CO, Ngoc Van v R - [2011] NSWCCA 148

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: CO, Ngoc Van v R [2011] NSWCCA 148
Hearing dates: 8 February 2011
Decision date: 28 June 2011
Before: GILES JA [1]
RS HULME J [2]
ADAMS J [39]
Decision:
Leave to appeal granted.
Appeal dismissed.

Legislation Cited: Drug Misuse and Trafficking Act 1985 s23(2)(a) and s33(3)
Crimes (Sentencing Procedure) Act 2007
Cases Cited: Wong v R [2001] HCA 64; (2001) 207 CLR 584
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
R v Hung Phuc LY (unreported, 7 October 2010)
Wong v R [2010] NSWCCA 160
Phan v R [2010] NSWCCA 8
Tran v R [2010] NSWCCA 72
R v LP [2010] NSWCCA 154
Pham v R [2011] NSWCCA 3
Category: Principal judgment
Parties: Ngoc Van CO
Regina
Representation: Mr M Ramage QC
Ms J Dwyer
AKN & Associates
S Kavanagh

File Number(s): 2009/230880
Decision under appeal

Date of Decision:

2010-04-09 00:00:00

Before:

Keleman DCJ

Judgment

GILES JA For the reasons given by RS Hulme J, none of the grounds of appeal is made out - I agree with the orders proposed by his Honour.

RS HULME J: On 9 April 2010 this Applicant for leave to appeal was sentenced by Keleman DCJ in respect of an offence of cultivating not less than a large commercial quantity of cannabis plants by enhanced indoor means contrary to s23(2)(a) and s33(3) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for the prescribed offence is 20 years and a fine of 5000 penalty units. A standard non-parole period of 10 years imprisonment was specified by the Crimes (Sentencing Procedure) Act 2007 which commenced on 1 January 2008. The large commercial quantity for prohibited plants cultivated by enhanced indoor means is 200 or more and the Applicant's offence involved 266 plants.

The sentence imposed was of imprisonment for 7 years and 6 months, including a non-parole period of 4 years, both periods commencing on 16 October 2009. His Honour declined to impose a penalty on an associated offence of dealing with electricity without authority.

The Applicant resided at the premises where the cultivation occurred, having leased them 12 months earlier. The premises themselves were heavily fortified with steel roller shutters installed on all windows, steel security doors installed on all entrances and numerous sensor lights and CCTV cameras installed on the exterior. Located in five rooms inside the premises was a sophisticated hydroponic set up. The plants varied in size from 100mm to in excess of 1 metre. Electricity to the premises was supplied via an illegal bypass from the mains power lines.

On the occasion when the police searched the premises the Applicant was arrested. When interviewed he made full admissions to nurturing the 266 plants for the previous 3 months and advised that he had intended to sell the cannabis leaf following the harvesting of the plants. However, to a psychologist whose report was tendered in evidence, the Applicant asserted he was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CO, Ngoc Van v R

Details

AGLC: Co, Ngoc Van v The Queen [2011] NSWCCA 148
Case: [2011] NSWCCA 148
Decision Date: 28 June 2011

CaseChat Overview and Summary

The Court of Criminal Appeal of the Supreme Court of New South Wales considered an appeal by Ngoc Van CO against a sentence imposed by Keleman DCJ for cultivating a large commercial quantity of cannabis plants by enhanced indoor means, contrary to the Drug Misuse and Trafficking Act 1985. The Applicant was sentenced to imprisonment for 7 years and 6 months, with a non-parole period of 4 years. The Applicant appealed on the grounds that the sentence was unduly harsh and severe, that the sentencing judge erred in his assessment of the offence's objective seriousness and the Applicant's remorse, and that insufficient allowance was made for the Applicant's favourable circumstances. The Court had to decide whether the sentence imposed was manifestly excessive and whether the sentencing judge erred in his assessment of the case.

The Court found that the sentencing judge was correct in his emphasis on general deterrence and punishment due to the serious nature of the offence. The Court also held that the sentencing judge was not in error in finding that the offence fell within the middle range of objective seriousness, albeit at the lower end. The Court further determined that the sentencing judge was entitled to conclude that the Applicant's remorse was limited based on the disparity between the Applicant's admissions to the police and his self-serving statements to the psychologist. The Court noted that while a plea of guilty may be evidence of remorse, it is not conclusive. The Court also found that the sentence imposed was not manifestly excessive, as demonstrated by several similar cases where the Court had upheld sentences of comparable severity. The Court therefore granted leave to appeal but dismissed the appeal.

Orders