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Court of Criminal Appeal 19 April 2012

Van Dung Nguyen v R

[2012] NSWCCA 42

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE PARITY PRINCIPLE DIFFERENT ROLES OF CO OFFENDERS WHERE SENTENCE OF CO

Citation: Van Dung Nguyen v R [2012] NSWCCA 42
Court: NSW Court of Criminal Appeal
Date: 19 April 2012
Judges: McClellan CJ at CL, Davies J, Garling J

Background

The applicant pleaded guilty to cultivating by enhanced indoor means a commercial quantity of cannabis (157 plants) at a residential property in Ingleburn. Police executing a search warrant found plants growing hydroponically across four rooms, with the electricity meter bypassed to power the lighting equipment. The applicant made full admissions during a police interview and acknowledged extensive knowledge of cultivation techniques.

Two co-offenders were sentenced at the same time. One was the applicant's girlfriend, who had visited the premises regularly and assisted with hydroponic equipment. The other was the applicant's half-brother, a Canadian national visiting on a tourist visa, who had been living at the property. The sentencing judge found that the applicant was the instigator who recruited both co-offenders.

The applicant received a sentence of three years non-parole with an additional term of two years and three months (after a 25% discount for an early guilty plea). Each co-offender received 15 months non-parole with an additional 15 months. The applicant sought leave to appeal, arguing the disparity gave rise to a justifiable sense of grievance and that his sentence was manifestly excessive.

  • Whether the disparity between the applicant's sentence and those of the co-offenders gave rise to a justifiable sense of grievance under the parity principle
  • Whether the sentence of three years non-parole was manifestly excessive for commercial cannabis cultivation by enhanced indoor means

Decision

On parity, Davies J noted that considerable obstacles face an applicant who invokes the parity principle where the sentencing judge was fully aware of the co-offenders' sentences and expressly explained the reasons for departing from them. The sentencing judge had found that the applicant instigated the offence, set up the equipment, recruited the others, and attended to the plants throughout. The co-offenders' roles were secondary and their personal circumstances attracted some leniency.

The Court observed that the co-offenders' sentences were, on a review of comparable authority, themselves particularly lenient. Cases involving offenders in secondary roles had generally produced higher sentences than those received by the co-offenders here. The fact that the co-offenders were dealt with leniently did not mean the applicant's sentence was excessive; the parity principle does not operate to bring a properly imposed sentence down to match an inadequate one.

On manifest excess, Davies J reviewed several Court of Criminal Appeal decisions concerning commercial cannabis cultivation under the current penalty regime and found the applicant's sentence fell within the established range. The applicant bore the onus of showing the sentence was not merely severe but manifestly excessive, and that onus was not discharged. Both grounds of appeal failed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The parity principle does not entitle an applicant to a reduction in sentence simply because co-offenders received sentences that were themselves inadequately lenient; disparity caused by leniency to others does not establish a justifiable sense of grievance.
  • A sentencing judge who expressly identifies the differences in offenders' roles and explains the departure from co-offender sentences creates significant obstacles for a parity-based appeal.
  • Upholding the sentence, the Court of Criminal Appeal confirmed that an applicant bears the onus of demonstrating manifest excess, not merely that the sentence was severe.
  • Where few prosecutions under a particular penalty regime have reached the appellate courts, considerable caution is warranted before concluding that a sentence falls outside the appropriate range.
  • Role differentiation within a joint criminal enterprise remains a central factor in sentencing: the instigator who recruited others and maintained operational control occupied a materially different position from those who provided secondary assistance.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a)

Cases:
- Green v The Queen [2011] HCA 49; (2011) 86 ALJR 36
- Nguyen v R [2008] NSWCCA 322
- Thi Lan Nguyen v R [2009] NSWCCA 181
- Truong v R [2009] NSWCCA 41
- Van Cuong Pham v R [2009] NSWCCA 266
- Rae v R [2011] NSWCCA 211
- Rees v R [2012] NSWCCA 47