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Phan v The Queen

Phan v The Queen

Case [2020] NSWCCA 168 23 July 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Phan v R [2020] NSWCCA 168
Hearing dates: 15 June 2020
Decision date: 23 July 2020
Before: Hoeben CJ at CL at [1];
Rothman J at [79];
Fagan J at [83]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.

Catchwords:
CRIMINAL LAW – sentence appeal – two offences – knowingly take part in the cultivation of not less than a commercial quantity of prohibited plants and knowingly take part in the cultivation of not less than a large commercial quantity of prohibited plants – offence of participate in a criminal group on a Form 1 – aggregate sentence imposed of 5 years and 6 months with a non-parole period of 3 years and 6 months – challenge to assessment of objective seriousness of offences – whether parity principle breached – whether aggregate sentence manifestly excessive – error in assessment of objective seriousness – need to resentence – no lesser sentence warranted in law.

Legislation Cited:
Crimes Act 1900 (NSW) – s 93T(1)
Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 3A, 21A, 22
Drug Misuse and Trafficking Act 1985 (NSW) – s 23(2)(a)
Electricity Supply Act 1995 (NSW) – s 64(1)

Cases Cited:
Downes v R [2020] NSWCCA 167
Fenech v R [2018] NSWCCA 160
Gill v R [2010] NSWCCA 236
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Kay v R [2019] NSWCCA 275
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v Barri [2004] NSWCCA 221
R v Qutami [2001] NSWCCA 353
Tepania v R [2018] NSWCCA 247
Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category: Principal judgment
Parties: Vinc Khac Phan – Applicant
Regina – Respondent Crown
Representation:
Counsel:
G R James AM QC – Applicant
D Patch – Respondent Crown
Solicitors:
Greenfield Lawyers – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2018/20427
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

2 October 2019

Before:

Bennett SC DCJ

File Number(s):

2018/20427

JUDGMENT

HOEBEN CJ at CL:

Offences and sentence

The applicant pleaded guilty to two charges in the Parramatta Local Court on 16 May 2019 and asked that a further charge on a Form 1 be taken into account.

Sequence 5 – knowingly take part in the cultivation of not less than a commercial quantity of prohibited plants, namely 165 cannabis plants, by enhanced indoor means at Carlingford between 20 August 2017 and 5 December 2017, contrary to the Drug Misuse and Trafficking Act 1985 (NSW) – s 23(2)(a) for which the maximum penalty is imprisonment for 15 years.

Sequence 6 – knowingly take part in the cultivation of not less than a large commercial quantity of prohibited plants, namely 288 cannabis plants, by enhanced indoor means…

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 The Queen

Details

AGLC: Phan v The Queen [2020] NSWCCA 168
Case: [2020] NSWCCA 168
Decision Date: 23 July 2020

CaseChat Overview and Summary

In the case of Phan v The Queen, the appellant, Phan, was convicted for his involvement in the cultivation of commercial quantities of prohibited plants and for participating in a criminal group. The case was heard and determined by the High Court of Australia, which was called upon to review the sentence imposed on the appellant. The appeal focused on the aggregate sentence of 5 years and 6 months, with a non-parole period of 3 years and 6 months, which Phan argued was manifestly excessive and breached the parity principle.

The primary legal issue before the court was whether the aggregate sentence imposed was manifestly excessive, given the court's assessment of the objective seriousness of the offences. The court was also tasked with determining if there had been an error in the assessment of the objective seriousness of the offences, which could warrant a re-sentencing. Furthermore, the court needed to consider if there was any lesser sentence that was warranted in law.

The court held that while there was an error in the assessment of the objective seriousness of the offences, the aggregate sentence was not manifestly excessive. The court emphasised that the sentence imposed was within the range that could be considered appropriate for the nature and circumstances of the offences. The court found no breach of the parity principle and concluded that no lesser sentence was warranted in law. Consequently, the appeal was dismissed, and the original sentence was upheld.

The final orders of the court were to dismiss the appeal, confirming the sentence imposed by the lower court as appropriate and legally justified.

Orders