Hanh Thi Nguyen v The Queen
[2012] HCASL 61
HANH THI NGUYEN
v
THE QUEEN
[2012] HCASL 61
S368/2011
On 16 September 2009, in the Local Court in New South Wales, the applicant pleaded guilty to an offence of cultivating not less than a large commercial quantity of prohibited plants (cannabis) by enhanced indoor means. This offence carries a maximum penalty of 20 years' imprisonment and, by virtue of s 54A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a standard non-parole period of 10 years' imprisonment when in the middle of the range of objective seriousness.
On 16 April 2010, the applicant was sentenced in the District Court of New South Wales to imprisonment of six years five months with a non-parole period of four years nine months. In imposing this sentence, the sentencing judge (Syme DCJ) considered matters including the applicant's level of involvement in the offence (which was held to be such that the applicant was one of at least two "principals" involved); her expectation of some profit; her level of naivety; her remorse and contrition; and her early guilty plea. Her Honour found the criminality of the offence to be slightly less than mid-range seriousness but much closer to mid-range than low-range.
On 6 May 2011, the Court of Criminal Appeal of the Supreme Court of New South Wales (Simpson and Davies JJ and Grove AJ) unanimously dismissed the applicant's appeal. The grounds of appeal included a contention that the sentencing judge had erred in applying the standard non-parole period, by taking into account subjective factors (for example, remorse and contrition) when considering the objective seriousness of the offence. Grove AJ (with whom Simpson and Davies JJ relevantly agreed) accepted that the sentencing judge so erred. However, given that such subjective factors favoured the applicant, the error would not have elevated the assessment of seriousness and therefore had no adverse consequences for the applicant.
The applicant's application for special leave to appeal to this Court contends that the Court of Criminal Appeal erred in law in applying s 54B of the Crimes (Sentencing Procedure) Act. Section 54B(2) provides that when determining the sentence for an offence, the court is to set the standard non-parole period as the non-parole period for the offence unless it determines that there are reasons for setting a non-parole period that is longer or shorter. The error is said to be that the Court of Criminal Appeal applied the standard non-parole period as a "statutory mandate", requiring a comparison of the objective gravity of the offence committed with some hypothetical offence in the mid-range of objective gravity, contrary to this Court's recent decision in Muldrock v The Queen (2011) 85 ALJR 1154; 281 ALR 652; [2011] HCA 39.
The applicant requires an extension of time to file his application in this Court. We would grant that application, but dismiss his application for special leave to appeal. Even if the Court of Criminal Appeal erred in the manner contended by the applicant, it imposed a non-parole period well below the standard non-parole period. It did so despite the fact that the offence itself was characterised as only slightly below the mid-range of objective seriousness, a characterisation not challenged by the applicant. Thus, even if the Court of Criminal Appeal's reasons are inconsistent with aspects of this Court's reasoning in Muldrock, an appeal would have insufficient prospects of success to justify the grant of special leave.
Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application.
W.M.C. Gummow S.M. Kiefel 29 March 2012
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