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Court of Criminal Appeal 10 June 2011

Thanh NGUYEN v R

[2011] NSWCCA 127

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE PAROLE PERIOD APPLICABLE TO THE OFFENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE USE OF STATISTICS.

Citation: Nguyen v R [2011] NSWCCA 127
Court: NSW Court of Criminal Appeal
Date: 10 June 2011
Judges: McClellan CJ at CL, Hoeben J, Grove AJ

Background

The appellant pleaded guilty in the District Court at Parramatta to cultivating not less than a commercial quantity of prohibited plants (168 cannabis plants) by enhanced indoor means, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum sentence of 15 years imprisonment, and no standard non-parole period applied. A related offence of dealing with electricity without authority (involving an estimated $19,000 of unpaid electricity) was taken into account on a Form 1.

Police executing a search warrant at a Fairfield property found a sophisticated hydroponic setup across two rooms of a rear shed, with 168 plants at various stages of maturity, automatic watering systems, ventilation, and extraction fans. The appellant was present at the premises, held the keys, was the tenant under a lease, and had his fingerprints on a seedling tray and a thermometer found near the seedlings. The estimated street value of the cannabis exceeded $500,000.

The sentencing judge imposed a non-parole period of 2 years and 6 months, with a balance of term of 1 year and 6 months, after applying a 25 percent discount for the early guilty plea. The appellant sought leave to appeal on three grounds: that the judge erred in findings about his role, that the judge incorrectly assessed objective seriousness and gave undue weight to quantity, and that the sentence was manifestly excessive.

  • Whether the sentencing judge's findings about the appellant's role in the cultivation were open on the evidence
  • Whether the sentencing judge erred in assessing objective seriousness as "mid-range" where no standard non-parole period applied to the offence
  • Whether the sentence was manifestly excessive, including whether sentencing statistics should have carried greater weight

Decision

On the question of role, the Court of Criminal Appeal found no error in the sentencing judge's conclusions. The judge was entitled to draw on the totality of the circumstantial evidence, including the appellant's tenancy of the property, possession of the keys, fingerprints on the seedling tray and thermometer, and presence at the premises. In the absence of any other explanation, the inference that the appellant was a major participant rather than merely a labourer was open beyond reasonable doubt.

On the assessment of objective seriousness, the Court confirmed that a sentencing judge is not precluded from characterising an offence as "mid-range" simply because the offence carries no standard non-parole period. The concept of objective seriousness remains a valid and necessary part of the sentencing exercise regardless of whether a standard non-parole period exists. The Court noted, however, that a judge who assesses seriousness in such a context should be cautious not to inflate the significance of that characterisation beyond the established approach in Markarian v The Queen.

On manifest excess, the Court declined to give determinative weight to the sentencing statistics tendered by the appellant. The Court reaffirmed that statistics are of limited utility given the vast range of factors relevant to sentencing for drug cultivation offences, and that the critical question is whether the sentence was appropriate for the particular case. The findings as to the appellant's significant role in the offence, the seriousness of the cultivation, the absence of a compelling subjective case, and the need to give some effect to the Form 1 electricity offence all supported the sentence imposed. The sentence was within the permissible range.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge is not precluded from assessing objective seriousness simply because no standard non-parole period applies to the offence charged; the characterisation remains a legitimate part of the sentencing exercise.
  • Sentencing statistics are of limited utility in assessing manifest excess for drug cultivation offences, given the large number of variables that statistical figures do not capture.
  • The determinative question on a manifest excess ground is whether the sentence was appropriate for the particular case, not whether it sits at the high end of a statistical range.
  • Sufficient circumstantial evidence supported the finding that the appellant was a major participant in the cultivation operation, including his tenancy of the premises, possession of keys, and fingerprint evidence.
  • In dismissing the appeal, the Court confirmed that the absence of a compelling subjective case, combined with a significant role in a large-scale cultivation and a Form 1 offence, properly weighed in favour of the sentence imposed.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(2)(a), 36X(1)(a)
- Electricity Supply Act 1995 (NSW), s 64(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 166, 37

Cases:
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Attorney General's Application under s 37 of Crimes (Sentencing Procedure) Act 1999 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Fogg v R [2011] NSWCCA 1
- Furia v R [2010] NSWCCA 326
- Holloway v R [2011] NSWCCA 23
- Ayoub, Omran v R; El Masri, Ali v R [2010] NSWCCA 196
- Georgopolous v R [2010] NSWCCA 246
- Sivell v R [2009] NSWCCA 286
- R v F (2002) 132 A Crim R 308