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Court of Criminal Appeal 23 October 2020

Pham v R

[2020] NSWCCA 269

DrugsPublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE

Citation: Pham v R [2020] NSWCCA 269
Court: Court of Criminal Appeal, NSW
Date: 23 October 2020
Judges: Meagher JA, Fullerton J, Button J

Background

The appellant pleaded guilty in the Local Court to two offences: knowingly participating in the cultivation of a large commercial quantity of cannabis plants (2,640 plants across 13 residential premises), and knowingly directing the activities of a criminal group involved in that enterprise. He was sentenced in the District Court to an aggregate term of 7 years' imprisonment with a non-parole period of 3 years and 10 months, commencing from the date of his arrest in July 2018.

The appellant's role in the cultivation offence centred on obtaining leases for 13 residential properties across southern and western Sydney, using at least three false names and forged identity documents bearing his photograph. He did not pay rent, was not involved in the actual growing process, and was unaware of the precise number of plants being cultivated. His role in the criminal group extended to directing his partner and a third person to enter into leases using false identities, with funds provided to him by a more senior figure in the enterprise.

The appellant's personal circumstances included no prior criminal history, genuine remorse, a gambling disorder that had driven him into significant debt to a senior co-offender, and diagnosed mental health conditions including Major Depressive Disorder and Generalised Anxiety Disorder at the time of the offending. A forensic psychologist assessed his risk of reoffending as low to medium.

  • Whether the sentencing judge erred in finding the cultivation offence was aggravated under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW) as being "part of a planned or organised criminal activity," given the appellant's limited and specific role in the enterprise
  • Whether, even if that finding of aggravation was in error, a lesser aggregate sentence was nonetheless warranted

Decision

The single ground of appeal argued that the sentencing judge could not properly find the s 21A(2)(n) aggravating factor established beyond reasonable doubt, because the appellant's participation in the cultivation offence was limited to obtaining leases and did not extend to planning or organising the broader cultivation enterprise. The appellant contended that his limited role, taken alone, did not satisfy the statutory requirement.

Fullerton J rejected this argument. Her Honour found that the appellant's conduct, specifically presenting himself with false identity documents on 13 separate occasions to secure residential leases for the purpose of large-scale cannabis cultivation, was itself demonstrative of planning and organisation. The sheer scale of the enterprise (multiple premises, thousands of plants, enhanced growing methods) entitled the sentencing judge to find the offence more serious than the ordinary category of cultivation offending, and it was then open to find the aggravating factor established beyond reasonable doubt, even where the appellant's personal contribution to the broader planning was limited.

Fullerton J also addressed the divergence between two earlier decisions of the Court, Legge v R and DPP (NSW) v Cornwall, concerning the proper construction of s 21A(2)(n), but declined to resolve that tension. Her Honour held that, on the facts, it was unnecessary to do so: even adopting the more restrictive approach in Legge, the direct role the appellant played in the cultivation itself involved planning and organisation sufficient to engage the provision. Her Honour added that, even if the aggravation finding had been wrong, she would not have indicated a different sentence on resentence, and so the appeal would have been dismissed in any event.

Meagher JA agreed with Fullerton J's proposed orders and likewise found it unnecessary to resolve the conflict between Legge and Cornwall. Button J agreed with Fullerton J and specifically endorsed the finding that the appellant's direct role involved planning and organisation.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge may find the s 21A(2)(n) aggravating factor ("part of a planned or organised criminal activity") established beyond reasonable doubt even where the individual offender's role was limited, provided the conduct itself reflects planning and organisation, such as the systematic use of forged documents to secure multiple premises for a large-scale cultivation operation.
  • The Court of Criminal Appeal left unresolved the apparent tension between Legge v R [2007] NSWCCA 244 and DPP (NSW) v Cornwall [2007] NSWCCA 359 on the proper construction of s 21A(2)(n), finding the facts here did not require a choice between the two approaches.
  • Where an appeal against sentence would fail even under the more favourable legal construction advanced by the appellant, the Court will decline to resolve underlying doctrinal conflicts between earlier decisions.
  • Scale and sophistication of an offence, including the number of premises used and the quantity of drugs cultivated, are factors capable of lifting an offence above the ordinary range within its category, independently of the individual offender's awareness of the full scope of the enterprise.
  • No lesser aggregate sentence was warranted on the facts, notwithstanding the appellant's significant subjective case, including no prior convictions, genuine remorse, diagnosed mental health conditions, and a gambling addiction that contributed to his involvement.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(n)
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a)
- Crimes Act 1900 (NSW), s 93T(1A)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- DPP (NSW) v Cornwall [2007] NSWCCA 359
- Legge v R [2007] NSWCCA 244
- SS v R; JC v R [2009] NSWCCA 114