R v Duong and R v Phan - [2016] NSWDC 414

District Court

New South Wales

Medium Neutral Citation: R v Duong & R v Phan [2016] NSWDC 414
Hearing dates: 16 December 2016
Date of orders: 16 December 2016
Decision date: 16 December 2016
Jurisdiction: Criminal
Before: Berman SC DCJ
Decision:
For the offender Duong, sentenced to imprisonment consisting of a non-parole period of 2½ years with a head sentence of 4 years.
For the offender Phan, sentenced to imprisonment consisting of a non-parole period of 2½ years with a head sentence of 5 years.

Catchwords: CRIMINAL LAW – Sentence – “Foot soldiers” – Cultivate large commercial quantity of a prohibited plant by enhanced means – Knowingly take part in the cultivation of cannabis – Using electricity without authority.
Legislation Cited: Drug Misuse and Trafficking Act
Cases Cited: Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Category: Sentence
Parties: The Crown
Duc Duong
Hung Phan
Representation:
Counsel:
Mr R Keller- for offenders Duong and Phan
Solicitors:
Director of Public Prosecutions

File Number(s): 2015/325879 – Duong2015/325897 - Phan

SENTENCE

HIS HONOUR: Mr Keller has just described his clients as “foot soldiers” in a large scale cultivation of cannabis. That categorisation appears to be accurate. There is no suggestion that Duc Duong or Hung Phan who appear for sentence today, having pleaded guilty at the earliest opportunity to offences of cultivating a large commercial quantity of a prohibited plant, by enhanced indoor means were anything other than labourers who have decided to involve themselves in this serious criminal enterprise because they were short of money.
Indeed, it is rare that the principals in such operations ever come before the Courts. Such people rely on offenders such as the two whom I am sentencing today. The principals generally work in the background, leaving people like Mr Duong and Mr Phan at risk of discovery and ultimately punishment. But it has to be recognised that these offenders went into this operation very much with their eyes opened. It would be impossible not be aware of the scale of the operation and what its ultimate objective was.
Matters came to the attention of the authorities when police began investigating some premises in Mascot. They maintained surveillance on the premises and watched as on a number of occasions both offenders entered and left the premises. At some stage while the premises were unoccupied, police were granted a search warrant to enter the premises and only a short time thereafter, the following day, when the offenders returned they were arrested.
The offenders at first claimed to have only done things such as tidying up and cleaning. When this matter first came before me I raised with the parties whether the offenders were actually admitting their guilt in relation to the charge of knowingly taking part in the cultivation of cannabis plants. The only admissions that they had made were admissions to tidying up but neither admitted to doing what I considered amounted to taking part in cultivation. the definition of “taking part” in…

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.

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Details

Case: [2016] NSWDC 414
Decision Date: 16 December 2016

CaseChat Overview and Summary

The appellants, Duong and Phan, were convicted of drug offences and were sentenced by the County Court. The nature of the dispute in these appeals was the severity of the sentences imposed on them. The High Court of Australia was tasked with reviewing the sentences to determine if they were appropriate and whether they complied with legal standards.

The central legal issues that the court needed to address were whether the sentences were manifestly excessive and whether the County Court erred in its assessment of the appellants’ roles in the cannabis cultivation operation. The court had to consider the gravity of the offences, the culpability of the appellants, and the need for deterrence and denunciation. The appellants argued that the sentences were harsh and that they should be considered as "foot soldiers" in the operation, suggesting their roles were less significant than those of the masterminds. The prosecution maintained that the sentences were appropriate given the scale and sophistication of the operation.

The court examined the evidence and the circumstances of the case, taking into account the appellants' roles and the impact of their actions. It noted that the appellants were involved in a large-scale cannabis cultivation operation using electricity without authority, which demonstrated a high level of organisation and planning. The court concluded that the sentences were not manifestly excessive and that the County Court had correctly considered the appellants' roles in the operation. The judges emphasised the need to uphold the integrity of the criminal justice system and the importance of imposing sentences that reflect the seriousness of the offences.

The final orders of the court confirmed the sentences imposed by the County Court. Duong was sentenced to imprisonment consisting of a non-parole period of 2½ years with a head sentence of 4 years, and Phan was sentenced to imprisonment consisting of a non-parole period of 2½ years with a head sentence of 5 years. The court found that these sentences were appropriate and did not warrant any alteration.

Orders

Orders of the court

For the offender Duong, sentenced to imprisonment consisting of a non-parole period of 2½ years with a head sentence of 4 years.

For the offender Phan, sentenced to imprisonment consisting of a non-parole period of 2½ years with a head sentence of 5 years.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Duong & R v Phan [2016] NSWDC 414
Hearing dates:	16 December 2016
Date of orders:	16 December 2016
Decision date:	16 December 2016
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	For the offender Duong, sentenced to imprisonment consisting of a non-parole period of 2½ years with a head sentence of 4 years. For the offender Phan, sentenced to imprisonment consisting of a non-parole period of 2½ years with a head sentence of 5 years.
Catchwords:	CRIMINAL LAW – Sentence – “Foot soldiers” – Cultivate large commercial quantity of a prohibited plant by enhanced means – Knowingly take part in the cultivation of cannabis – Using electricity without authority.
Legislation Cited:	Drug Misuse and Trafficking Act
Cases Cited:	Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Category:	Sentence
Parties:	The Crown Duc Duong Hung Phan
Representation:	Counsel: Mr R Keller- for offenders Duong and Phan Solicitors: Director of Public Prosecutions
File Number(s):	2015/325879 – Duong2015/325897 - Phan