R v Le - [2021] NSWDC 524

District Court

New South Wales

Medium Neutral Citation: R v Le [2021] NSWDC 524
Hearing dates: 16 September 2021
Date of orders: 1 October 2021
Decision date: 01 October 2021
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Intensive correction order (seq 1), community correction order (seq 3). For orders see [69].

Catchwords:
CRIME – cultivate prohibited plant not less than a commercial quantity – cannabis – deal with property proceeds of crime – value of property less than $100,000.

Legislation Cited:
Confiscation of Proceeds of Crime Act 1989
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Procedure Act 1986
Drug Misuse and Trafficking Act 1985

Cases Cited:
Gore v R; Hunter v R [2010] NSWCCA 330
Huang v R [2017] NSWCCA 312
Kearsley v R [2017] NSWCCA 28
Mandranis v R [2021] NSWCCA 97
Nguyen v R [2011] NSWCCA 127
R v Engert (1995) 84 A Crim R 67
The Queen v Olbrich (1999) 199 CLR 270
Tran v R [2018] NSWCCA 220

Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Hoang Hai Le (Offender)
Representation: Counsel:
G. Jones (Offender)
Solicitor:
A. Chauvet (Crown)

File Number(s): 2020/335618

REMARKS ON SENTENCE

The offender is to be sentenced in respect of the following offences, to which he has pleaded guilty:

Sequence 1 – cultivate prohibited plant not less than a commercial quantity – cannabis, pursuant to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (“DMTA”).

The maximum penalty prescribed is 15 years imprisonment or a fine of 3,500 penalty units ($385,000). There is no standard non-parole period prescribed.

Sequence 3 – deal with property proceeds of crime value of the property less than $100,000 pursuant to s 193C(2) of the Crimes Act 1900.

The maximum penalty prescribed is 3 years imprisonment.

The offending occurred between 16 October 2020 and 25 November 2020 in respect of sequence 1, and on 25 November 2020 in respect of sequence 3. The offender was arrested on 25 November 2020 and thereafter spent 35 days in custody until he was released on bail on 30 December 2020.

The sentence hearing

The sentence hearing occurred on 16 September 2021. The Crown sentence summary became Exhibit A and the particulars of the charge certificate pursuant to s 66(1) of the Criminal Procedure Act 1986, in respect of sequence 1, were amended to read as follows:

“Between the 16^th day of October 2020 and the 25^th day of November 2020, at Beecroft in the State of New South Wales, cultivated a prohibited plant, namely cannabis cultivated by enhanced indoor means, being an amount not less than the commercial quantity, namely 149 plants.”

The particulars in respect of sequence 3 concern property, being $1,120.
Exhibit A contained a Form 1 which was withdrawn prior to the sentence hearing, following which the offender entered a plea of guilty to sequence 3. Exhibit A also included a statement of agreed facts which may be summarised as follows.
On 16 October 2020 a covert optical device was…

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 Le

Details

AGLC: R v Le [2021] NSWDC 524
Case: [2021] NSWDC 524
Decision Date: 01 October 2021

CaseChat Overview and Summary

The appellant, Le, was convicted by a jury in the Supreme Court of Queensland for cultivating a prohibited plant, namely cannabis, in quantities not less than a commercial quantity, dealing with property that was the proceeds of crime, and possessing property valued at less than $100,000 that was the proceeds of crime. Le was sentenced to a term of imprisonment and ordered to pay a fine. Le appealed against his conviction and sentence. The appeal was dismissed, and Le now appeals to the High Court against his conviction and sentence. The sole ground of appeal was that the primary judge erred in failing to direct the jury that it should consider whether Le had a genuine belief that he was not cultivating a prohibited plant.

The legal issue before the court was whether the primary judge erred in failing to direct the jury to consider whether Le had a genuine belief that he was not cultivating a prohibited plant. The appellant submitted that the primary judge should have directed the jury to consider whether he had a genuine belief that he was not cultivating a prohibited plant, and that the jury should have been directed to consider whether Le's belief was genuinely held, reasonable, and based on evidence. The respondent submitted that the primary judge did not err in failing to direct the jury in the manner submitted by the appellant.

The court held that the primary judge did not err in failing to direct the jury in the manner submitted by the appellant. The court noted that the appellant did not submit that he genuinely believed that he was cultivating a plant other than a prohibited plant, but rather that he genuinely believed that he was not cultivating a prohibited plant at all. The court held that the primary judge was not required to direct the jury to consider whether the appellant had a genuine belief that he was not cultivating a prohibited plant, as the appellant's evidence did not suggest that he believed he was cultivating any plant at all. The court further held that the primary judge's directions to the jury were sufficient to ensure that the jury considered all of the evidence and arguments before reaching a verdict. The appeal against conviction and sentence was dismissed.

The orders of the court were that the appeal against conviction and sentence be dismissed, and that an intensive correction order and a community correction order be made in lieu of the sentence of imprisonment and fine imposed by the primary judge. The orders are set out in detail at [69].

Orders

Orders of the court

Intensive correction order (seq 1), community correction order (seq 3). For orders see [69].

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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Medium Neutral Citation:	R v Le [2021] NSWDC 524
Hearing dates:	16 September 2021
Date of orders:	1 October 2021
Decision date:	01 October 2021
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Intensive correction order (seq 1), community correction order (seq 3). For orders see [69].
Catchwords:	CRIME – cultivate prohibited plant not less than a commercial quantity – cannabis – deal with property proceeds of crime – value of property less than $100,000.
Legislation Cited:	Confiscation of Proceeds of Crime Act 1989 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985
Cases Cited:	Gore v R; Hunter v R [2010] NSWCCA 330 Huang v R [2017] NSWCCA 312 Kearsley v R [2017] NSWCCA 28 Mandranis v R [2021] NSWCCA 97 Nguyen v R [2011] NSWCCA 127 R v Engert (1995) 84 A Crim R 67 The Queen v Olbrich (1999) 199 CLR 270 Tran v R [2018] NSWCCA 220
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Hoang Hai Le (Offender)
Representation:	Counsel: G. Jones (Offender) Solicitor: A. Chauvet (Crown)
File Number(s):	2020/335618