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7
Court of Criminal Appeal 30 October 2009

Van Cuong PHAM v R

[2009] NSWCCA 266

Drugs
CRIMINAL LAW WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Van Cuong PHAM v R [2009] NSWCCA 266
Court: NSW Court of Criminal Appeal
Date: 30 October 2009
Judge(s): Young JA, Hidden J, Latham J

Background

The appellant pleaded guilty in the District Court to cultivating a commercial quantity of a prohibited plant by enhanced indoor means, contrary to the Drug Misuse and Trafficking Act 1985. The offence related to 112 cannabis plants grown hydroponically in a purpose-built garage at his Riverwood home, with a total estimated street value exceeding half a million dollars. A concurrent sentence was also imposed for an offence of organising or conducting drug premises.

The appellant's role was assessed by the sentencing judge as relatively low-level. He was recruited by unidentified others, and his function was essentially to water and fertilise the plants and manage the lighting. He did not construct the premises, source the plants, or bypass the electricity meter.

Freeman DCJ sentenced the appellant to a non-parole period of 18 months with a balance of term of 18 months, reflecting a 25% discount for his early guilty plea. The appellant sought leave to appeal on the single ground that the sentence was manifestly excessive.

  • Whether the total sentence of 3 years imprisonment (18 months non-parole period, 18 months balance of term) for cultivating a commercial quantity of cannabis by enhanced indoor means was manifestly excessive.
  • Whether the sentencing judge gave adequate weight to the appellant's low-level role, subjective circumstances, prior good character, and the reduced emphasis on general deterrence arising from his clinical depression.

Decision

Latham J (with whom Young JA and Hidden J agreed) reviewed the small body of case law dealing with offences committed under the post-July 2006 penalty regime for cultivation by enhanced indoor means. Under that regime, the legislature reduced the commercial quantity threshold from 250 plants to 50 plants for hydroponically grown cannabis, specifically to reflect the increased potency and yield of such crops.

Three directly comparable decisions were examined: Van Cuong Nguyen v R [2008] NSWCCA 322, Truong v R [2009] NSWCCA 41, and Thi Lan Nguyen v R [2009] NSWCCA 181. Those cases produced sentences at first instance or on appeal ranging from 3 to 4 years for broadly similar offending, with variations depending on individual circumstances such as ownership of premises, isolation as a non-English speaker, and the presence or absence of Form One offences.

Latham J noted that the appellant's case was distinguishable from Thi Lan Nguyen in at least one material respect: the Form One offence of illegally bypassing the electricity meter was taken into account in the present case, whereas no such aggravating factor existed in that matter. The Court expressed caution about concluding that a sentence falls outside the appropriate range when so few prosecutions under the new regime had come before it.

The Court was not persuaded that the sentence was manifestly excessive. The appellant bore the onus of establishing not merely that the sentence was severe, but that it crossed the threshold of manifest excess. That onus was not discharged.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence of 3 years imprisonment (18 months non-parole period) for enhanced indoor cultivation of 112 cannabis plants by a low-level offender with no prior record was within the acceptable sentencing range.
  • The legislature's reduction of the commercial quantity threshold for hydroponic cannabis cultivation from 250 to 50 plants was intended to signal a meaningful increase in the gravity of such offending, and sentences should reflect that legislative intention.
  • Where very few comparable cases have reached an appellate court, particular caution is warranted before concluding that a sentence falls outside the appropriate range.
  • Clinical depression at the time of offending may reduce the emphasis placed on general deterrence in sentencing, but does not necessarily bring an otherwise appropriate sentence below the permissible range.
  • The presence of a Form One offence (here, illegal bypass of the electricity meter) is a relevant distinguishing factor when comparing sentences across cases, and its absence in a comparable decision does not make the two cases directly equivalent.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(2)(a), 36Z(1)(a)
- Electricity Supply Act 1995 (NSW), s 70

Cases:
- R v Godden [2005] NSWCCA 160
- R v Quan [2006] NSWCCA 382
- Huu Chien Nguyen v R [2007] NSWCCA 94
- 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