Ly v Regina - [2006] NSWCCA 324

CITATION: LY v REGINA [2006] NSWCCA 324

HEARING DATE(S): 4 October 2006

JUDGMENT OF: Sully J at 1; Adams J at 2; Howie J at 23

EX TEMPORE JUDGMENT DATE: 10/04/2006

DECISION: Leave to appeal granted; appeal dismissed.

CATCHWORDS: Sentence appeal - cultivation of cannabis - no question of principle - appeal dismissed.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 ss 43, 44(1)

CASES CITED: Edwards (1996) 90 A Crim R 510
Ho v DPP (1995) 37 NSWLR 393
R v Wood [2005] NSWCCA 233

PARTIES:
Hoan Tuyet LY (Applicant)
REGINA (Respondent)

FILE NUMBER(S): CCA 2006/1934

COUNSEL: Mr P Boulton SC (Applicant)
Mr W Dawe QC (Respondent)

SOLICITORS: AKN & Associates (Applicant)
S Kavanagh (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1208

LOWER COURT JUDICIAL OFFICER: Boulton ADCJ

LOWER COURT DATE OF DECISION: 2 February 2006

2006/1934

SULLY J
ADAMS J
HOWIE J
4 October 2006

Hoan Tuyet LY v REGINA

Judgment

1 SULLY J: I invite Adams J to give the first judgment.

2 ADAMS J:

Introduction

3 The defence at trial was, essentially, that the applicant was unaware that the plants she was assisting to cultivate were cannabis. The objective facts were not, in substance, in dispute either at trial or on sentence. There was no submission in this Court that any of the factual findings of the learned sentencing judge were wrong. The following account is largely taken from the learned sentencing judge’s reasons for sentence.

Facts

4 In July 2003 the applicant and her husband rented a three-bedroom house in Hurstville for a term of six months. When this period expired the tenancy continued in the usual way. In mid April 2004 police went to the house. In the garage they found peat moss, plastic pots, fertiliser and the like. Inside the house was an elaborate lighting and ventilation system powered by an illegal bypass of the metered electricity supply. One hundred and eighty three cannabis plants at three distinct stages of maturity were seized, along with some 10 kg of dried cannabis. (Although the applicant was charged with the deemed supply of this cannabis, the jury were unable to agree on a verdict.) Photographs were discovered depicting the applicant and her husband with the plants, including what was called the “mother plant”: the plant from which the cannabis plants were propagated. These photographs were dated from January 2004. The denials by the applicant that the dates were accurate were disbelieved by the jury and by the learned sentencing judge. The applicant claimed that a person named…

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 Ly v Regina

Details

AGLC: LY v REGINA [2006] NSWCCA 324
Case: [2006] NSWCCA 324
Decision Date: 04/10/2006

CaseChat Overview and Summary

In the matter of Ly versus Regina, the appellant was convicted of cultivating cannabis and sentenced to imprisonment. The appeal was brought before the court to challenge the severity of the sentence imposed. The central issue before the court was whether the sentence was manifestly excessive in light of the circumstances of the case and the principles guiding sentencing. The appellant argued that the sentence was disproportionate to the offence and the personal circumstances presented at the time of sentencing.

The court carefully reviewed the sentencing principles applicable to the cultivation of cannabis, considering the nature of the offence and the appellant's background. The court acknowledged the appellant's role in cultivating cannabis but also noted the absence of any compelling mitigating factors. The primary focus of the court was to ensure that the sentence reflected the seriousness of the offence while also considering the individual circumstances of the offender. The court concluded that the sentence was not manifestly excessive and was within the range of sentences that could be considered appropriate for such an offence.

The appeal was dismissed by the court. The judges found that the sentence imposed was neither manifestly excessive nor outside the range of sentences that could be considered appropriate for the offence. The court's decision highlighted the importance of maintaining a balance between the seriousness of the crime and the individual circumstances of the offender. The court upheld the sentence, affirming that it was commensurate with the gravity of the offence and the need to uphold public confidence in the criminal justice system.

Orders