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Court of Criminal Appeal 24 February 2020

Nguyen, Hung Manh v R

[2020] NSWCCA 20

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE PARITY PARITY IN RESPECT OF CO OFFENDERS OFFENDERS

Citation: Nguyen, Hung Manh v R [2020] NSWCCA 20
Court: NSW Court of Criminal Appeal
Date: 24 February 2020
Judges: Macfarlan JA, Johnson J, Lonergan J

Background

The applicant pleaded guilty to cultivating a commercial quantity of cannabis plants contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). A related charge of deemed supply of a commercial quantity of cannabis was taken into account on a Form 1 (a procedure allowing additional offences to be considered when passing sentence on the primary charge). After a 25% discount for his early guilty plea, the applicant was sentenced to 3 years and 10 months imprisonment with a non-parole period of 2 years and 10 and a half months.

The offending centred on a residential property in Kingswood that had been converted into a sophisticated hydroponic cannabis operation. Police surveillance identified the applicant attending the premises on at least nine occasions, performing active cultivation tasks including tying, pruning, and tending 157 cannabis plants.

Four co-offenders were also prosecuted in connection with the same premises. Three young women each received 12-month good behaviour bonds, and a fourth co-offender received a one-year custodial sentence and was released within days of its imposition. Each co-offender was convicted of a differently framed charge, limited to involvement with no more than 23 plants on a single day. The applicant sought leave to appeal on the sole ground that his sentence was disproportionate to those imposed on the co-offenders.

  • Whether the disparity between the applicant's sentence and those of his four co-offenders gave rise to a justifiable sense of grievance, such that the parity principle required appellate intervention
  • Whether it was relevant that the applicant and the co-offenders were sentenced for different, though related, offences under the same Act
  • Whether differences in objective seriousness and subjective circumstances sufficiently explained the sentencing disparity

Decision

The Court of Criminal Appeal unanimously dismissed the appeal, with Lonergan J delivering the principal judgment. The parity principle holds that co-offenders should not receive markedly disparate sentences where no adequate explanation exists, because such disparity may produce a justifiable sense of grievance. However, the sense of grievance must be assessed objectively, not by reference to the subjective feelings of the person complaining.

The Court found that the differences in sentence were clearly and entirely explicable. The applicant's involvement was extensive and repeated: police observed him at the premises on at least nine occasions over several months, carrying out substantive cultivation work on 157 plants. By contrast, each co-offender's involvement was limited to a single day and no more than 23 plants. The applicant also had an additional serious charge taken into account by way of Form 1, which further distinguished his position.

The Court rejected the applicant's contention that differences in subjective circumstances were insufficient to justify the disparity. The sentencing judge had emphasised the applicant's age, intelligence, and education as aggravating factors relative to the younger female co-offenders, whom the judge characterised as less culpable due to their immaturity and circumstances. The fact that all offenders shared a Vietnamese background and some degree of financial hardship did not, in the Court's view, outweigh the more significant points of distinction.

The Court confirmed that it was not determinative that the applicant faced different charges to his co-offenders. Consistent with the High Court's approach in Green v The Queen, substance rather than form governs the parity inquiry. Even so, the objective differences in criminality were so marked that no justifiable sense of grievance could be established.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The parity principle does not operate to reduce a sentence where the disparity between co-offenders is clearly explained by differences in the nature, extent, and duration of each person's involvement in the offending conduct.
  • A justifiable sense of grievance, for parity purposes, is assessed by objective criteria rather than by the applicant's subjective feelings about the sentence received.
  • Where co-offenders are sentenced for differently framed charges, the parity inquiry still applies, but focuses on the substance of the criminality rather than the technical form of the charge, following Green v The Queen; Quinn v The Queen (2011) 244 CLR 462.
  • The Court of Criminal Appeal confirmed that an additional offence taken into account on a Form 1 is a legitimate basis for distinguishing an applicant's position from that of co-offenders who faced no such additional matters.
  • In dismissing the appeal, the Court reinforced that organised residential cannabis cultivation, characterised as criminal activity "hidden in plain sight" in urban communities, attracts serious sentencing outcomes, particularly for those with a central and repeated role.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 23(1A), 23(2)(a), 25(2)

Cases
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Hiron v R [2018] NSWCCA 10
- Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60
- Kelly v R [2017] NSWCCA 256
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Tran v R [2018] NSWCCA 220