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Thi Lan Nguyen v R

Thi Lan Nguyen v R

Case [2009] NSWCCA 181 14 July 2009

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New South Wales
Court of Criminal Appeal

CITATION: Thi Lan NGUYEN v R [2009] NSWCCA 181

HEARING DATE(S): 30 June 2009

JUDGMENT DATE:
14 July 2009

JUDGMENT OF: Giles JA at 1; Hidden J at 2; McCallum J at 3

DECISION: 1. Application for leave to appeal granted and the appeal allowed.
2. The sentence imposed in the District Court on 2 December 2008 is quashed.
3. In lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 22 months to commence on 11 December 2007 and to expire on 10 October 2009 with a balance of term of 14 months to expire on 10 December 2010. The earliest date on which the applicant will be eligible for release to parole is 10 October 2009.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - appellant pleaded guilty to cultivation of cannabis plants by enhanced indoor means - total term of 4y with non-parole period of 2y 6m - whether cultivation by enhanced indoor means wrongly taken into account as an aggravating feature - hardship of imprisonment for a foreign national - whether sentencing Judge failed to give due weight to prospects of rehabilitation and unlikelihood of re-offending - whether sentence manifestly excessive - applicant re-sentenced to imprisonment with non-parole period of 22m and balance of term of 14m

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

CATEGORY: Principal judgment

CASES CITED: Bui v R [2008] NSWCCA 314
Nguyen Huu v R [2007] NSWCCA 94
Nguyen v R [2008] NSWCCA 322
R v Bloomfield (1998) 44 NSWLR 734
R v Ferrer-Esis (1991) 55 A Crim R 231
R v Godden [2005] NSWCCA 160
R v Huang [2000] NSWCCA 238; [2000] 113 A Crim R 386
R v Nguyen; R v Cannistra [2006] NSWCCA 389
R v Quan [2006] NSWCCA 382
Truong v R
Yang v R [2007] NSWCCA 37

PARTIES: Thi Lan NGUYEN (Applicant)
REGINA (Respondent)

FILE NUMBER(S): CCA 2008/5843

COUNSEL: R Wilson (Applicant)
P A Leask (Respondent)

SOLICITORS: Greenfield Lawyers (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/5843

LOWER COURT JUDICIAL OFFICER: Sides DCJ

LOWER COURT DATE OF DECISION: 2 December 2008

- 15 -

2008/5843

GILES JA
HIDDEN J
McCALLUM J

14 JULY 2009

THI LAN NGUYEN v R

Judgment

1 GILES JA: I agree with McCallum J.

2 HIDDEN J: I agree with McCallum J.

3 McCALLUM J: This is an application for leave to appeal against the sentence imposed on Thi Lan Nguyen after she pleaded guilty to one count of cultivating a number of prohibited plants not less than the commercial quantity, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985. The charge related to the cultivation of 172 cannabis plants by enhanced indoor means. The commercial quantity in those circumstances is 50 plants, while the large commercial quantity is 200 plants.

4 The maximum penalty for the offence is 15 years…

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 Thi Lan Nguyen v R

Details

AGLC: Thi Lan Nguyen v R [2009] NSWCCA 181
Case: [2009] NSWCCA 181
Decision Date: 14 July 2009

CaseChat Overview and Summary

The case of Thi Lan Nguyen v R involved the appellant, Thi Lan Nguyen, who had pleaded guilty to cultivating cannabis plants using enhanced indoor means. The District Court sentenced Nguyen to a total term of four years, with a non-parole period of two years and six months. Nguyen appealed the sentence, arguing that the sentencing judge erred by considering the use of enhanced indoor means as an aggravating factor. Additionally, Nguyen contended that the judge failed to adequately weigh the hardship of imprisonment for a foreign national, her prospects of rehabilitation, and the low likelihood of re-offending. The appeal raised questions regarding the correctness of the sentence and whether it was manifestly excessive.

The court had to decide whether the sentencing judge correctly identified and weighed the relevant aggravating and mitigating factors. Specifically, the court examined whether the use of enhanced indoor means should have been considered an aggravating factor and whether the sentence adequately balanced the need for deterrence and denunciation against the principles of rehabilitation and the low risk of re-offending. The court also considered the impact of imprisonment on a foreign national, including the potential for hardship and separation from family.

In its reasoning, the court found that the use of enhanced indoor means was not an appropriate aggravating factor in this case, given the circumstances. The court also determined that the sentencing judge did not give sufficient weight to the prospects of rehabilitation and the low risk of re-offending. The hardship of imprisonment for a foreign national was also deemed to be a relevant mitigating factor. As a result, the court held that the original sentence was manifestly excessive. Nguyen was re-sentenced to imprisonment with a non-parole period of 22 months and the balance of the term to be 14 months.

The final orders of the court included the re-sentencing of Thi Lan Nguyen to a total term of imprisonment of 36 months, with a non-parole period of 22 months. The balance of the term was set at 14 months, reflecting the court's consideration of all relevant factors, including the mitigating circumstances of Nguyen's situation as a foreign national and her prospects for rehabilitation.

Orders