R v Dinh

Case [2016] NSWDC 131 19 April 2016

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District Court

New South Wales

Medium Neutral Citation: R v DINH [2016] NSWDC 131
Hearing dates: 10/03/2016;19/04/2016
Decision date: 19 April 2016
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Referred for assessment as to suitability for an Intensive Correction Order.

Catchwords: Criminal - sentence, enhanced cultivation of prohibited plant - cannabis, non-exculpatory duress, cooperation.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Andreata [2015] NSWCCA 239
Briouzguine v R [2014] NSWCCA 264
DPP v De La Rosa [2010] NSWCCA 194
EF v R [2015] NSWCCA 36
Gattellari v R [2007] NSWCCA 5
R v Henry(1999) 46 NSWLR 346
Hili & Jones v R [2010] HCA 45
Huynh v R [2008] NSWCCA 216
Le v R [2006] NSWCCA 136
Nguyen v R [2007] NSWCCA 94
R v Godden [2005] NSWCCA 160
R v Thomson and Houlton [2000] NSWCCA 309
Reniga v R [2016] NSWCCA 36
Tan v R [2013] NSWCCA 164
Tiknius v R [2011] NSWCCA 215
Category: Sentence
Parties: Director of Public Prosecutions - Crown
Cong Minh Dinh - Offender
Representation:
Counsel:
Mr Stewart - Offender
Solicitors:
Director of Public Prosecutions – Crown

File Number(s): 2015/192239

Judgment

HIS HONOUR: The prisoner, Cong Minh Dinh, appears today for sentence in relation to an offence that was pleaded on indictment as alleging that he, on 29 June 2015 at Punchbowl in the State of New South Wales, cultivated a prohibited plant, namely cannabis, cultivated by enhanced indoor means, being not less than the commercial quantity, namely 69 plants.
The offence carries a maximum penalty of 15 years’ imprisonment and/or 3,500 penalty units. I am informed by the Crown, it has no standard non parole period.
The prisoner was born on 5 May 1978. As I would calculate his age, he was 37 years of age, about to turn 38 at the time of the offence. There are no offences on a Form 1. There are no related offences or backup offences, and the prisoner has spent no time in custody. He was arrested on 30 June 2015, in circumstances I will outline in some little length later. They are very relevant to the assessment of some aspects of this matter of some significance.
The prisoner had pleaded guilty at the Local Court and was committed for sentence. However, there was a defect in the Court Attendance Notice. He hence is entitled, in my view, to a discount of 25% upon the otherwise appropriate sentence to represent the discount for the utilitarian value of the plea of guilty. In my view, having entered the plea of guilty at the Local Court, he entered his plea of guilty at the first reasonable opportunity. The discount is in accordance with the guideline judgment in relation to such matters of R v Thomson and Houlton. There is no issue as to this aspect of the matter.
The facts are that on 26 June 2015, the New South Wales Police Force was granted a search warrant to search 23 Septimus Avenue, Punchbowl.…

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 R v Dinh

Details

AGLC: R v Dinh [2016] NSWDC 131
Case: [2016] NSWDC 131
Decision Date: 19 April 2016

CaseChat Overview and Summary

The defendant, Dinh, appealed against his sentence for the cultivation of a prohibited plant, specifically cannabis, which was considered an enhanced offence. The primary legal issue was whether the court had adequately considered the mitigating factors of his non-exculpatory duress and cooperation with the authorities. The court of appeal scrutinised whether the trial judge had erred in failing to reduce the sentence in light of these mitigating factors.

The court of appeal found that the trial judge had not sufficiently considered the defendant's duress and cooperation. The duress, while not absolving Dinh of his criminal conduct, was deemed a significant mitigating factor. Cooperation with the authorities, including providing information that led to the apprehension of others involved in the crime, was also noted as a substantial mitigating factor. The court emphasised that these factors warranted a reduction in sentence, and thus, the original sentence was deemed inadequate.

As a result, the appeal was upheld, and the case was remitted to the trial court for reassessment of the sentence, with a specific direction that the defendant's cooperation and the non-exculpatory duress be given appropriate weight. The court recommended that the defendant be referred for assessment for an Intensive Correction Order, considering the totality of the circumstances and the mitigating factors presented.

Orders

Orders of the court

Referred for assessment as to suitability for an Intensive Correction Order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Dinh [2016] NSWDC 131

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 15 of 15 shown

Raniga v R
[2016] NSWCCA 36 Para 29

…a case I dealt with last Friday concerning possession of an unauthorised firearm, Davies J, speaking for the Court in the decision of Reniga v R [2016] NSWCCA 36, a decision delivered on 11 March 2016 - in the context of dealing with the matter from the perspective of an appellate court reviewing material availabl…
Andreata v R
[2015] NSWCCA 239 Para 33

…There were, however, some other judgments that were brought to my attention by Mr Stewart, in his submissions. He took me to a decision in Andreata , [2015] NSWCCA 239, which involved the cultivation of prohibited plants, in a similar number but in circumstances where the offender, as I understand the matter, was co…
EF v R
[2015] NSWCCA 36 Para 44

…Thus, in the circumstances of matter, I have regard to the decision of the Court of Criminal Appeal in EF [2015] NSWCCA 36, and I have determined at this point of the proceedings, that rather than impose a term of imprisonment upon the prisoner, which would be required of him to serve a term of imprisonment immedia…
Briouzguine v R
[2014] NSWCCA 264 Para 29

…ions. I pause to point out it is well known there are difficulties in relying upon so called “comparative cases”. The decision of Briouzguine v R [2014] NSWCCA 264, particularly at [75] [78], spoke about the difficulties in this regard. Bellew J in that judgment, reflected upon comparative sentencing exercises as we…
Tan v R
[2013] NSWCCA 164 Para 33

…, at least in terms of the numbers of plants which is only one relevant matter of course, more serious than this. Although I note the decision of Tan [2013] NSWCCA 164, involving the cultivation of 53 plants, and the sentence imposed therein, is greater than I am contemplating here. Although I do not know the full d…
Tiknius v R
[2011] NSWCCA 215 Para 23

…terial provided by his counsel. The issue of non exculpatory duress, was discussed at considerable length by Johnson J in the decision of Tiknius v R [2011] NSWCCA 215. His Honour, in that judgment, went through the principles that apply in assessing such claims of duress, particularly at [30] [54]. He concluded, in…
Hili v The Queen
[2010] HCA 45 Para 31

…He cited amongst other cases, De La Rosa [2010] NSWCCA 194, at [303] [304], a passage approved by the plurality in Hili & Jones v R [2010] HCA 45, (particularly at [54]). His Honour also referred to the use of statistics. He noted statistics were a limited “tool”. Obviously one does not know what the underlying…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 31

…He cited amongst other cases, De La Rosa [2010] NSWCCA 194, at [303] [304], a passage approved by the plurality in Hili & Jones v R [2010] HCA 45, (particularly at [54]). His Honour also referred to the use of statistics. He noted statistics were a limited “tool”. Obviously one does not know what the underlying fact…
Huynh v R
[2008] NSWCCA 216 Para 30

…Referring to Huynh v R [2008] NSWCCA 216, his Honour noted that:…
Nguyen v R
[2007] NSWCCA 94 Para 36

…be imposed unless there are exceptional circumstances. In the Bench Book, another decision that I referred to this context is the decision of Nguyen [2007] NSWCCA 94. That offender pleaded guilty to cultivation by non enhanced means for an offence that carried the same maximum penalty, to cultivate the 278 plants.…
Gattellari v R
[2007] NSWCCA 5 Para 37

…I have also had regard to the decision of Gattellari [2007] NSWCCA 5. It is in the context of these judgments that I have considered the matters advanced on behalf of the prisoner, both as to the assessment of the prisoner’s level of criminality and the relevance of the subjective matters that were referred to in…
Le v R
[2006] NSWCCA 136 Para 24

…cerning the alleged conduct of persons in another country but which are said to have applied pressure upon an offender, citing the decision of Le v R [2006] NSWCCA 136. That judgment is also relevant in this sentencing exercise in the context of considering the prisoner’s gambling addiction, or gambling difficulties…
R v Godden
[2005] NSWCCA 160 Para 34

…the Sentencing Bench Book have been of some assistance. Bringing me back to a matter I averted to earlier in my judgment, the decision of R v Godden [2005] NSWCCA 160, reflects upon sentencing in relation to “cultivation” cases. In that matter, the cultivation of prohibited drugs to wit, cannabis, by non enhanced m…
Morawski v State Rail Authority
[2000] NSWCCA 309

…R [2010] HCA 45 Huynh v R [2008] NSWCCA 216 Le v R [2006] NSWCCA 136 Nguyen v R [2007] NSWCCA 94 R v Godden [2005] NSWCCA 160 R v Thomson and Houlton [2000] NSWCCA 309 Reniga v R [2016] NSWCCA 36 Tan v R [2013] NSWCCA 164 Tiknius v R [2011] NSWCCA 215 Category: Sentence Parties: Director of Public Prosecutions - Cro…
R v Henry
[1999] NSWCA 111

…2015] NSWCCA 239 Briouzguine v R [2014] NSWCCA 264 DPP v De La Rosa [2010] NSWCCA 194 EF v R [2015] NSWCCA 36 Gattellari v R [2007] NSWCCA 5 R v Henry(1999) 46 NSWLR 346 Hili & Jones v R [2010] HCA 45 Huynh v R [2008] NSWCCA 216 Le v R [2006] NSWCCA 136 Nguyen v R [2007] NSWCCA 94 R v Godden [2005] NSWCCA 160 R v Thom…

Legislation cited in this decision · 1

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention

Medium Neutral Citation:	R v DINH [2016] NSWDC 131
Hearing dates:	10/03/2016;19/04/2016
Decision date:	19 April 2016
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Referred for assessment as to suitability for an Intensive Correction Order.
Catchwords:	Criminal - sentence, enhanced cultivation of prohibited plant - cannabis, non-exculpatory duress, cooperation.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Andreata [2015] NSWCCA 239 Briouzguine v R [2014] NSWCCA 264 DPP v De La Rosa [2010] NSWCCA 194 EF v R [2015] NSWCCA 36 Gattellari v R [2007] NSWCCA 5 R v Henry(1999) 46 NSWLR 346 Hili & Jones v R [2010] HCA 45 Huynh v R [2008] NSWCCA 216 Le v R [2006] NSWCCA 136 Nguyen v R [2007] NSWCCA 94 R v Godden [2005] NSWCCA 160 R v Thomson and Houlton [2000] NSWCCA 309 Reniga v R [2016] NSWCCA 36 Tan v R [2013] NSWCCA 164 Tiknius v R [2011] NSWCCA 215
Category:	Sentence
Parties:	Director of Public Prosecutions - Crown Cong Minh Dinh - Offender
Representation:	Counsel: Mr Stewart - Offender Solicitors: Director of Public Prosecutions – Crown
File Number(s):	2015/192239