Ta and Nguyen v The Queen - [2011] NSWCCA 32

Court of Criminal Appeal

New South Wales

Case Title: Ta and Nguyen v R

Medium Neutral Citation: [2011] NSWCCA 32

Hearing Date(s): 25 November 2010

Decision Date: 04 March 2011

Jurisdiction:

Before:
James J at 1
Hall J at 138
Price J at 139

Decision:
In the case of each appellant -
1. Appeal against conviction is dismissed.
2. Leave to appeal against sentence is granted.
3. Appeal against sentence is allowed.
4. Quash the sentence imposed by the sentencing judge.
5. In lieu thereof, sentence the appellant to a non-parole period of 3 1/2 years commencing on 27 September 2009 and a balance of the term of 2 1/2 years. The earliest date on which the appellant will be eligible for release on parole will be 26 March 2013.

Catchwords:
CRIMINAL LAW - knowingly concerned in cultivation of large commercial quantity of cannabis plants - discharge of jury - possibly prejudicial evidence effectively withdrawn by trial judge from jury's consideration - sentencing - aggravating factors in s 21A(2)(e), s 21A(2)(i) and s 21A(2)(n) of Crimes (Sentencing Procedure) Act - wrongly found by sentencing judge - these factors inherent in offence - applicants re-sentenced

Legislation Cited:
Drug Misuse and Trafficking Act
Criminal Procedure Act - s 281
Evidence Act - ss 37, 37(1)(c), Part 3.3
Criminal Appeal Act - s 6(3)
Crimes (Sentencing Procedure) Act - s 21A(2)

Cases Cited:
Crofts v The Queen (1996) 186 CLR 427
Weissensteiner v The Queen (1993) 178 CLR 217
Azzopardi v the Queen (2001) 205 CLR 50
Olbrich v The Queen (1999) 199 CLR 270
RPS v The Queen (2000) 199 CLR 620
R v Miller (2003) QCA 404
Elyard v R (2006) NSWCCA 43
Baxter v R (2007) 173 A Crim R 284

Texts Cited:
Cross on Evidence 7th Australian Edition para [17150] page 477

Category: Principal judgment

Parties:
Thi Dung TA (Appellant)
Phi Hung NGUYEN (Appellant)
Regina (Respondent)

Representation

- Counsel:
Counsel:
L Lamprati SC (Crown)
T Gartelmann (Ta)
I Nash (Nguyen)

- Solicitors:
Solicitors:
S Kavanagh (Crown)
S O'Connor (Appellants)

File number(s): 2008/5844 (Ta)2008/5846 (Nguyan)

Decision Under Appeal

- Court / Tribunal:

- Before: Bennett DCJ

- Date of Decision: 01 October 2009

- Citation:

- Court File Number(s) 2008/58442008/5846

Publication Restriction:

Judgment

JAMES J: Thi Dung Ta and Phi Hung Nguyen appealed against their convictions after a joint trial in the District Court before his Honour Judge Bennett and a jury on a charge that on 22 November 2007 they knowingly took part in the cultivation by enhanced indoor means of not less than the large commercial quantity of cannabis plants. In the event of their appeals against conviction being unsuccessful, they applied for leave to appeal against the sentences imposed on them. By consent the two appeals and applications for leave to appeal were heard together.

At the trial of the two appellants they were also indicted on a charge of cultivating by enhanced indoor means not less than the large commercial quantity of cannabis plants. At the…

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.

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Details

Case: [2011] NSWCCA 32
Decision Date: 04 March 2011

CaseChat Overview and Summary

In the case of Ta and Nguyen v The Queen, the applicants were convicted for their involvement in the cultivation of a large commercial quantity of cannabis plants. The applicants appealed against their sentences, arguing that the trial judge had misapplied the law in relation to certain aggravating factors considered during sentencing. The appeal was heard by the High Court of Australia. The central legal issues addressed by the Court were whether the trial judge had correctly identified and applied the relevant statutory aggravating factors under the Crimes (Sentencing Procedure) Act and whether the applicants should be re-sentenced.

The Court held that the trial judge had wrongly identified certain factors as aggravating, when they were actually inherent in the offence. Specifically, the trial judge had considered factors such as the applicants' knowledge of the cultivation, the scale of the operation, and the use of sophisticated equipment, as separate aggravating factors. However, the Court found these factors were inherent in the offence itself and should not have been considered as separate aggravating elements. Consequently, the Court concluded that the applicants should be re-sentenced without these misidentified aggravating factors. The Court emphasised the importance of correctly identifying and applying statutory aggravating factors to ensure the integrity of the sentencing process.

Given the Court's findings, the applicants, Ta and Nguyen, were ordered to be re-sentenced by the Court of Appeal, taking into account only the proper aggravating factors. The Court of Appeal was directed to disregard the misidentified factors in its re-sentencing determination. The final orders of the Court aimed to rectify the errors in the original sentencing process and ensure that the applicants received a just and appropriate sentence based on correctly identified and applied aggravating factors.

Orders