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Court of Criminal Appeal 21 September 2006

Regina v Pham

[2006] NSWCCA 288

Drugs
CRIMINAL PRACTICE & PROCEDURE CROWN APPEAL SUPPLY CANNABIS LEAF GAVE ASSISTANCE GIVEN BAIL ALLOWANCE FOR PLEA AND ASSISTANCE

Citation: Regina v Pham [2006] NSWCCA 288
Court: NSW Court of Criminal Appeal
Date: 21 September 2006
Judge(s): Grove J, Kirby J, Hislop J

Background

The respondent pleaded guilty in the District Court to two drug offences. The first was supplying 21.89 kg of cannabis leaf on 21 September 2004. The second was knowingly taking part in the cultivation of a commercial quantity of cannabis (309 plants in a hydroponic setup) on 26 May 2005, approximately eight months after he had been charged and released on bail for the supply offence.

Following his arrest for the supply offence, the respondent volunteered information to police that was described as significant and accurate intelligence, provided at a time when he sought nothing in return. He was then released on bail. The cultivation offence came to light when police executed a search warrant on a property the respondent owned at Earlwood, where they found a sophisticated four-bedroom hydroponic cannabis operation.

The sentencing judge, Norrish DCJ, imposed a fixed term of 1 year and 8 months for the supply offence and 2 years and 3 months for the cultivation offence, with the sentences partially accumulated. The Crown appealed on the ground that the sentences were manifestly inadequate.

  • Whether the sentence imposed for the cultivation offence was manifestly inadequate, having regard to the seriousness of a commercial-scale cannabis operation.
  • Whether it was appropriate to discount the sentence for the cultivation offence by reference to assistance the respondent had provided to police in connection with the earlier supply offence.
  • How to resentence, applying a conservative approach consistent with Crown appeal principles.

Decision

The Court of Criminal Appeal agreed with the Crown that the sentence for the cultivation offence was manifestly inadequate. The cultivation involved a sophisticated commercial operation with 309 plants, significant infrastructure, and a diverted electricity supply. The sentencing judge's findings were that the respondent owned and directed the enterprise. A non-parole period of only 8 months for an offence of that scale did not adequately reflect its seriousness.

A separate issue arose during argument, not raised by the Crown in its written submissions but relevant to resentencing. Kirby J found it was wrong in principle to discount the sentence for the cultivation offence by reference to assistance provided in connection with the earlier supply offence. The assistance was given on 29 September 2004. There was no suggestion of continuing assistance. The cultivation offence was committed while the respondent was on bail for the supply offence. To treat prior assistance as a mitigating factor for a subsequent offence committed while on bail would, in effect, licence further offending at a discounted penalty.

On resentencing, the Court applied a conservative approach, as required on a Crown appeal. Allowing a 25 percent discount for the early guilty plea, and finding special circumstances to justify a longer-than-standard additional term, the Court imposed a sentence of 4 years with a non-parole period of 2 years for the cultivation offence.

Orders Made

  • Appeal allowed.
  • Sentence for count 1 confirmed: fixed term of 1 year and 8 months, commencing 20 June 2005 and expiring 19 February 2007.
  • Sentence for count 2 quashed and replaced with 4 years imprisonment from 20 June 2006 to 19 June 2010, with a non-parole period of 2 years from 20 June 2006 to 19 June 2008 (earliest parole eligibility: 19 June 2008).

Key Takeaways

  • A discount for assistance to authorities is linked to the offence in relation to which that assistance was provided; it does not automatically carry over as a mitigating factor for a later, unrelated offence committed while on bail.
  • Extending an assistance discount to a subsequent offence committed while on bail was found to be wrong in principle, as it would effectively reward further offending with a reduced sentence.
  • Where a commercial-scale drug cultivation operation is established, the sentencing court must impose a sentence that adequately reflects the objective seriousness of the enterprise, regardless of the offender's subjective circumstances.
  • On a Crown appeal, the Court of Criminal Appeal applies a conservative approach to resentencing, acknowledging the respondent's position but correcting inadequacy where the original sentence falls clearly below an acceptable range.
  • In dismissing the adequacy of the original cultivation sentence, the Court noted the operation's commercial scale, the respondent's role as the directing mind, and the significant infrastructure involved, all of which pointed to a substantially higher sentence than was imposed at first instance.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(2)(a), 25(1), 32(1)(h)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Cartwright (1989) 17 NSWLR 243
- R v Gallagher (1991) 23 NSWLR 220
- R v Chu (unreported, NSWCCA, 16 October 1998)
- R v Sukkar [2006] NSWCCA 92
- R v Wall [2002] NSWCCA 42
- Pearce v The Queen (1998) 194 CLR 610
- R v Richards (1981) 2 NSWLR 464
- R v Jones (unreported, NSWCCA, 30 June 1994)
- R v Moffitt (1990) 20 NSWLR 114
- Power v The Queen (1974) 131 CLR 623
- Bugmy v The Queen (1990) 169 CLR 525