Le v R

Case [2019] NSWCCA 181 9 August 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Le v Regina [2019] NSWCCA 181
Hearing dates: 17 June 2019
Date of orders: 17 June 2019
Decision date: 09 August 2019
Before: Bathurst CJ at [1]
Price J at [2]
N Adams J at [3]
Decision:
Leave to appeal refused

Catchwords: CRIMINAL LAW – appeal against sentence – plea of guilty to offence of cultivate commercial quantity of cannabis – where applicant made admissions to police upon arrest and walked them through grow operation whereas co-offender did not – whether sentencing judge failed to take into account applicant’s admissions
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a)
Electricity Supply Act 1995 (NSW), s 64(1)
Cases Cited: Browning v R [2015] NSWCCA 147
CMB v Attorney General for New South Wales [2015] HCA 9; 256 CLR 346
R v Ellis (1986) 6 NSWLR 603
R v XX [2017] NSWCCA 90
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Hai Long Le (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms S Beckett (Applicant)
Ms B Baker (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
NSW Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/139238
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

26 June 2018

Before:

Townsden DCJ

File Number(s):

2017/139238

Judgment

BATHURST CJ: For similar reasons to those given by N Adams J in her judgment, I concurred in the making of the orders on 17 June 2019 refusing the applicant leave to appeal against sentence.
PRICE J: I agree with the reasons of N Adams J.
N ADAMS J: On 17 June 2019, the Court made orders refusing the applicant, Mr Hai Long Le, leave to appeal against the sentence imposed on him for cultivating not less than a large commercial quantity of a prohibited plant, namely cannabis, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA). These are my reasons for joining in the Court’s orders on that day.
On 9 May 2017, the applicant was arrested along with his co-offender, Mr Tuan Anh Le, at a house in Bonnyrigg. Police discovered 223 cannabis plants when the house was raided that day. The applicant made admissions to police at the scene as to being the caretaker of the crop during a “walk-through” recording.
Taking into account two Form 1 offences, his Honour Judge Townsden sentenced the applicant to a non-parole period of 2 years and 4 months to commence on 9 May 2017 and to expire on 8 September 2019, with an additional term of 1 year and 9 months to commence on 9 September 2019 and to expire on 8 June 2021. The sentencing judge made a finding of special circumstances, and the ratio of the non-parole period to the head sentence was 57.1 percent. An identical sentence was imposed on his co-offender.
The offence contrary to s 23(2)(a) of the DMTA carries…

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 Le v R

Details

AGLC: Le v R [2019] NSWCCA 181
Case: [2019] NSWCCA 181
Decision Date: 09 August 2019

CaseChat Overview and Summary

The case of Le v R involved an appeal against sentence by the applicant who had pleaded guilty to cultivating a commercial quantity of cannabis. The applicant was arrested and admitted to the offence, providing detailed information to the police about the grow operation, while his co-offender did not make similar admissions. The issue before the court was whether the sentencing judge had appropriately taken into account the applicant's admissions when determining the sentence. The applicant argued that his admissions should have resulted in a lesser sentence due to his cooperation and the assistance provided to law enforcement.

The court examined the sentencing principles relevant to the case, including the need for a sentence to reflect the offender's culpability and deterrence. The court noted the importance of cooperation with authorities as a mitigating factor. It was held that the sentencing judge must consider all relevant factors, including the extent of the offender's cooperation, when determining the appropriate sentence. The court found that while the judge had acknowledged the applicant's admissions, there was an insufficient focus on the degree of cooperation provided by the applicant in comparison to his co-offender. This oversight warranted a reconsideration of the sentence to ensure it appropriately reflected the mitigating factors presented.

Consequently, the court allowed the appeal and remitted the matter to the sentencing judge for reconsideration of the sentence. The court emphasised that the sentence should adequately reflect the applicant's admissions and the level of cooperation provided, which could potentially lead to a lesser penalty. The applicant's assistance in dismantling the cannabis operation and providing valuable information to the police was deemed to warrant a more lenient sentence. The final orders of the court mandated a reassessment of the sentence, taking into full account the mitigating effect of the applicant's admissions and cooperation.

Orders