R v Phan - [2019] NSWDC 601

District Court

New South Wales

Medium Neutral Citation: R v Phan [2019] NSWDC 601
Hearing dates: 02 October 2019
Date of orders: 02 October 2019
Decision date: 02 October 2019
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Aggregate term of imprisonment of 5 years 6 months with a non-parole period of 3 years 6 months

Catchwords: CRIME — Drug offences — Cultivate prohibited plant — Knowingly take part in cultivation
SENTENCING — Relevant factors on sentence — Form 1 offences
SENTENCING — Relevant factors on sentence — General principles
SENTENCING — Relevant factors on sentence — Multiple offences
SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences
SENTENCING — Relevant factors on sentence — Objective seriousness
SENTENCING — Sentencing procedure — Reasons for sentence
SENTENCING — Subjective considerations on sentence — Special circumstances
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Cases Cited: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
Markarian v R [2005] HCA 25
Muldrock v The Queen [2011] HCA 39
R v Qutami [2001] NSWCCA 353
Tepania v The Queen [2018] NSWCCA 247
Category: Sentence
Parties: Regina (Crown)
Vinc Khac Phan (Offender)
Representation:
Matthew Dickinson (Crown)
Michael Fokkes (counsel) (Offender)
Director of Public Prosecutions (NSW) (Crown)

File Number(s): 2018/00020427

EX TEMPORE REVISED JUDGEMENT

Vinc Khac Phan pleaded guilty in the Local Court on 16 May 2019 from where he was committed for sentence to this Court upon two charges. The first, sequence 5 in the series of charges H66977361 is in the following terms: that he between the 20th day of August 2017 and the 5th day of December 2017 at Carlingford in the State of New South Wales did knowingly take part in the cultivation of a number of prohibited plants, namely, cannabis plants, cultivated by an enhanced indoor means being not less than the commercial quantity applicable to that plant, namely, 165 plants. The offence is contrary to s 23(2)(a) Drug Misuse and Trafficking Act 1985 and has a maximum penalty of imprisonment for 15 years and a fine represented by 3,500 penalty units.
The formulation of the charge is less than elegant, I might say. Lest it be thought that it was intended to say that the commercial quantity applicable to that prohibited plant, namely 165 plants, is a reference to that as the commercial quantity, it should be noted that in Schedule 1 Drug Misuse and Trafficking Act 1985 the commercial quantity specified for cannabis plants cultivated by an enhanced indoor means is 50 plants. Thus, this enterprise involved three times the quantity specified as the commercial quantity for cannabis plants cultivated in this manner.
The second offence, again contrary to s 23(2)(a) Drug Misuse and Trafficking Act 1985, is to be considered in conjunction with s 33 Drug Misuse and Trafficking Act 1985. It alleges that the offender between the 25th day of October 2017 and the 5th…

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 Phan

Details

AGLC: R v Phan [2019] NSWDC 601
Case: [2019] NSWDC 601
Decision Date: 02 October 2019

CaseChat Overview and Summary

The case of R v Phan was heard in the Supreme Court of Victoria, where the defendant, Phan, was charged with drug offences related to the cultivation of a prohibited plant and knowingly participating in the cultivation process. The charges stemmed from the discovery of cannabis plants growing on Phan's property. The court was tasked with determining the appropriate sentence given the nature of the offence, the defendant's role, and other relevant factors.

The legal issues before the court included the determination of the appropriate sentence for the drug offences, the consideration of the objective seriousness of the crime, the relevant factors under the sentencing act, and the need for an aggregate sentence due to multiple offences. The court also had to consider the defendant's background and any special circumstances that might mitigate the sentence.

In delivering the sentence, the court first evaluated the objective seriousness of the offence, noting the scale of the cultivation operation and the potential impact on the community. It also considered the defendant's role in the cultivation process and the need for deterrence. The court found that an aggregate sentence was appropriate due to the multiple offences and the need to reflect the total culpability. The court also took into account the defendant's background and the potential for rehabilitation. Ultimately, the court imposed an aggregate term of imprisonment of 5 years and 6 months, with a non-parole period of 3 years and 6 months, balancing the need for punishment and deterrence with the potential for rehabilitation.

Orders

Orders of the court

Aggregate term of imprisonment of 5 years 6 months with a non-parole period of 3 years 6 months

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 Phan [2019] NSWDC 601
Hearing dates:	02 October 2019
Date of orders:	02 October 2019
Decision date:	02 October 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Aggregate term of imprisonment of 5 years 6 months with a non-parole period of 3 years 6 months
Catchwords:	CRIME — Drug offences — Cultivate prohibited plant — Knowingly take part in cultivation SENTENCING — Relevant factors on sentence — Form 1 offences SENTENCING — Relevant factors on sentence — General principles SENTENCING — Relevant factors on sentence — Multiple offences SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences SENTENCING — Relevant factors on sentence — Objective seriousness SENTENCING — Sentencing procedure — Reasons for sentence SENTENCING — Subjective considerations on sentence — Special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 Markarian v R [2005] HCA 25 Muldrock v The Queen [2011] HCA 39 R v Qutami [2001] NSWCCA 353 Tepania v The Queen [2018] NSWCCA 247
Category:	Sentence
Parties:	Regina (Crown) Vinc Khac Phan (Offender)
Representation:	Matthew Dickinson (Crown) Michael Fokkes (counsel) (Offender) Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2018/00020427