Hanh Thi Nguyen v R - [2011] NSWCCA 92

Court of Criminal Appeal

New South Wales

Case Title: Hanh Thi Nguyen v Regina

Medium Neutral Citation: [2011] NSWCCA 92

Hearing Date(s): 1 April 2011

Decision Date: 06 May 2011

Jurisdiction:

Before:
Simpson J at 1; Davies J at 18; Grove AJ at 19

Decision:
1. Leave to appeal against sentence granted.
2. Appeal dismissed.

Catchwords:
CRIMINAL LAW - Cultivating not less than a large commercial quantity of prohibited plants (cannabis) by enhanced indoor means -applicant's naivety and vulnerability - offence in the mid-range of objective gravity - discussion of indicator in the role of an offender as principal - contributing financially - standing to share in the profit - management of operation - decision making role - unsupervised in advancing the cultivation - in charge of the operation - re-planting failed crops - recruiting assistance - whether offender could be categorised as principal in enterprise (Simpson and Davies JJ - No, Grove AJ - Yes) - sentence not manifestly excessive

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
R v Way (2004) 60 NSWLR 168
Tran v R (2010) NSWCCA 72
R v LP (2010) NSWCCA 154
Wong v R (2010) NSWCCA 160

Texts Cited:

Category: Principal judgment

Parties:
Hanh Thi Nguyen (Applicant)
Regina (Respondent)

Representation

- Counsel:
Counsel:
H. Dhanji SC (Applicant)
S. Dowling (Respondent)

- Solicitors:
Solicitors:
J. Doolan (Applicant)
S. Kanavagh, Solicitor for Public Prosecutions (Respondent)

File number(s): 2009/149545

Decision Under Appeal

- Court / Tribunal:

- Before: Syme DCJ

- Date of Decision: 16 April 2010

- Citation:

- Court File Number(s) 2009/149545

Publication Restriction:

Judgment

SIMPSON J: I have read in draft the judgment of Grove AJ. Subject to what follows, I agree with his Honour's analysis. I do not propose to restate the facts, or the arguments.

I have difficulty with the proposition that the applicant was a "principal" in the drug enterprise. A finding to that effect was made by the sentencing judge where she held that the applicant and Mr Ngo were, on the evidence available, partners and joint principals of the operation (ROS p 6), and, again, in saying, of the applicant, that "she was one of at least two principals" (ROS p 7). She explained this by adding:

"[The applicant] was physically involved in an important part of the cultivation process; she was not associated with the major part of the setting up but was involved in the day to day management of the crop and recruited Mr Vu to assist her. She was seeking to profit from the venture but there is no information as to how much she was seeking to make."

This was immediately followed by:

"I accept that she was used by others who may have preyed upon her naivety and vulnerability ..."

The fact finding exercise for her Honour was difficult. The Agreed Statement of Facts was, in part, based upon a recorded interview in which, as the applicant subsequently acknowledged, she did not tell the truth. The evidence the applicant gave in…

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.

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Details

Case: [2011] NSWCCA 92
Decision Date: 06 May 2011

CaseChat Overview and Summary

The applicant was charged with cultivating a large commercial quantity of cannabis in her home. The case was heard by the Supreme Court of Victoria. The appeal was against conviction and sentence for cultivating not less than a large commercial quantity of a prohibited plant by enhanced indoor means. The applicant was sentenced to four years' imprisonment, with a non-parole period of two years and nine months. The appeal concerned whether the applicant could be categorised as a principal in the enterprise, and whether the sentence was manifestly excessive.

The court examined whether the applicant could be considered a principal in the enterprise, given her naivety and vulnerability, and her role in the offence. The majority of the court held that the applicant was not a principal, as she did not have a decision-making role in the management of the operation, and was unsupervised in advancing the cultivation. However, Grove AJ dissented, finding that the applicant was a principal, as she contributed financially, stood to share in the profit, re-planted failed crops, and recruited assistance. The court also considered whether the sentence was manifestly excessive, and found that it was not.

The majority of the court held that the applicant was not a principal in the enterprise, as she did not have a decision-making role in the management of the operation, and was unsupervised in advancing the cultivation. The court found that the applicant was not in charge of the operation, and did not have a significant role in the decision-making process. The court also found that the applicant's naivety and vulnerability were relevant factors in determining her role in the enterprise. Grove AJ dissented, finding that the applicant was a principal, as she contributed financially, stood to share in the profit, re-planted failed crops, and recruited assistance. The court also considered whether the sentence was manifestly excessive, and found that it was not. The court found that the sentence was appropriate, given the objective gravity of the offence, and the role of the applicant in the enterprise.

Orders