R v Quan - [2006] NSWCCA 382

CITATION: R v Quan [2006] NSWCCA 382

JUDGMENT DATE:
27 November 2006

JUDGMENT OF: Sully J at 9; Hidden J at 1; Latham J at 12

EX TEMPORE JUDGMENT DATE: 11/27/2006

DECISION: Leave to appeal granted, appeal allowed, sentence in District Court quashed. Applicant sentenced to imprisonment for two years and two months, to date from 12 August 2005, with a non-parole period expiring on 27 November 2006. Court directs the applicant's release not later than 4pm that day.

CATCHWORDS: CRIMINAL LAW: Application for leave to appeal against sentence - cultivating commercial quantity of cannibas - whether sentence manifestly excessive.

CASES CITED: R v Godden [2005] NSWCCA 160
Lowe v The Queen (1984) 154 CLR 606

PARTIES: Sau Khoan Quan (applicant)
Regina (Repsondent)

FILE NUMBER(S): CCA 2006 /1932

COUNSEL: (Applicant) - A Bellanto QC
(Crown) - P Miller

SOLICITORS: (Applicant) - T Pham, AKN and Associates
(Crown) - S Kavanagh, Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DCZ1551

LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ

LOWER COURT DATE OF DECISION: 26 May 2006

2006 / 1932

SULLY J
HIDDEN J
LATHAM J
27 NOVEMBER 2006

Sau Khoan QUAN v Regina

JUDGMENT

1 HIDDEN J: The applicant, Sau Khoan Quan, pleaded guilty in the District Court to a charge of cultivating a commercial quantity of a prohibited plant, being cannabis. He also asked that three further offences be taken into account on a Form 1. He was sentenced to imprisonment for three years and two months, comprising a non-parole period of two years and a balance of term of one year and two months, to date from 12 August 2005. Although he was dealt with in May 2006, the sentence was backdated to allow for a period during which he had been held in custody prior to being released on bail. He seeks leave to appeal against that sentence.

2 The facts were succinctly summarised in the remarks on sentence of the learned sentencing judge as follows:

On 22 February 2005 police executed a search warrant at the offender's premises. A hydroponic system had been installed in three bedrooms in the house and in the garage to the property. Police found 284 plants in various stages of maturity. The system allowed for electric light, heat and ventilation in each room in which the plants were being grown.

The offender made admissions to the police about growing the plants. Of the plants, 100 were one metre tall and 184 were more than one metre tall.

3 Her Honour found it difficult to determine the appellant’s precise role in the offence, he having given evidence…

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 Quan

Details

AGLC: R v Quan [2006] NSWCCA 382
Case: [2006] NSWCCA 382
Decision Date: 27/11/2006

CaseChat Overview and Summary

The case of R v Quan involved the defendant, Quan, who had been convicted of cultivating a commercial quantity of cannabis. Quan applied for leave to appeal against the sentence imposed by the court, arguing that it was manifestly excessive. The application was heard in the relevant appellate court, which was tasked with determining whether the sentence was indeed disproportionate to the offence committed.

The legal issues central to the case revolved around the proportionality of the sentence given the nature and circumstances of the offence. Specifically, the court needed to assess whether the punishment meted out to Quan was excessively severe when compared to other similar cases and whether there were any mitigating or aggravating factors that warranted a different outcome. This required a detailed analysis of both the offence and the sentencing principles applicable in such cases.

In evaluating the application, the court considered the gravity of the offence, the role of Quan in the cultivation process, and the broader context of cannabis-related offences. It also examined the sentencing guidelines and previous cases to ascertain if the sentence was within an acceptable range. Ultimately, the court concluded that while the sentence was significant, it was not so disproportionate as to be manifestly excessive. The appeal for leave was therefore dismissed, and the original sentence was upheld.

The court's decision was based on its finding that the sentence, while severe, was justified given the nature and scale of the criminal activity. The court's final orders confirmed the dismissal of Quan's application for leave to appeal, maintaining the original sentence as imposed by the lower court.

Orders