Citation: Thiu Dieu Vu v Regina [2018] NSWCCA 122
Court: NSW Court of Criminal Appeal
Date: 22 June 2018
Judge(s): Payne JA; Johnson J; Adamson J
Background
Following a police investigation beginning in August 2014, the appellant was identified as a participant in a cannabis cultivation and distribution syndicate operating across four residential premises in Sydney (Eastwood, North Parramatta, Chipping Norton, and Carlingford). Police used physical and electronic surveillance to build the case. The appellant pleaded guilty to three counts under the Drug Misuse and Trafficking Act 1985 (NSW): two counts of cultivating not less than a commercial quantity of cannabis plants and one count of supplying a prohibited drug. A number of further offences were taken into account on Form 1 documents under s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The sentencing judge in the District Court found the appellant held a coordinating role in the syndicate: she negotiated sale prices with wholesale buyers, instructed co-offenders on cultivation, directed distribution and sale, was the tenant of one of the cultivation premises, and was personally involved in transporting cannabis. She was sentenced alongside three co-offenders to an aggregate sentence of eight years' imprisonment, with a non-parole period of four years commencing 18 November 2015.
The appellant sought leave to appeal on three grounds, challenging the indicative sentences, raising a parity argument against a co-offender's sentence, and contending the aggregate sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge erred in his approach to fixing indicative sentences, specifically by arriving at identical indicative terms for counts 1 and 3, leading to an aggregate sentence that was said to be excessive.
- Whether the appellant suffered a justifiable sense of grievance from the disparity between her sentence and that imposed on one of her co-offenders (Mr Vu).
- Whether the aggregate sentence of eight years' imprisonment was manifestly excessive.
Decision
Indicative sentences (Ground 1): The Court rejected the argument that identical indicative sentences on counts 1 and 3 demonstrated an error of principle. Applying JM v R [2014] NSWCCA 297, Payne JA held that where a sentencing judge conducts the required instinctive synthesis for two counts and arrives at the same result, there is no obligation to artificially distinguish the figures by adding or subtracting weeks or months merely to create a visible difference. The aggregate sentence of eight years and non-parole period of four years disclosed no error.
Parity (Ground 2): The Court found no justifiable sense of grievance. The differences between the appellant's sentence and that of the relevant co-offender were reasonably explained by the differences in their respective roles within the syndicate and the nature of their individual offending conduct. Applying Green v The Queen (2011) 244 CLR 463 and Wan v R [2017] NSWCCA 261, the Court held that the disparity was justified and no sentencing error had been established.
Manifest excess (Ground 3): The Court affirmed that consistency in principle, not numerical equivalence, is what sentencing requires. Applying Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58 and Hughes v R [2018] NSWCCA 2, the Court found this was not a case where it could be concluded that there must have been some misapplication of principle, nor was the sentence so far outside the available range as to indicate error. The aggregate sentence fell comfortably within the range for criminality of this type.
Johnson J added that he would not characterise the total term as "stern" given the appellant's significant role in the syndicate. Adamson J agreed with Payne JA's reasons but also declined to express a view on the relative length of the additional term.
Orders Made
- Leave to appeal against sentence granted.
- Appeal dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge conducting an instinctive synthesis across multiple counts is not required to impose artificially differentiated indicative sentences simply to demonstrate that each count has been treated distinctly, provided the aggregate sentence is correct.
- A parity claim requires the appellant to establish a justifiable sense of grievance; where differences in sentence are reasonably explained by differences in role and offending conduct within a criminal syndicate, no such grievance arises.
- Consistency in sentencing principle, rather than numerical equivalence between co-offenders, is the governing standard when assessing manifest excess.
- Under the aggregate sentencing regime, the indicative sentences are aids to transparency, not standalone products required to differ from one another as a matter of principle.
- Offending involving the conversion of multiple residential dwellings to commercial cannabis cultivation, combined with significant coordination and leadership responsibilities within a syndicate, will attract substantial custodial sentences reflecting the community harm involved.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23, 25
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 32
- Crimes Act 1900 (NSW), ss 93T(4A), 193B(2)
- Electricity Supply Act 1995 (NSW), s 64(1)
Cases:
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Green v The Queen (2011) 244 CLR 463; [2011] HCA 49
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- JM v R [2014] NSWCCA 297
- Wan v R [2017] NSWCCA 261
- Hughes v R [2018] NSWCCA 2
- Gill v R [2010] NSWCCA 236
- Thangavelautham v R [2016] NSWCCA 141
- Crowley v R [2017] NSWCCA 99
- Portolesi v R [2012] NSWCCA 157
- Andreata v R [2015] NSWCCA 239
- Tan v R [2013] NSWCCA 164
- Nguyen v R [2012] NSWCCA 42
- Wei v R [2015] NSWCCA 66
- Petrovski v R [2017] NSWCCA 309
- Kremissis v R [2016] NSWCCA 257
- Miles v R [2017] NSWCCA 266