Phan v R

Case [2010] NSWCCA 8 11 February 2010

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
PHAN v R [2010] NSWCCA 8

FILE NUMBER(S):
2008/14630

HEARING DATE(S):
1 February 2010

JUDGMENT DATE:
11 February 2010

PARTIES:
Van Dieu PHAN - Applicant
REGINA - Respondent/Crown

JUDGMENT OF:
Grove J Simpson J RA Hulme J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/14630

LOWER COURT JUDICIAL OFFICER:
Woods DCJ

LOWER COURT DATE OF DECISION:
12 March 2009

COUNSEL:
S Corish - Applicant
J Girdham - Respondent/Crown

SOLICITORS:
S O'Connor, Legal Aid - Applicant
S Kavanagh - Solicitor Public Prosecutions - Respondent/Crown

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
Prohibited drug grown by enhanced indoor means
Sentence
Limited role of offender
Plea of guilty
Standard non-parole period prescribed
Previous offending relating to drugs
Head sentence and non-parole period significantly less than standard prescription
No error in assessment by sentencing judge

LEGISLATION CITED:
Electricity Supply Act 1995

CATEGORY:
Principal judgment

CASES CITED:
Markarian v The Queen (2005) 228 CLR 357
TC v Regina [2009] NSWCCA 296
R v Way (2004) 60 NSWLR 168
SKA v R [2009] NSWCCA 186

TEXTS CITED:

DECISION:
Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2008/14630
GROVE J
SIMPSON J
RA HULME J
11 February 2010

Van Dieu PHAN v R

Judgment

GROVE J: This is an application for leave to appeal against severity of sentence imposed by Woods DCJ at Sydney District Court on 12 March 2009. The applicant had been committed for sentence after pleading guilty in Burwood Local Court to a charge of knowingly taking part in the cultivation of a large commercial quantity of prohibited plants grown by enhanced indoor means for which there is a maximum prescribed penalty of 20 years imprisonment with a standard non-parole period of 10 years. His Honour was asked to and took into account in sentence assessment a further charge, somewhat imprecisely formulated, in that the applicant “did use, consume, divert etc electricity” unless authorized contrary to the Electricity Supply Act 1995.
His Honour sentenced the applicant to imprisonment consisting of a non-parole period of 3 years and a balance term of 2 years.
An agreed statement of facts was put before the court for the purpose of sentence. In August 2007 premises at Condell Park were leased to a man using the name of Hung Van Nguyen. This was a false identity. On 27 September 2007 police executed a search warrant at the premises, the front door and windows of which had been fortified with iron bars. No person was in the premises at the time. There was found within a sophisticated hydroponic system being used to grow cannabis under artificial light and fed by complex irrigation lines.
A conservative street value of the crop was said to be approximately $500,000. It was found that the electricity supply monitor had been bypassed at the rear of an external switchboard.
Investigators identified the applicant’s fingerprints in two rooms of the premises including impressions on two electric transformers, which were located in one of those…

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 Phan v R

Details

AGLC: Phan v R [2010] NSWCCA 8
Case: [2010] NSWCCA 8
Decision Date: 11 February 2010

CaseChat Overview and Summary

The case of Phan v R involved a defendant who had pleaded guilty to charges related to the cultivation of a prohibited drug using enhanced indoor means. The matter was heard and determined by the court of appeal in Australia. The defendant, Phan, sought to appeal against his sentence, arguing that the sentencing judge had erred in determining the appropriate penalty for his involvement in the drug offence.

The legal issues before the court were whether the sentencing judge had erred in assessing the appropriate head sentence and non-parole period for Phan's involvement in the drug cultivation. Given Phan's limited role in the cultivation process, the court had to consider whether the sentence imposed was appropriate in light of this factor. Additionally, the court had to consider the impact of Phan's previous drug-related offending on his sentencing.

The court of appeal found no error in the sentencing judge's assessment of Phan's role in the drug cultivation. The court noted that Phan had admitted to his involvement in the offence and had pleaded guilty, which was a significant factor in determining his sentence. The court also considered Phan's previous drug-related offending and determined that this did not warrant an increase in his sentence. The court found that the head sentence and non-parole period imposed by the sentencing judge were significantly less than the standard prescription for such an offence, taking into account Phan's limited role and other relevant factors. The court of appeal ultimately found no error in the sentencing judge's assessment and upheld the sentence imposed.

The court of appeal dismissed Phan's appeal against his sentence, finding no error in the sentencing judge's assessment of the appropriate penalty for his involvement in the drug cultivation. The sentence imposed by the sentencing judge was upheld, with the court noting that the head sentence and non-parole period were significantly less than the standard prescription for such an offence.

Orders