NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: REGINA v NGUYEN REGINA v CANNISTRA [2006] NSWCCA 389
FILE NUMBER(S):
2006/2044
2006/2050
HEARING DATE(S): 16 November 2006
DECISION DATE: 04/12/2006
PARTIES:
The Crown (Appl)
Thi Ha Nguyen (Resp)
Vincenzo Cannistra (Resp)
JUDGMENT OF: McClellan CJ at CL Hidden J Hislop J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 04/11/1380
LOWER COURT JUDICIAL OFFICER: Nicholson DCJ
COUNSEL:
J Dwyer (Crown/Appl)
J Stratton SC (Resp - Nguyen)
D T Spears (Resp - Cannistra)
SOLICITORS:
Director of Public Prosecutions (Crown)
David H Cohen & Co (Resp - Nguyen)
Patricia White & Associates (Resp - Cannistra)
CATCHWORDS:
CRIMINAL LAW
CROWN APPEAL
CULTIVATE PROHIBITED DRUG
large commercial quantity
cannabis
manifestly inadequate
relevance of sentences imposed on co-offenders
role in the cultivation
degree of control
expectation of profit
mind of the enterprise
role in recruitment
assistance to authorities
offences on Form 1
whether starting point of sentences refected objective criminality
LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985 (NSW)
DECISION:
2006/2050 - CANNISTRA
1. Crown appeal upheld
2. Quash the sentence imposed in lieu thereof impose the following sentence: (i) a non-parole period of five years and ten months to commence on 29 January 2004 and to expire on 28 November 2009 with a balance of term of three years and two months to expire 28 January 2013 2006/2044: NGUYEN 1. Appeal is dismissed.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
2006/2044
2006/2050McCLELLAN CJ at CL
HIDDEN J
HISLOP JMONDAY 4 DECEMBER 2006
REGINA v NGUYEN, Thi Ha
REGINA v CANNISTRA, Vincenzo
Judgment
McCLELLAN CJ at CL: The respondents, Vincenzo Cannistra and Thi Ha Nguyen ("Ha") each pleaded guilt to one count of knowingly taking part in the cultivation of 30,051 cannabis plants, which was not less than the large commercial quantity, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for this offence is imprisonment for 20 years or a fine of 5,000 penalty units or both (s 33(3)(b) of the Drug Misuse and Trafficking Act 1985 (NSW). The pleas were entered on 5 July 2005 the day after the day listed for trial.
Each of the respondents asked the court to take into account a further offence included on a Form 1 of cultivating a large commercial quantity of cannabis. That offence was committed at the same location between 22 August 2002 and 1 May 2003.
On 30 June 2006, after taking into account the Form 1 matter, the sentencing judge sentenced the respondent Cannistra to a non-parole period of 4 years and 9 months to commence on 29 January 2004 and to expire on 28 October 2008 with a balance of term of 2 years and 6 months to expire on 28 April 2011.
His Honour, after taking into account the Form 1 matter, sentenced the respondent Ha to a non-parole period of 5 years and 2 months to commence on 29 January 2004 and to expire on 28 March 2009 with…
Continue reading R v Nguyen
Sign in free to access the full text
- AGLC
- R v Nguyen [2006] NSWCCA 389
- Case
- [2006] NSWCCA 389
- Decision Date
CaseChat Overview and Summary
The central issue before the court was whether the sentences imposed on the respondents were manifestly inadequate. The Crown submitted that the sentences should reflect the objective criminality of the offences, which involved the cultivation of a substantial commercial quantity of cannabis. The respondents argued that various mitigating factors should be taken into account in determining the appropriate sentence, including the respondents' roles in the cultivation, their degree of control over the operation, their expectation of profit, and their cooperation with the authorities.
The court found that the sentences imposed on the respondents were manifestly inadequate. The court noted that the cultivation operation was large in scale and involved a significant commercial quantity of cannabis. The court also noted that the respondents had played significant roles in the operation, with one respondent directing the cultivation and the other providing logistical support. The court found that the sentences did not adequately reflect the objective criminality of the offences and imposed new sentences of imprisonment. The court ordered that the new sentences be backdated to the dates of the respondents' original sentences.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: CLELLAN CJ
Full text does not contain this section.