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 215Category: Sentence Parties: Director of Public Prosecutions - Crown
Cong Minh Dinh - OffenderRepresentation: Counsel:
Solicitors:
Mr Stewart - Offender
Director of Public Prosecutions – Crown
File Number(s): 2015/192239
Judgment
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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.
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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.
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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.
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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.
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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.…
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- AGLC
- R v Dinh [2016] NSWDC 131
- Case
- [2016] NSWDC 131
- Decision Date
CaseChat Overview and Summary
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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