Quach & Ors, R v [2008] EWCA Crim 2746

No: 200704293/D3-200704384/D4-200704568/D4[2008] EWCA Crim 2746
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 31st October 2008
Strand
London, WC2A 2LL
B e f o r e:
LADY JUSTICE HALLETT DBE
MR JUSTICE FOSKETT
HIS HONOUR JUDGE MORRIS QC
(Sitting as a Judge of the CACD)
R E G I N A
v
CUONG PHU QUACH
SON GIANG BUI
HA THI NGUYEN
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Mr F Chamberlain appeared on behalf of the Appellant Quach
Miss S Loke appeared on behalf of the Appellant Nguyen
Mr T Badenoch appeared on behalf of the Appellant Bui
Mr P Asteris appeared on behalf of the Crown
J U D G M E N T
Between
Quach & OrsDefendantRCrown

LADY JUSTICE HALLETT:

[1]On 18th and 19th July 2007 at the Southampton Crown Court before His Honour Longbotham the appellant, Nguyen, was convicted of conspiring to produce a quantity of cannabis (count 1); converting criminal property (count 2); two counts of converting criminal property (counts 3 and 4) and two counts of obtaining a money transfer by deception (counts 5 and 7). The appellants, Bui and Quach, were also convicted of count 1. Bui was acquitted on count 2, converting criminal property; count 6, obtaining a money transfer and count 8 abstracting electricity. A man called Do should have been tried with the three but he absconded.[2]On 19th July 2007 they were sentenced as follows. Nyuyen on the count of conspiring to produce cannabis, 10 years' imprisonment, on the three counts of converting criminal property, 2 years' imprisonment, each ordered to run concurrently and 2 years’ imprisonment ordered to run concurrently on the two counts of obtaining money transfers, making a total sentence of 10 years. Bui was sentenced to 6 years' imprisonment, Quach was sentenced to 5 years' imprisonment and recommended for deportation. It seems that he was not long in custody in this country before he was sent back to Vietnam.[3]Nguyen has abandoned her application for leave to appeal against conviction, which was referred to us. Having reviewed the strength of the evidence against her, in our view that was a sensible decision. All three of the appellants have leave to appeal against sentence.[4]The background is as follows. Nguyen was the owner of a number of houses including 208 Leigh Road and 71 Westwood Road, Salisbury. She also owned two nail bars, which may or may not have been a front for her cannabis operation. Bui worked for her as a nail technician. He was the owner of a house at 10 Eastleigh Road, Fair Oak. Eastleigh Road was kept under observation by the Hampshire Constabulary. On 17th October 2005 Mr Range, an employee of Southern Electric, went to Eastleigh Road to change the meter. A man answered the door and would not let him in. He returned the following day and met Nguyen. He discovered the meterr had been tampered with and substantial quantities of electricity consumed un-metered to the value of approximately £1300.[5]On the same day police executed a search warrant. Quach was found in a bedroom and when police sought to detain him, he struggled and had to be handcuffed. Nguyen was found in the same room, partially concealed behind a window blind. One officer said when he was outside he saw a woman of oriental appearance trying to get out of an upstairs window. She was taken back inside and when her handbag was searched inside was found a water bill for the property. Downstairs, Do was also detained. Rooms in the house had been fitted with lighting and hydroponics. There were vents in the loft space and the doors and windows were covered in plastic sheeting. Two notes with Vietnamese handwriting on them were found in the loft. When they were translated they were found to contain instructions on how to grow cannabis plants. The Crown alleged the handwriting was Nguyen's.[6]Cannabis plants at different stages of growth were found in the three rooms in the house. They contained 407 plants, with a wholesale value of between about £31,500 to £46,000. The equipment itself was worth nearly £6,000. DNA evidence linked Bui and Do to the house and Quach to the van parked outside. The van had been rented by Nguyen the previous day in her sister's name.[7]By the time the police found Nguyen's other properties, two of them had been placed on the market for sale. Police noted that rooms had been re carpeted, there were vents in the loft, similar to those in Eastleigh Road and of the kind required for cannabis production.[8]Cannabis leaves were discovered at 71 Westwood Road and DNA linked Do to that property also. Again, there were holes in the roof and other equipment almost identical to that found in the loft space in Eastleigh Road. In addition, a neighbour described how the curtains were never opened, people came and went during the early hours but never in the daytime and never at weekends. She heard banging and saw that the occupants had built a ramp to the garage and there were vans parked outside on a regular basis.[9]A police officer gave evidence about money laundering techniques which include, "smurfing", where numerous small amounts are paid into different accounts and cross firing, where there is an unnecessary movement of funds between accounts. He had been through the bank accounts of Nguyen and Bui and he gave evidence that both smurfing and cross firing had occurred here. He could detect no legitimate income. He also noted that one of Nguyen's properties, 22 Churchfield Road, had been sold at a loss. It was his opinion that money laundering had been taking place and it must have been money laundering of thousands of pounds.[10]A Mr Abdul, a mortgage broker, gave evidence that Bui and another oriental man came to see him about a mortgage for Eastleigh Road. When he explained the procedure to Bui, he seemed to understand. He also assisted Nguyen in respect of her mortgage applications. For the purposes of buying 208 Leigh Road, she claimed that her takings from the nail bars were £79,000 a year. However, when she made a mortgage application for 71 Westwood Road, her income was £42,000 in 2003 and £45,000 in 2004. As far as Eastleigh Road was concerned, Bui's basic gross income was said to be £39,000 - rather a large sum for a nail technician. Pay slips supporting the mortgage application were alleged to be false.[11]Martin Rice, the previous owner of Eastleigh Road gave evidence. He saw Nguyen and another woman come to visit the house with a view to purchase. When she did, Nguyen asked her about the electricity supply and voltage. She also returned for a second viewing with Bui. On the third viewing Mr Rice thought all three were present. When there were problems with completion, he arranged to meet Nguyen and Bui.[12]The prosecution alleged that Nguyen and Bui dishonestly obtained their mortgages to purchase the properties in which to grow cannabis commercially. Once the drugs were harvested, Nguyen and Quach were to move it from Eastleigh Road, using the van that Nguyen had hired. Mr Asteris, for the Crown, argued the cigarette butts, showed, firstly, that Bui was present when the cannabis was planted, and secondly, that Quach was going to help remove it. He also submitted the evidence was overwhelming that Westwood Road and Leigh Road were both additional cannabis factories.[13]Nguyen gave evidence at the trial in which she insisted she was not involved in cannabis cultivation and all her financial and property dealings were above board. When something dishonest was pointed out to her, she tried to blame others, claiming she had relied upon them.[14]Quach denied involvement in any conspiracy and claimed that Nguyen was trying to put all the blame on him. Bui gave evidence, during the course of which he did his best to distance himself from the drugs operation. He did not expressly blame his co-accused but it was implicit in some of things he said. He claimed, for example, it was Nguyen who assisted him on transactions like opening a bank account and buying Eastleigh Road.[15]As far as the background of the three is concerned, Nguyen is now39. She has been convicted three times for theft and once for forgery. Bui is now 27. He was of previous good character, it was said, save that when he decided to drive a car he did not seem to bother with having a licence or insurance.1. Quach is now40. He was of good character albeit we note that he was an illegal immigrant and, as we have indicated, he has already been deported.[16]The trial judge observed in his sentencing remarks that each had been convicted of a serious conspiracy. He described Nguyen as having not been honest at trial (something of an understatement) and he also referred to her previous convictions for dishonesty. He referred to the large sums of money that had gone through her bank accounts and he also noted that Bui had described her as "Miss Boss", which, in the judge's opinion, was an accurate description. However, he also observed that Bui seemed to be fond of expensive items and lived an extravagant lifestyle: for example he lost a BMW motorcar in a card game. The judge also noted the extent of Bui's involvement. He was the owner of Eastleigh Road, he found a tenant for it and he was significantly involved. The judge found that Nguyen may be his boss, but his role was more than that of simply doing as he was told. The judge also found that Quach was not just a “gardener” for the drugs. His involvement was to ensure the removal of substantial quantities of the harvested cannabis.[17]The judge considered the value of the drugs actually found. The main crop of drugs when harvested would have amounted to about 6.66 kilograms of cannabis, made up of 3.32 kilograms of skunk and 3.33 kilograms of herbal cannabis. The potential wholesale value was between £10,000 and £15,000. In rooms F and G (as they were described) police found a further 7.17 kilograms of skunk and 7.13 of herbal cannabis worth roughly £26,000.[18]The judge not surprisingly described the operation as "substantial" and "very profitable". He could not, of course, estimate the quantities of drugs that had been produced in the other properties. He accepted that there may have been what he described as "shadowy figures" higher up the chain of production but said there was no evidence of any pressure being placed on any of the defendants before him.[19]He also specifically addressed the issue of whether or not deterrent sentences were required. There was evidence before him of a substantial increase in the number of premises being raided and found to contain commercial cannabis factories. The figure grew from six in 2005 to 36 in 2006, and in the first half of 2007 alone, 29 such premises were discovered. The offenders were usually of Vietnamese origin. The judge bore in mind there is a closely linked and significant Vietnamese community in the area of Southampton. He found there was compelling evidence of a prevalent problem and a deterrent sentence was necessary.[20]Miss Loke, on behalf of Nguyen, argued that the appropriate sentence for the offences of which she was convicted, after trial, should have been in the region 5 to 6 years. She referred the court to a number of authorities including R v Liljerous & Alderson [2004] 1 Cr App R(S) 81. She argued, that the level of sentences suggested therein for offences of this kind already takes account of an element of deterrence. She argued that even if a further element of deterrence was required in the present case, an additional 4 to 5 years was manifestly excessive. Further she argued the sentence of 10 years took no account of the appellant's personal mitigation: Nguyen is a single mother who until her arrest was caring for a 13-year-old daughter. She also reminded the court that the judge seems to have accepted that Nguyen was not at the very top of the organisation behind this conspiracy.[21]Since the hearing below, the Vice-President Latham LJ, has delivered the judgment of this Court in the R v Xu & Ors [2007] EWCA Crim 329. In Xu, the court heard seven appeals together in order to consider the appropriate level of sentencing in cases of large scale cultivation and production of cannabis. The Vice-President indicated that the court was not providing guidelines as such, but the court was prepared to indicate the bracket "within which some consistency of sentencing can be achieved." Latham LJ said this at paragraph 6:
"We consider that for those involved at the lowest level, the starting point should be 3 years before taking into account any plea of guilty and personal mitigation. This reflects the view of this court in KuangVan Nguyen [2007] EWCA Crim 9. For those who set up and control individual operations, the organisers, the starting point should be 6 – 7 years depending upon the quantity of cannabis involved, again before taking into account a plea of guilty and personal mitigation: see Jupp [2002] Cr. App. R. (S) 8 and Liljerous and Alderson [2004] 2Cr App (R)(S) 81 at page 486. The starting point for managers will be somewhere between 3 and 7 years depending on the level of their involvement and the value of the cannabis being produced. Severer sentences may be appropriate for those who control a larger number or network of such operations."
[22]On that basis Miss Loke argued that the 10 years' imprisonment was substantially higher than the range suggested for even controllers and organisers of a large network of cultivations.[23]As far as Bui is concerned Mr Badenoch argued that the sentence of 6 years was excessive. He submitted that Bui's role was at most a “manager” rather than organiser, and he was a manager acting on the orders of his boss, namely Nguyen. Mr Badenoch rightly reminded the court of the counts of which Bui was acquitted. This is Bui's first time in custody and Mr Badenoch argued he has substantial personal mitigation for example his claim for asylum. He claims to have fled Vietnam for fear of persecution. Further, his father died while he was in custody; he has lost contact with his mother and all his natural family and a warrant for his arrest has been issued against him in Vietnam because he practised Buddhism. We would comment in passing, it is clear to us from the way in which this trial was conducted that Mr Bui has not been exactly truthful over the years. Nevertheless Mr Badenoch argued that given the guidance provided in Xu and in other decisions put before us a sentence of 6 years was simply too high.[24]As far as Quach is concerned Mr Chamberlain, in admirably succinct submissions, argued that the sentence of 5 years was excessive, given his role in the conspiracy. The evidence indicated that he was involved simply on one day, the day he was arrested.[25]In his written submissions, Mr Chamberlain referred to the appellant's “good character”. We note, however, he was in the UK illegally. The highest it can be put, therefore, is that before he committed the present offences, he had no previous convictions in this country. Mr Chamberlain also drew support from the decision in Xu for his proposition that if Quach stood to be sentenced as a low-level worker, the starting point should have been 3 years.[26]Looking at the conspiracy as a whole, in our judgment, this was a major operation. It clearly involved more than one centre of production, considerable quantities of drugs and considerable profits. The judge was right to emphasise that the factories produced, not just herbal cannabis but skunk which is a far more pernicious drug.[27]Applying the guidance in Xu, Miss Nguyen stood to be sentenced as an organiser and one who controlled more than one operation. Three separate properties were identified as possible cannabis factories and she was substantially involved in all of them. She bought two of the properties in her own name and went to view Eastleigh Road. She provided £8,500 deposit for its purchase. She also had a bill relating to Eastleigh Road in her possession when arrested.[28]The other two properties may not have contained cannabis by the time they were searched but they bore all the hallmarks of having been at one stage cannabis factories. Mr Asteris also invited out attention to the fact that the properties had all been bought with dishonestly obtained mortgages (which formed the substance of the other counts on the indictment).[29]But, if we are to be true to the jury's verdicts, stood to be sentenced as a manager. He owned Eastleigh Road, where the drugs and his co-accused were found. He was plainly heavily involved in whatever was going on there and therefore, was not merely a low level worker. His was an important role and it was a role in a conspiracy which had a much larger ambit.[30]Quach lived with the only proven organiser before the court, Nguyen, at her main home. He had no known means of income. He was plainly more than a mere gardener. He travelled with Nguyen from London to Eastleigh Road in the rented van, and he was going to be one of those responsible for transporting the fully matured plants from the house to the depot from which they would be supplied to the public.[31]On the question of deterrence, the judge was, in our view, entitled to find this kind of offence was particularly prevalent in the Southampton area amongst the Vietnamese community. Thus, he was entitled to bear that in mind when fixing the appropriate levels of sentence.[32]However, given the roles of the appellants we are persuaded that the sentences were excessive. Bearing in mind the guidance in Xu not available to the judge below, in our judgment, a sentence of 8 years for Nguyen would have been appropriate. We shall quash the sentence of 10 years' imprisonment on count 1 and substitute for it a sentence of 8 years. As far as Bui is concerned, we shall quash the sentence of 6 years and substitute for it a sentence of 5 years. Whether our decision makes any different to Quach we are not sure, nevertheless, we shall quash the sentence of 5 years on him and substitute for it a sentence of 4 years. To that extent and that extent alone the appeals succeed.