SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0122

DUC MINH NGUYEN	Applicant	
		
v		
		
THE QUEEN	Respondent	

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JUDGES:	MAXWELL P and MACAULAY AJA	
WHERE HELD:	MELBOURNE	
DATE OF HEARING:	6 October 2021	
DATE OF JUDGMENT:	10 December 2021	
MEDIUM NEUTRAL CITATION:	[2021] VSCA 346	
JUDGMENT APPEALED FROM:	[2021] VCC 1309 (Judge Smith)	

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CRIMINAL LAW – Appeal – Sentence – Cultivating narcotic plants – Sentence of 18 months’ imprisonment with 12 months non-parole period – Whether manifestly excessive – Removal of cultivation equipment to avoid detection – Extra-curial punishment – Matamata v The Queen [2021] VSCA 253, Guden v The Queen (2010) 28 VR 288 considered – Leave to appeal refused – Drugs, Poisons and Controlled Substances Act 1981, s 72B.

CRIMINAL LAW – Sentence – Sentencing principles – General deterrence – Hydroponic cultivation of cannabis – Whether type of offending more prevalent – Whether sentences effective in deterring potential offenders – Need for Government to publicise penal consequences – Need for change in sentencing practice – DPP v Russell (2014) 44 VR 471 referred to.

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APPEARANCES	Counsel	Solicitors	
			
For the Applicant	Mr R Melasecca	Melasecca Kelly & Zayler	
			
For the Respondent	Mr J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions	

MAXWELL p
MACAULAY AJA:
Introduction
1	The applicant was sentenced in the County Court on 7 September 2021 to 18 months’ imprisonment with a non-parole period of 12 months, having pleaded guilty to one charge of cultivating narcotic plants, namely Cannabis L, contrary to s 72B of the Drugs, Poisons and Controlled Substances Act 1981.  
2	He seeks leave to appeal his sentence on the sole ground that the sentence imposed is manifestly excessive having regard to a combination of factors, namely:
(a)	the prosecution accepted that a combination sentence (ie, a custodial sentence and a community correction order (‘CCO’)) was within range;
(b)	the applicant’s role in the offending was limited in time and fact;
(c)	the applicant had suffered extra-curial punishment as the result of an unprovoked stabbing while on remand;
(d)	the applicant was diagnosed with post-traumatic stress disorder and adjustment disorder with anxiety and depression;  and
(e)	the sentencing judge gave insufficient weight to the sentencing purpose of rehabilitation.
3	For the reasons that follow, we refuse leave to appeal.
	Background
4	On the morning of 12 October 2020, Victoria Police executed a search warrant at a residential property at Point Cook where the applicant and a co-offender were found inside the main bedroom of the premises.  Upon the search being conducted, a total of 142 cannabis plants weighing a total of 31.52 kg were located at the premises.  Ninety-two of the plants (a total of 31.46 kg) were found growing hydroponically inside the roof cavity of the house and the remaining 50 immature cannabis plants (a total of 60.5 g) were found in a kitchen cupboard.
5	A white plastic bag containing 24.2 g of dried cannabis was located on the kitchen bench.  A number of transformers and a box containing a bowl, scissors, scale, gloves and plant tie-wire were located in the kitchen pantry.  In each of the three bedrooms, the walk-in wardrobes contained approximately 10 transformers partially concealed by a bedsheet.  Holes were cut into the plaster ceiling with large ventilation ducts attached which fed the hydroponic system in the roof cavity.
6	Concealed behind the plaster within the wall in the master bedroom was an electrical bypass used to cultivate the cannabis.  Further equipment including lighting, packaging and black grow tubs was found in the kitchen and in the rear of a van parked in the garage of the premises.  The van had been hired by the applicant.
7	On the plea, it was accepted by the prosecutor that the co-offender was the principal offender.  The co-offender had been growing the cannabis plants at the premises for some six weeks.  He pleaded guilty to the charge of cultivation of not less than a commercial quantity of Cannabis L, and the judge sentenced him to 2 years and 6 months’ imprisonment with a non-parole period of 20 months.
8	On the other hand, the applicant had only been at the premises for a couple of days.  When interviewed by the police, the applicant said he had been told by somebody to go to the premises and sleep there because the next day someone from the bank would be inspecting the property.  The applicant admitted he had rented the van parked in the garage.  He said he had been told by his co-offender to clean rubbish away and put it in the van, but claimed he did not know what the rubbish was.  He said that he and his co-offender had loaded the van together, and he denied knowing who the equipment belonged to.  The applicant denied that the cannabis belonged to him or knowing how much was present at the premises.  He also denied moving the plants from the room into the roof of the house.  He said he was to be paid to attend the premises on completion of the job.
9	Both the applicant and the co-offender were remanded in custody from the date of their arrest until being sentenced, by which time the applicant had been in pre-sentence detention for 330 days.  The applicant pleaded guilty after a contested committal on 15 April 2021.
10	At the time of sentence, the applicant was 29 years of age.  He had been born in Russia to Vietnamese parents who lived in Russia for work purposes.  He was sent to live with his grandparents in Vietnam when he was young, while his parents remained in Russia, and he had virtually no contact with them until many years later.  He travelled to Australia in 2014 when aged about 22, was granted a student visa and commenced study in Melbourne.  He found his course difficult and his study results were unsatisfactory.
11	The applicant moved to Sydney where he undertook another course, a certificate in Business Management, which he ceased in July 2017.  From information he gave later to a psychologist, Dr Sandra Nguyen — whose evidence was relied upon at the sentence hearing — it appears that in 2017, the applicant’s parents had a number of health concerns in Vietnam which extended to surgical intervention, hospital admissions and treatment.  The applicant told the psychologist that he struggled to manage his worry and anxiety for his family ‘who he loved dearly’.  He feared that something tragic might happen to his parents and that he would be separated from them forever.  At that point, he developed insomnia and struggled with his concentration and memory but he sought no treatment for his condition.  That period in his life appears to mark the onset of the depression with which he was later diagnosed.
12	The applicant failed to respond to a notice given to him by migration officials in March 2018 of intention to consider cancellation of his student visa.  His student visa was cancelled at a hearing before the Migration Tribunal in July 2019.  Although he later appealed that decision, his entitlement to work in Australia was cancelled.  Thereafter he performed casual jobs for cash to meet his living costs.  At some point he returned to Melbourne.  He told Dr Nguyen that he hoped to commence studying again for a trade as a carpenter.
13	While in remand, the applicant was stabbed in the back by another prisoner after the applicant used some mint from a prison garden.  When he tried to run away he was stabbed again, this time in the chest.  He was taken to the Royal Melbourne Hospital for treatment and appeared to make a relatively good recovery from the injuries he had suffered. 
14	The applicant told Dr Nguyen that after the stabbing he was ‘in shock, disbelief and felt very scared for his safety’.  Since the attack, he has experienced recurrent distressing memories of the stabbing as well as nightmares of the attack which often wake him from sleep.  He reported being hyper-vigilant and that his symptoms cause him significant distress and impairment in his social and daily functioning.  Dr Nguyen made a diagnosis of post-traumatic stress disorder. 
15	In addition, Dr Nguyen reported that the applicant suffered from a depressed mood, complaining of chronic insomnia and preoccupation with thoughts about the welfare of his parents and brother as well as his own future.  He reported feelings of worthlessness and hopelessness which have affected his self-esteem and self-confidence.  Dr Nguyen diagnosed the applicant with an adjustment disorder with mixed anxiety and depressed mood.
16	At the sentence hearing on 19 August 2021, the applicant tendered a letter from his migration lawyers.  The lawyers reported that the applicant’s appeal against  the cancellation of his student visa in the Federal Circuit Court had been referred to a directions hearing in May 2020 but no date had yet been set for the final court hearing.  The lawyers reported that the applicant held a bridging visa entitling him to live lawfully in Australia for an indefinite period of time until a decision of the Federal Circuit Court.  It was noted that the applicant’s bridging visa was potentially liable to cancellation due to the criminal charge for which he was due to be sentenced.
17	A Vietnamese couple with connections to the applicant’s family provided a letter to the Court stating that they were willing to support the applicant until he obtained a visa and that they would accommodate him free of charge and support him during his time in Australia.
18	The judge sentenced the applicant on the basis that:
(a)	the charge to which he had pleaded guilty carried a maximum penalty of 15 years’ imprisonment;
(b)	the offence was committed at a time when the applicant’s entitlement to work had been cancelled;
(c)	the applicant suffered ongoing psychological issues as a consequence of him having being stabbed while on remand;
(d)	the applicant had been diagnosed with post-traumatic stress disorder as a result of his stabbing, and an adjustment disorder with mixed anxiety and depressed mood, associated with concerns for his parents’ health issues, the impact of his offending on his family and feelings of abandonment from an early age;
(e)	Dr Nguyen considered the risk of recidivism was low and his prospects of rehabilitation were good;
(f)	as submitted on his behalf, the stabbing incident was relevant to mitigation of the sentence because it was a form of extra-curial punishment;
(g)	as a consequence of the COVID-19 pandemic, life in prison was more restricted and difficult than it otherwise would have been, and the applicant’s contact with the outside world had been severely curtailed, which had increased his anxiety about his family;
(h)	the applicant had no prior convictions in either Australia or Vietnam; 
(i)	the applicant’s role in the cultivation of cannabis at the premises was less than that of the co-offender.  Although he had been ‘present at the premises for only a few days before [his] arrest and … [he] had little knowledge of the extent of the cultivation taking place in the premises’, nevertheless, he ‘knowingly assisted [the co-offender] in the cultivation for more than two days and took an active part in the operation of hiring a van for the specific purpose of moving hydroponic cultivation equipment’;  and
(j)	the applicant had family friends in Melbourne who were willing to support him until he received a visa and who would have allowed him to live at their home free of charge and with their support.
19	Having considered those matters, the judge held:
I do not consider that any sentence not involving a period of incarceration would be sufficient in your case. In particular, I consider that the principles of deterrence, personal deterrence and general deterrence for others in the community are of real importance here.
Submissions
20	In oral submissions, the applicant chiefly focused on the risk of deportation.  It was submitted that it was open to the judge to impose a combined sentence involving a custodial component of less than 12 months, given the relatively low level of participation of the applicant in the cultivating enterprise.
21	The applicant drew attention to Matamata v The Queen in which this Court considered a combined sentence involving a custodial component and a CCO.  The Court reduced the custodial component from 12 months to 10 because mandatory deportation would have ‘created a significant risk of fundamentally undermining’ the sentencing purpose of rehabilitation. 
22	In the applicant’s case, a custodial sentence of less than 12 months would have avoided triggering the mandatory deportation provisions in s 501(3A)(a)(i) of the Migration Act 1958.  According to the applicant’s submission, combining the custodial portion with a CCO would permit the rehabilitative objective to be implemented (eg, education, psychological counselling, obtaining compensation for injury).  It appears (although, there was arguably some ambiguity about this) that at the sentence hearing, the prosecutor conceded that such a sentence was open to the judge. 
23	In this Court, the applicant submitted that the failure of the judge to impose a combination sentence, with a custodial component of less than 12 months together with a CCO, produced a sentence that was manifestly excessive because it undermined the important sentencing objective of rehabilitation.
24	The submission assumed that the basis on which the prospect of the applicant’s deportation might have been relevant as a mitigating factor, in conformity with Guden v The Queen, had been put to the judge.  It was fairly and properly accepted on behalf of the applicant that it had not been ‘clearly articulated’.  Nevertheless, the applicant submitted that the judge had been apprised of the relevant facts.
25	Additionally, on behalf of the applicant it was submitted that his participation in the cultivation of the cannabis crop was at a low level, with counsel describing the applicant’s role as an ‘accessory’.  However, counsel readily conceded that the applicant had pleaded guilty to cultivating.
26	The respondent submitted that the ground of manifest excess is not made out merely by showing that another sentence may have been within range.  In this case, the respondent argued, the sentence imposed was well open to the judge in a sound exercise of the sentencing discretion while giving appropriate weight to all relevant considerations. 
27	On the potentially mitigating factor concerning the applicant’s prospects of deportation, the respondent submitted that the applicant’s problem was not that submissions had not been clearly articulated on his behalf.  Rather, the problem was that there was simply no evidence to make out the basis for the mitigating factor.  First, the evidence showed that even before the offending, the applicant had no realistic expectation of permanent residence in Australia and was already on the path to potential deportation because of his breach of the conditions of his student visa. 
28	Secondly, there was a complete dearth of evidence to establish that the applicant had an expectation of permanent residence in Australia, or that the prospect of deportation weighed heavily on him so as to make custody more burdensome for him than would otherwise be the case.  Instead, the evidence suggested that the applicant struggled being away from his family in Vietnam, particularly given that his parents had significant health problems.  The applicant had no real support within the Australian community, no spouse, children, family members or other close ties.  There was no reference in Dr Nguyen’s report that the applicant had expressed concern about the prospect of his return to Vietnam or that this would make his time in custody more onerous.  To the extent that the applicant was anxious about his family in Vietnam, the judge had given weight to that fact.
29	Finally, in relation to the contention that the prosecutor on the plea had accepted that a combination sentence with a custodial component of less than 12 months was open, the respondent submitted that, even if that was the case, the prosecutor’s remark was a mere submission and it was for the judge to consider what was the appropriate disposition. 
Analysis
30	In our view, the respondent’s submissions are persuasive and, collectively, demonstrate why the applicant has no real prospect of success on his proposed ground of appeal.
31	In essence, the applicant’s case initially appeared to be inspired by the objective of achieving a custodial component of less than 12 months to avoid triggering mandatory deportation (although by the time of the hearing of the application that objective had been overtaken by events). As argued by the respondent on the hearing of the application, it is of no consequence that the prosecutor (may have) conceded before the sentencing judge that a combination sentence involving a custodial component of less than 12 months was ‘in range’.  That was no more than a submission, which could not constrain the judge’s sentencing discretion. 
32	Viewed objectively, the cannabis operation in which the applicant was involved was one of some sophistication.  While it is true that his role in cultivating cannabis was confined relative to his co-offender, the applicant nonetheless fell to be sentenced as a person who had pleaded guilty to the charge of cultivating narcotic plants.  Relevant to the gravity of his offending, the judge specifically described the applicant’s particular involvement in that operation as being of limited duration and activity.  Consistently with the applicant’s plea of guilty to the offence, however, the judge sentenced him on the basis that he knowingly assisted the co-offender in the cultivation enterprise over a few days and took an active part in hiring the van to move the cultivation equipment (to prevent discovery of the operation) before the visit by the bank officer.  
33	The circumstances of the applicant having been stabbed while in prison and his consequent post-traumatic stress disorder were both factors which the judge appropriately and specifically took into account in the sentencing calculus.  No argument was advanced on the leave application that the judge had committed any specific error in his consideration of those circumstances.  Instead, the applicant referred to those circumstances in the context of an argument that, together, they should have reduced the weight given to specific deterrence and increased the weight given to rehabilitation:  such rehabilitation to be more effectively advanced through services available in the community rather than in prison, and still more effectively in Australia rather than in Vietnam.
34	As noted, the judge specifically accepted that the applicant suffered ongoing psychological issues as a result of the stabbing and that the incident of itself was a form of extra-curial punishment.  The judge further noted that the applicant’s likelihood of recidivism was low and his prospect of rehabilitation was good.  In other words, the judge sentenced the applicant by according some weight to each of those matters.
35	All that said, taking account of these matters does not extinguish the role of specific deterrence nor does it require that rehabilitation must assume precedence over other sentencing considerations.  We hasten to say that the applicant did not put his submission that high.  But the point we emphasise is that the sentencing process involves the simultaneous pursuit of a number of objectives, some of which tend towards conflicting sentencing outcomes.  As has been said before, absent any specific error, it is simply not possible to say of a particular sentencing factor that the judge attributed too much or too little weight to it.  All that can be addressed is whether the sentence is outside the range reasonably open to the judge if proper weight were given to all the relevant sentencing factors.
36	We see nothing remarkable in the judge deciding in this case, after giving due weight to the sentencing objectives of both specific and general deterrence, that nothing less than a sentence involving a period of custody was appropriate.  Once the judge determined that a custodial sentence be imposed — and no challenge was made to that conclusion — whether or not that element should also be combined with a CCO was a matter for fine judgement.  Not combining the custodial sentence with a CCO does not, in the circumstances of this case, denote any failure to give adequate weight to a rehabilitation purpose.  Additionally, we note that the judge fixed a non-parole period of 66 per cent of the head sentence, allowing for a potential period on parole of 6 months — an archetypal means of meeting an aspect of the rehabilitation objective. In short, there is no merit in the submission that insufficient weight was given to the sentencing purpose of rehabilitation.
37	As for the contention that inadequate weight was given to the applicant’s prospects of deportation, we agree with and adopt the respondent’s submission. There was simply no evidence of the nature referred to in Guden to make out the basis for this mitigatory factor.  For that reason, the present case is altogether different from Matamata.
38	By fixing a maximum penalty of 15 years’ imprisonment, Parliament has emphasised the seriousness of this offence.  Notwithstanding the various factors which the applicant has relied upon, whether singularly or in combination, we do not think it is reasonably arguable that a custodial sentence of 18 months — 10 per cent of the maximum penalty — with a non-parole period of 12 months, is manifestly excessive.
39	We deal finally with the issue of general deterrence as it applies to offending of this kind.  On the plea, the sentencing judge referred to the seeming prevalence of cannabis cultivation in ‘crop houses’ and expressed doubt as to ‘whether the sentence[s] are succeeding in deterring anybody’.  We are unable to comment on the question of prevalence, but would make two short points about general deterrence.
40	First, as this Court explained in Director of Public Prosecutions v Russell, general deterrence is an empty sentencing objective unless those who might contemplate offending of the relevant kind are made aware of the penal consequences which will follow if they do.  Publicising those consequences is a task for Government, not for the courts.  Courts widely publish their reasons for sentence in individual cases.  But, as stated in Russell, the publication of sentencing reasons can never be enough of itself to ‘send the message’ on which the theory of general deterrence rests.  In relation to cannabis cultivation, a targeted advertising campaign highlighting the risks of imprisonment and (where relevant) deportation would be likely to have a salutary effect.
41	The second point is related.  It concerns this Court’s repeated calls for increased sentences for cultivation offences involving commercial quantities.  The responsibility for pursuing that change in sentencing practice — which would flow on to sentences for cultivation simpliciter — rests squarely with  the Director of Public Prosecutions, both at first instance and in this Court.  Subject once again to  the necessary publicity, the imposition of sentences which properly reflect the applicable maximum penalties would undoubtedly advance the objective of general deterrence. 
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