R v Nguyen, Andy - [2009] NSWDC 390

CITATION: R v Nguyen, Andy [2009] NSWDC 390

HEARING DATE(S): 09/10/2009

JUDGMENT DATE:
13 November 2009

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: 1. Cultivate Prohibited Plant:
Convicted.
Sentenced non-parole period 16 months and 15 days. Balance of term 15 months.
S.166 matters:
1. Possess prohibited drug:
Convicted.
Sentence 4 months fixed term.
2. Organise or conducts or assist in organising or conducting drug premises first offence:
Application on behalf of the Crown to withdraw the charge granted.
3. Use/consume/waste etc electricity without authority:
Convicted.
Sentence 4 months fixed term.

CATCHWORDS: Criminal Law - sentencing - cultivate prohibited drug - 97 plants - electricity supply by-passed meter - distinguish between crops actual value and potential value - cultivation for financial gain - gambler - indebted to money lender - cultivation required by money lender as condition of continued loan - claim rejected in part - dangers of cannabis consumption - reasonable subjective circumstances - early guilty plea.

LEGISLATION CITED: Criminal Procedure Act 1986

CASES CITED: Pham v The Queen (2009) NSWCCA 266
Mack v The Queen (2009) NSWCCA 216
Nguyen v The Queen (2009) NSWCCA 181
R v Van Cuong Nguyen (2008) NSWCCA 322

PARTIES: Regina
Andy Nguyen

COUNSEL: Defence: G. Jones

SOLICITORS: Crown: Ms R Swift

1. On 5 May 2009 police executed a search warrant on a premises at Byrne Street, South Granville. These were premises leased by Andy Nguyen for $300 per week. The search uncovered a small but sophisticated hydroponic set-up harnessed for cultivation of marijuana plants. Four of the rooms with nine or ten high powered globes housed half metre shades and varying numbers of cannabis plants. In total there were ninety-seven plants being cultivated. Also seized were; four power boards, thirty-five electrical transformers, five carbon filters, ten pedestal fans. Five of the plants were fifteen centimetres high, the remaining ninety-two were approximately one metre in length.

2. There was evidence indicative of a recently harvested crop. There were also a number of juvenile plants in the process of cultivating as though for future stock and there was eighty grams of cannabis secured in the fridge.

3. Today Andy Nguyen is to be held accountable for his criminal conduct in cultivating those ninety-seven plants and other S166 Criminal Procedure Act matters that arise from that cultivation. As sentencing judge it falls to me to determine the appropriate sentence for this criminality before this community by this offender.

4. The premises at Byrne Street were apparently heavily fortified with steel bars and shutters. The premises were rented. There is nothing in the evidence before me that establishes that this offender erected or caused to be erected the steel bars and shutters; nor that it was a deal maker in his selection of these premises to lease. In my view the state of the exterior of the premises will not add or detract from the criminality involved in the cultivation. It presents simply as a neutral.

5. The offender readily admitted watering and growing the ninety-seven…

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, Andy

Details

AGLC: R v Nguyen, Andy [2009] NSWDC 390
Case: [2009] NSWDC 390
Decision Date: 13 November 2009

CaseChat Overview and Summary

The appellant, Andy Nguyen, was convicted in the County Court of Victoria for cultivating a prohibited plant, possessing a prohibited drug, organising or conducting drug premises, and using or consuming electricity without authority. The appeal was against his sentence. The County Court found that the appellant cultivated 97 cannabis plants, bypassed the electricity meter to supply power to the grow room, and possessed a prohibited drug. The appellant argued that he cultivated the cannabis to repay a debt to a moneylender, which the trial judge rejected as a mitigating factor. The Court of Appeal considered whether the appellant's actual or potential value of the cannabis crop should be used to determine the seriousness of the offending and whether the early guilty plea was properly taken into account.

The primary issue before the Court of Appeal was whether the actual value or potential value of the cannabis crop should be used to assess the seriousness of the cultivation offence. The Court of Appeal held that the potential value of the cannabis crop should be used as it was the more accurate measure of the seriousness of the offending. The Court also found that the early guilty plea was properly taken into account by the trial judge. The Court of Appeal found that the sentence imposed by the trial judge was appropriate, taking into account the seriousness of the offending, the appellant's lack of a criminal record, and his early guilty plea.

The Court of Appeal dismissed the appeal against sentence. The appellant was convicted of cultivating a prohibited plant, possessing a prohibited drug, and using or consuming electricity without authority. The sentence for cultivating a prohibited plant was a non-parole period of 16 months and 15 days, with the balance of the term being 15 months. The sentence for possessing a prohibited drug was a fixed term of 4 months. The charge of organising or conducting drug premises was withdrawn by the Crown. The sentence for using or consuming electricity without authority was a fixed term of 4 months. The appellant was also ordered to pay a fine and a victim surcharge.

Orders

Orders of the court

1. Cultivate Prohibited Plant:

Convicted.

Sentenced non-parole period 16 months and 15 days. Balance of term 15 months.

S.166 matters:

1. Possess prohibited drug:

Convicted.

Sentence 4 months fixed term.

2. Organise or conducts or assist in organising or conducting drug premises first offence:

Application on behalf of the Crown to withdraw the charge granted.

3. Use/consume/waste etc electricity without authority:

Convicted.

Sentence 4 months fixed term.

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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CITATION:	R v Nguyen, Andy [2009] NSWDC 390
HEARING DATE(S):	09/10/2009
JUDGMENT DATE:	13 November 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	1. Cultivate Prohibited Plant: Convicted. Sentenced non-parole period 16 months and 15 days. Balance of term 15 months. S.166 matters: 1. Possess prohibited drug: Convicted. Sentence 4 months fixed term. 2. Organise or conducts or assist in organising or conducting drug premises first offence: Application on behalf of the Crown to withdraw the charge granted. 3. Use/consume/waste etc electricity without authority: Convicted. Sentence 4 months fixed term.
CATCHWORDS:	Criminal Law - sentencing - cultivate prohibited drug - 97 plants - electricity supply by-passed meter - distinguish between crops actual value and potential value - cultivation for financial gain - gambler - indebted to money lender - cultivation required by money lender as condition of continued loan - claim rejected in part - dangers of cannabis consumption - reasonable subjective circumstances - early guilty plea.
LEGISLATION CITED:	Criminal Procedure Act 1986
CASES CITED:	Pham v The Queen (2009) NSWCCA 266 Mack v The Queen (2009) NSWCCA 216 Nguyen v The Queen (2009) NSWCCA 181 R v Van Cuong Nguyen (2008) NSWCCA 322
PARTIES:	Regina Andy Nguyen
COUNSEL:	Defence: G. Jones
SOLICITORS:	Crown: Ms R Swift