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Court of Criminal Appeal 4 December 2006

REGINA v NGUYEN REGINA v CANNISTRA

[2006] NSWCCA 389

Drugs
CRIMINAL LAW CROWN APPEAL CULTIVATE PROHIBITED DRUG LARGE COMMERCIAL QUANTITY CANNABIS MANIFESTLY INADEQUATE

Citation: Regina v Nguyen; Regina v Cannistra [2006] NSWCCA 389
Court: Court of Criminal Appeal, New South Wales
Date: 4 December 2006
Judge(s): McClellan CJ at CL; Hidden J; Hislop J

Background

Both respondents pleaded guilty to knowingly taking part in the cultivation of more than 30,000 cannabis plants at a rural property near Dubbo, a quantity exceeding the large commercial quantity threshold under the Drug Misuse and Trafficking Act 1985 (NSW). The plants were estimated to be worth approximately $58 million. Each respondent also asked the court to take into account a further cultivation offence on a Form 1, relating to an earlier crop grown at the same location between August 2002 and May 2003.

The respondent Cannistra was identified as directing workers at the cultivation site and played a central organising role in the enterprise. The respondent Nguyen (known as "Ha") played a significant supporting role, including involvement in the distribution network and in recruiting workers, though her role was assessed as lower in the overall hierarchy than Cannistra's.

The District Court sentenced Cannistra to a non-parole period of four years and nine months and Ha to a non-parole period of five years and two months. The Crown appealed both sentences as manifestly inadequate.

  • Whether the sentences imposed by the District Court on both respondents were manifestly inadequate given the objective seriousness of the offending
  • What weight should be given to the roles played by each respondent in the cultivation enterprise when assessing the appropriate starting point
  • How the discounts for assistance to authorities and late guilty pleas should be applied
  • Whether the sentences imposed on co-offenders provided a relevant benchmark for assessing the respondents' sentences
  • Whether the Crown appeal against Ha's sentence should succeed, having regard to the principle that a Crown appeal warrants restraint in increasing a sentence

Decision

McClellan CJ at CL (with whom Hidden J and Hislop J agreed) found that the District Court's sentence of Cannistra was manifestly inadequate. The sentencing judge had correctly identified a starting point of fourteen years and six months before applying discounts, but the Court of Criminal Appeal concluded that the objective seriousness of the offending warranted a starting point of at least twenty years. Because this was a Crown appeal, requiring the court to exercise restraint, the appropriate starting point for resentencing was set at eighteen years.

After preserving the 50% discount (40% for cooperation with authorities and 10% for the utilitarian value of the late plea) and the special circumstances finding made below, the Court imposed a revised sentence on Cannistra of nine years, with a non-parole period of five years and ten months. The Court found that Cannistra was the "mind of the enterprise," exercising control over workers, coordinating supply and distribution, and standing to gain substantially from the venture.

In relation to Ha, the Court acknowledged that the District Court's starting point of eleven years and nine months was lower than the Court would itself have imposed, with an appropriate figure being fourteen years. However, given that this was a Crown appeal and that the sentencing principle of double jeopardy (under which an appellate court exercises caution before increasing a sentence on Crown appeal) applied, the resulting increase would not have been sufficiently large to justify intervention. The Crown appeal against Ha's sentence was dismissed.

The Crown's initial argument that the inadequacy of the sentences could be demonstrated by reference to co-offenders' sentences was not ultimately pressed, and the Court found it unnecessary to address that comparison.

Orders Made

  • Crown appeal in respect of Cannistra upheld; sentence quashed and replaced with a non-parole period of five years and ten months commencing 29 January 2004 and expiring 28 November 2009, with a balance of term of three years and two months expiring 28 January 2013
  • Crown appeal in respect of Ha (Nguyen) dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that for large commercial cannabis cultivation involving more than 30,000 plants, an operation with an estimated street value of approximately $58 million, and a respondent acting as the directing mind of the enterprise, a starting point approaching the maximum of 20 years imprisonment was appropriate before discounts.
  • A combined 50% discount for substantial cooperation with authorities and a late guilty plea was preserved on appeal, demonstrating that significant discounts remain available even in serious large-commercial-quantity drug cases where the discounts are adequately supported by the sentencing judge's findings.
  • In Crown appeals, the principle of restraint operates to limit the extent to which the appellate court will increase a sentence: where the gap between the imposed sentence and the appropriate sentence is not large enough to justify intervention after accounting for that restraint, the appeal will be dismissed even if the original sentence was somewhat below what the appellate court would have imposed.
  • The comparative sentences of co-offenders may be raised in Crown appeals to identify manifest inadequacy, but the Court noted such comparisons were not ultimately necessary where inadequacy could be established on the facts of the individual offender's case.
  • Assistance to authorities that does not qualify for a statutory discount under s 23 of the Crimes (Sentencing Procedure) Act 1999 may still attract a reduction at common law, as occurred with Ha's 15% common law discount.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(2)(a), 33(3)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23

Cases:
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 137 A Crim R 180
- R v Baker [2000] NSWCCA 85
- R v Barbara (unreported, NSWCCA, 24 February 1997)
- R v Le (Lieu Thi) [1999] NSWCCA 146
- R v MacDonnell (2002) NSWCCA 34
- R v MD, BM, NA, JT [2005] NSWCCA 342