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9
Court of Criminal Appeal 11 February 2010

PHAN v R

[2010] NSWCCA 8

Drugs
CRIMINAL LAW AND PROCEDURE SENTENCE LIMITED ROLE OF OFFENDER PLEA OF GUILTY STANDARD NON PAROLE PERIOD PRESCRIBED

Citation: PHAN v R [2010] NSWCCA 8
Court: NSW Court of Criminal Appeal
Date: 11 February 2010
Judges: Grove J, Simpson J, RA Hulme J

Background

The applicant pleaded guilty in Burwood Local Court to knowingly taking part in the cultivation of a large commercial quantity of prohibited plants grown by enhanced indoor means. Police executing a search warrant at fortified premises in Condell Park discovered a sophisticated hydroponic cannabis operation with an estimated street value of approximately $500,000. The applicant's fingerprints were found in two rooms and DNA matching his profile was recovered from a toothbrush at the scene.

At sentencing, the District Court accepted the applicant's evidence that he had been engaged for approximately three days to perform handyman work at the direction of a person known as "Nguyen," and that he was not the mastermind of the operation. The court found, however, that the applicant had quickly realised the premises were a cannabis cultivation site and had participated in bypassing the electricity supply monitor, a step designed to conceal the high power consumption typical of hydroponic growing. The applicant also had prior drug-related convictions, including a sentence for heroin supply, and the present offence occurred roughly six months after he completed that earlier sentence.

Woods DCJ sentenced the applicant to a total term of five years imprisonment, comprising a non-parole period of three years and a balance term of two years. The maximum penalty for the offence is 20 years imprisonment, with a standard non-parole period of 10 years. The applicant sought leave to appeal on the ground that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to adequately assess where the offence fell within the range of objective seriousness, particularly given the prescribed standard non-parole period.
  • Whether the sentencing judge gave sufficient weight to the applicant's mental health problems when imposing sentence.
  • Whether the resulting non-parole period and head sentence were manifestly excessive in all the circumstances.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error in the sentencing judge's exercise of discretion.

On the question of objective seriousness, the Court held that while the sentencing judge did not use the precise language of assessing where the offence fell within the range, the outcome demonstrated an implicit assessment. Setting a non-parole period of three years against a standard non-parole period of ten years placed the applicant's conduct well below the middle of the range. The Court found this was consistent with the limited role accepted by the sentencing judge, while also reflecting that the applicant's contribution, particularly bypassing the electricity monitor, was not insignificant. Circumventing electricity monitoring is a calculated step to avoid detection of hydroponic cultivation, and the applicant was found to have understood precisely why he was being asked to do it.

On the mental health issue, the sentencing judge had expressly addressed the applicant's reduced mental capacity, anxiety, and prior psychological and psychiatric treatment in the remarks on sentence. The Court found no error in the weight given to those matters.

Simpson J, in a brief concurring judgment, placed particular emphasis on the applicant's prior drug convictions as a weighty factor supporting the sentence imposed, noting this had also been the approach of the sentencing judge.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge is not required to use express language about "range of objective seriousness" provided all relevant considerations are weighed and the outcome reflects a proper use of the standard non-parole period as a guidepost.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a non-parole period set at less than one-third of the prescribed standard is a clear and sufficient indicator that the offence was assessed as well below mid-range seriousness.
  • The standard non-parole period for this class of offence (large commercial quantity of prohibited plants grown by enhanced indoor means) remains a mandatory reference point for sentencing, even where the offender's conduct falls below mid-range.
  • A limited or subordinate role in a drug cultivation enterprise does not automatically render a sentence manifestly excessive where the specific acts performed, such as bypassing electricity monitoring, were materially important to concealing the operation.
  • Prior drug convictions, particularly where a fresh offence occurs shortly after the completion of an earlier drug-related sentence, constitute a significant factor in the sentencing assessment.

Legislation and Cases Referenced

Legislation
- Electricity Supply Act 1995 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s 36X

Cases
- Markarian v The Queen (2005) 228 CLR 357
- R v Way (2004) 60 NSWLR 168
- SKA v R [2009] NSWCCA 186
- TC v Regina [2009] NSWCCA 296