R v Nguyen - [2006] NSWCCA 389

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
2006/2050
McCLELLAN CJ at CL
HIDDEN J
HISLOP J
MONDAY 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…

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 Nguyen

Details

AGLC: R v Nguyen [2006] NSWCCA 389
Case: [2006] NSWCCA 389
Decision Date: 4 December 2006

CaseChat Overview and Summary

This appeal concerns the sentences imposed on two respondents who were found guilty of cultivating a commercial quantity of cannabis. The Crown appealed the sentences as manifestly inadequate. The appeal was heard in the NSW Court of Criminal Appeal. The appeal concerned the adequacy of the sentences imposed on the respondents for their involvement in a large scale cannabis cultivation operation.

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

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Background

Background to the litigation

There were a number of other persons involved in this large scale criminal enterprise, some of whom have been convicted and sentenced. Although the Crown initially argued that the inadequacy of the respondents’ sentences could be identified by consideration of the sentences of these co-offenders this argument was not ultimately pursued. Accordingly, it is not necessary to record their sentences in these reasons.Brief statement of facts Around 12 April 2003 the police received information that a quantity of cannabis and a large amount of cash was being kept at premises at 2 Albion Close, Bossley Park. They were informed that the source of the cannabis was a large cultivation at an unknown location near Dubbo. Acting on this information the police obtained and executed a search warrant at 2 Albion Close, Bossley Park on 13 April 2003. The premises were occupied by the respondent Cannistra and his family. During the search the police found some cannabis leaf, and vacuum sealing equipment. No charges were laid. On 14 April 2003 the police received information that the cannabis and money had been moved to 319 Polding Street, Smithfield before the search warrant was executed at 2 Albion Close. The police obtained and executed a search warrant at 319 Polding Street, Smithfield, which were premises occupied by the respondent Ha. Those present at the time of the search were Ha and eight others, including a man named lonel (John) Simon and another Nazzereno Foti (Mimo). During the search a small quantity of cannabis was found in the house and $6,885 cash was also found. No charges were laid, but the police continued to investigate the activities of the respondents. From about October 2003, police commenced covert surveillance of the respondents. The investigative steps included obtaining telephone intercept warrants and aerial reconnaissance on 6 January 2004 of a property named "Freshfields" at Gilgandra Road, Mendorran. On 14 January 2004 police covertly entered the property and observed, photographed and video recorded images of an extensive cultivation of cannabis plants being attended to by a group workers under the direction of the respondent Cannistra. On 29 January 2004 police executed a search warrant at the property and found a plantation of over 30,000 cannabis plants estimated to be worth about $58,000,000.00 growing at three crop sites. The respondents were arrested together with other co-offenders, namely, George Kassas, Cuu Nguyen, Duong Van Nguyen, Van Huy Nguyen, Viet Quynh Truong, Quang Trung Nguyen, Bao Nguyen, Dinh Van Do, Dinh Them Nguyen. The materials uncovered by the investigation disclosed that the extensive cultivation detected by police in January 2004 was the second of two cultivations. The first having been cultivated from about August 2002 and harvested by May 2003 (Form 1 matter).Subjective Features of the respondents: The respondent Cannistra was born in late October of 1941 and, when sentenced, was approaching his 65th birthday. He arrived in Australia in 1962. Despite his apparent relationship with Ha Nguyen, it seems that he still had the support of his wife and family. His wife has suffered and continues to suffer from serious physical ailments.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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