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Court of Criminal Appeal 28 June 2011

CO, Ngoc Van v R

[2011] NSWCCA 148

Drugs

Citation: CO, Ngoc Van v R [2011] NSWCCA 148
Court: Court of Criminal Appeal, NSW
Date: 28 June 2011
Judges: Giles JA, RS Hulme J, Adams J

Background

The appellant was convicted of cultivating not less than a large commercial quantity of cannabis plants by enhanced indoor means, contrary to the Drug Misuse and Trafficking Act 1985. He had leased a heavily fortified residential property and, over three months, cultivated 266 cannabis plants using a sophisticated hydroponic set-up across five rooms. He admitted in police interview that he intended to sell the harvested cannabis leaf.

The sentencing judge in the District Court imposed a total term of 7 years and 6 months imprisonment, with a non-parole period of 4 years, commencing 16 October 2009. The judge assessed the offence as falling in the middle range of objective seriousness but at the lower end of that range, applied a 25% discount for the guilty plea, and found special circumstances to justify a longer than usual parole period.

The appellant sought leave to appeal, contending the sentence was manifestly excessive and that the sentencing judge made several specific errors in his reasoning.

  • Whether the sentencing judge erred by giving excessive weight to the number of plants when assessing objective seriousness
  • Whether general deterrence and punishment were correctly identified as particularly important considerations
  • Whether the judge made insufficient allowance for the appellant's favourable subjective circumstances, including age, character, personal hardship, and family responsibilities
  • Whether the judge's assessment that the appellant's remorse was limited was erroneous
  • Whether the overall sentence was manifestly excessive

Decision

The Court of Criminal Appeal rejected all grounds of appeal. On the question of objective seriousness, the Court accepted that the 266 plants only exceeded the large commercial threshold of 200 by around 33%, but held that this remained a significant margin. The Court also found that the sentencing judge had not placed primary importance on the number of plants. Rather, the number was one of two matters expressly referenced, and other relevant considerations were either addressed or plainly obvious in context.

On general deterrence, the Court upheld the sentencing judge's finding that general deterrence and punishment were particularly important. The Court reasoned that the offence involved deliberate criminality for financial reward, and the frequency with which such offences come before the courts indicated that many offenders regard the benefits as outweighing the risks.

The Court found no error in the treatment of subjective circumstances. The sentencing judge had expressly acknowledged the appellant's lack of prior criminal history, his role as a sole carer for his daughters, his background as a Vietnamese refugee, his lack of drug use, and his good character. On remorse, the Court accepted that the judge's finding of limited remorse was open given that the appellant had attempted to minimise his role to a psychologist, contrary to his own admissions to police.

Comparing the sentence to those imposed in similar cases decided by the Court of Criminal Appeal, including cases involving comparable plant numbers, the Court concluded the sentence was not manifestly excessive. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under the Drug Misuse and Trafficking Act 1985, where an offender is assessed as fully involved in the cultivation process with an intention to sell, the sentencing court is entitled to identify general deterrence and punishment as particularly important considerations.
  • The High Court's guidance in Wong v R (2001) and Markarian v R (2005) against over-reliance on drug quantity applies to the determination of the appropriate overall sentence; however, the Court of Criminal Appeal confirmed that those principles also carry weight in the narrower assessment of objective seriousness, even if that assessment involves a more limited range of factors.
  • A sentencing judge's finding of limited remorse is open where an offender's account to a psychologist contradicts admissions made to police, even when the offender otherwise presents with favourable subjective circumstances.
  • Comparative sentencing analysis across multiple Court of Criminal Appeal decisions involving 255 to 305 cannabis plants by enhanced indoor means provided the framework for upholding a sentence of 7 years and 6 months with a 4-year non-parole period.
  • An unexplained or poorly reasoned finding of special circumstances does not necessarily vitiate a sentence where the overall result falls within an appropriate range.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(2)(a) and 33(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- Wong v R [2001] HCA 64; (2001) 207 CLR 584
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- R v Hung Phuc LY (unreported, 7 October 2010)
- Wong v R [2010] NSWCCA 160
- Phan v R [2010] NSWCCA 8
- Tran v R [2010] NSWCCA 72
- R v LP [2010] NSWCCA 154
- Pham v R [2011] NSWCCA 3