed upon her naivety and vulnerability but she was neither forced nor coerced into participation in the illegal activities.

30 Senior Counsel for the applicant contended that there must have been someone, for example John Ngo, who inspired the decision to grow the crop and either installed or organised the installation of the light fittings and the wiring bypass and associated electrics, who therefore must be regarded as more highly ranked than the applicant in the criminal enterprise. It was submitted that it was wrong to categorise the applicant as a principal.

31 It may well be that there was another, or others, who could be ranked higher than the applicant but the structure of participation in such activity is not necessarily pyramidal. Conceptually there can be principal roles and subordinate roles filled in each category by more than one person. Her Honour's finding (and her reference at one point to the applicant as one of at least two principals) was a description of the position of the applicant as a principal rather than a subordinate. It was not a finding that the applicant was the principal. Her finding was amply justified by the evidence of the applicant's activities and no error has been demonstrated.

32 The first ground of appeal asserted that "the Learned sentencing Judge erred by failing to properly apply Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 the standard non-parole period provisions in sentencing the Applicant."

33 As above stated, there is an applicable standard non-parole period prescribed for the offence. That prescription is found in the division of the Statute recited in the ground of appeal. Section 54A(2) provides:

" 54A What is the standard non-parole period?

(2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division."

34 Counsel then drew attention to the contrasting expression applicable when assessing sentence (as distinct from setting a non-parole period) legislated in Part 3 Division 1 of the Statute. Section 21A provides:

" 21A Aggravating, mitigating and other factors in sentencing

(1) General

In determining the appropriate sentence for an offence, the court is to take into account the following matters:

(a) ...

(b) ...

(c) any other objective or subjective factor that affects the relative seriousness of the offence.

35 Thus for different purposes it is necessary to distinguish between the "objective" features of an offence and the "subjective" features of the offender. This does not mean that circumstances personal to the offender cannot objectively affect the seriousness of an offence: R v Way (2004) 60 NSWLR 168 at 186.

36 The challenge by the applicant was largely focused upon the following remarks by her Honour:

"The charge that Ms Nguyen faces is subject to a standard non-parole period of ten years. The question for the court to ask is whether there are proper reasons for not imposing the standard non-parole period. I have considered the objective seriousness of the offence in light of the facts which relate directly to the commission of the offence and why it was committed to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of this particular kind. I have also considered the circumstances of aggravation and mitigation, including the plea of guilty, but not limited to the plea of guilty. I accept that the standard non-parole period is a guide to the sentence to be imposed for a mid range offence where the matter has proceeded to trial.

In this case, taking into account the offender's level of involvement, the number of plants; her expectation of some profit, financial or otherwise; her level of naivety; the reasons, personal to her circumstance, as to why she involved herself in the offence; her remorse and contrition; her early plea and the difficulties she will have in custody due to the lack of a support system in Australia. I find the criminality of this offence to be of slightly less than mid range seriousness but at a level much closer to mid range than low range."

37 It is evident that her Honour therein expressed taking into account some subjective factors, for example remorse and contrition, when considering the objective seriousness of the offence. Such factors would not be available for such purpose. Hence it was argued there were unavailable elements taken into account in scaling into the range dictated by the provisions concerning standard non-parole periods when considering that issue.

38 Be that as it may, such subjective factors as her Honour mentioned patently favoured the applicant and would not have elevated the assessment of seriousness. The essential question is whether her Honour erred in finding, when dealing with standard non-parole period, that the offence was "slightly less than mid range of seriousness but at a level much closer to mid range than low range."

39 As above described, the growing of this illicit crop was obviously planned and involved installation of a complex of irrigation and electrical support mechanisms. Although the applicant was not the initiator nor the installer of the systems, she was unsupervised in advancing the cultivation and in charge of the operation to the extent that, inter alia, she could re-plant a failed crop and recruit assistance from Vu.

40 Although there were errors as above identified in her Honours remarks concerning standard non-parole period, an assessment excluding consideration of purely subjective matters, could not reasonably place the objective seriousness of this offence any lower in range than that which her Honour found.

41 The ground fails because no adverse consequence to the applicant has been shown.

42 The second ground relied upon by the applicant contended that the sentence was manifestly excessive. Allowing for the reduction for the plea of guilty, it can be calculated that a head sentence of approximately eight and a half years was initially contemplated.

43 As above noted, for the purposes of the offence a large commercial quantity is set at 200 plants whereas this crop exceeded 300 plants. Senior Counsel for the applicant in his written submission acknowledged that the offence was serious and that it was "a relatively sophisticated operation". He proceeded to contrast the specification of 200 plants as a large commercial quality with the specification at 1000 plants for what he described as "the ordinary case". Such an "ordinary case" would not involve growing by enhanced indoor means. Thus if the applicant's offence was an "ordinary case" the number of plants would be less than the large commercial quantity and thereby attract a maximum term of imprisonment of 15 years to which is attached no standard non-parole period.

44 The comparison is otiose and the argument is fallacious. It implies that the legislature has left available the comparison now advanced. Clearly it was intended that there be a discrimination in terms of the number of plants grown between a crop cultivated by enhanced indoor means against a crop not so grown. It is of passing interest to note that in the second reading speech of the Minister introducing the relevant level, the Parliament was informed that "cannabis plants cultivated by hydroponic or other enhanced indoor means grow much faster than plants grown by traditional outdoor methods, and produce between 5 and 7 times the yield." He went on to explain that the purpose of the amendment was to address the inequity in commerciality between "bush grown" and hydroponic cannabis operations.

45 There is no need to repeat what has already been observed in relation to the seriousness of the offence and the contribution of this offender. Counsel referred to summaries and outcomes of cases including those collected by Hislop J in Tran v R (2010) NSWCCA 72. In addition to those cases reference was made to R v LP (2010) NSWCCA 154 (which was a Crown appeal wherein the offender had received a substantial discount for assistance) and Wong v R (2010) NSWCCA 160.

46 In the latter case 255 plants were involved in indoor cultivation and the offender received a sentence of 3 years 9 months with a non-parole period of 1 year 9 months. It was claimed that his role was similar to that of the applicant. Any similarity is very limited. Wong came to a house where the crop was already growing. At age 22 he was seeking accommodation and he came to an agreement whereby he watered and fertilized the plants in lieu of paying rent. Significantly Barr AJ (McClellan CJ and CL and Hislop J agreeing) observed that no assistance was received from examination of cited cases. His Honour said:

"[ 14] The appropriate way to consider any submission about manifest excess is to gather the salient facts of the case and assess them by reference to the maximum applicable sentence and the standard non-parole period. The maximum sentence was 20 years imprisonment. That resulted from the fact that there were more than 200 plants, which for plants cultivated by enhanced indoor means, constituted a large commercial quantity. The standard non-parole period was imprisonment for 10 years. "

47 The applicant was one of the principals in a planned and calculated criminal enterprise. The ultimate sentence represented less than half the prescribed maximum head sentence and less than half the standard non-parole period. Such sentence was not manifestly excessive.

48 I would grant leave to appeal against sentence but dismiss the appeal.

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Decision last updated: 09 May 2011