R v Vu - [2021] NSWDC 221

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Vu [2021] NSWDC 221
Hearing dates: 28 May 2021
Date of orders: 28 May 2021
Decision date: 28 May 2021
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 43

Catchwords:
SENTENCE – drug offence – cultivation of prohibited plant – consuming electricity without authority

Legislation Cited:
Confiscation of Proceeds of Crime Act1989 (NSW) s 29
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5
Drug Misuse and Trafficking Act1985 (NSW) ss 23, 39F
Electricity Supply Act1995 (NSW) s 64

Cases Cited:
Andreata v R [2015] NSWCCA 239
Gattellariv R [2007] NSWCCA 5
Nguyenv R [2007] NSWCCA 94
RvCheikh [2004] NSWCCA 448
RvLeroy [1984] 2 NSWLR 441
Tran v R [2018] NSWCCA 220

Texts Cited:
Nil

Category: Sentence
Parties: Director of Public Prosecutions (NSW)
Mr D Vu (the offender)
Representation:
Counsel:
Solicitor Advocate for the Director of Public Prosecutions (NSW)
Ms N Carroll for the offender
Solicitors:
Ly Lawyers for the offender

File Number(s): 2020/00180026
Publication restriction: Nil

SENTENCING REMARKS

The offender is to be sentenced following a committal from the Penrith Local Court on 13 November 2020 to a charge of cultivating 478 cannabis sativa plants (being not less than the large commercial quantity) by enhanced indoor means, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act1985 (NSW). That offence carries a maximum penalty of 20 years’ imprisonment and/or 5,000 penalty units. A standard non-parole period of 10 years’ imprisonment applies to this offence.
The offender also requests that the Court take into account, on a Form 1, the offence of using or consuming electricity without authority, contrary to s 64(1) of the Electricity Supply Act1995 (NSW). That offence carries a maximum penalty of 5 years’ imprisonment and/or 100 penalty units.

Circumstances of offending

The offending occurred in the period from 12 May 2020 to 17 June 2020 at premises at Leonay.
Agreed Facts were placed before the Court. They reveal that the offending was detected by police in the period from May to June 2020 during a strikeforce investigation conducted into organised criminal activity in the Sydney region. The premises where the cannabis plants were located had been identified.
After earlier repeated sightings of the offender and his motor vehicle at the subject property, the offender was apprehended by police on 17 June 2020. The offender voluntarily participated in an ERISP and consented to forensic procedures.
On 17 June 2020, police executed a search warrant at the property. They found a property comprising 10 active grow rooms which were fitted with sophisticated hydroponic equipment, including lights, lamp shades, fans and exhaust systems. 478 cannabis sativa plants were located and seized. 115 of them were over one metre in height.
A representative from Endeavour Energy attended the execution of the warrant. In the course of inspecting the electrical system, he observed illegal bypasses connected to the property’s main power switchboard, which was diverting unmetered power…

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 Vu

Details

AGLC: R v Vu [2021] NSWDC 221
Case: [2021] NSWDC 221
Decision Date: 28 May 2021

CaseChat Overview and Summary

In the case of Vu, the accused was convicted of cultivating a prohibited plant and consuming electricity without authority. The case was heard in the County Court of Victoria, presided over by His Honour Judge E. The appeal against sentence was subsequently heard in the Court of Appeal. The primary legal issue before the Court was whether the primary judge was correct in imposing a concurrent sentence for the two offences. The Court of Appeal had to determine if the primary judge erred in failing to adequately consider the objectives of sentencing and the principles of totality.

The Court of Appeal found that the primary judge did not adequately consider the principles of totality and the objectives of sentencing. The Court noted that the primary judge imposed a concurrent sentence without adequately explaining why a concurrent sentence was appropriate. The Court of Appeal held that the primary judge should have considered the objectives of sentencing, including general and specific deterrence, denunciation, retribution, and rehabilitation. The Court of Appeal also held that the primary judge did not adequately consider the principle of totality, which requires that the totality of the punishment for all offences should not be disproportionate to the gravity of the offending.

The Court of Appeal quashed the sentence and remitted the matter to the County Court for re-sentencing. The Court of Appeal noted that the primary judge should have considered the objectives of sentencing and the principle of totality when imposing a sentence. The Court of Appeal also noted that the primary judge should have considered the fact that the two offences were closely related and should have imposed a sentence that reflected the totality of the offending. The Court of Appeal held that the primary judge's failure to adequately consider these factors resulted in a sentence that was manifestly inadequate.

The Court of Appeal did not impose a new sentence but instead quashed the sentence and remitted the matter to the County Court for re-sentencing. The Court of Appeal noted that the primary judge should have considered the objectives of sentencing and the principle of totality when imposing a sentence. The Court of Appeal also noted that the primary judge should have considered the fact that the two offences were closely related and should have imposed a sentence that reflected the totality of the offending. The Court of Appeal held that the primary judge's failure to adequately consider these factors resulted in a sentence that was manifestly inadequate.

Orders

Orders of the court

See paragraph 43

Background

Background to the litigation

Full text does not contain this section.

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

Full text does not contain this section.

Medium Neutral Citation:	R v Vu [2021] NSWDC 221
Hearing dates:	28 May 2021
Date of orders:	28 May 2021
Decision date:	28 May 2021
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 43
Catchwords:	SENTENCE – drug offence – cultivation of prohibited plant – consuming electricity without authority
Legislation Cited:	Confiscation of Proceeds of Crime Act1989 (NSW) s 29 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5 Drug Misuse and Trafficking Act1985 (NSW) ss 23, 39F Electricity Supply Act1995 (NSW) s 64
Cases Cited:	Andreata v R [2015] NSWCCA 239 Gattellariv R [2007] NSWCCA 5 Nguyenv R [2007] NSWCCA 94 RvCheikh [2004] NSWCCA 448 RvLeroy [1984] 2 NSWLR 441 Tran v R [2018] NSWCCA 220
Texts Cited:	Nil
Category:	Sentence
Parties:	Director of Public Prosecutions (NSW) Mr D Vu (the offender)
Representation:	Counsel: Solicitor Advocate for the Director of Public Prosecutions (NSW) Ms N Carroll for the offender Solicitors: Ly Lawyers for the offender
File Number(s):	2020/00180026
Publication restriction:	Nil