Hoeben CJ at CL at [1] Johnson J at [2] N Adams J at [164]
Decision:
By majority:
1. Grant leave to appeal against sentence. 2. Appeal dismissed.
Catchwords:
CRIMINAL LAW – sentence appeal – five offences of knowingly taking part in cultivation by enhanced indoor means of the large commercial quantity of cannabis plants and one offence of knowingly taking part in cultivation by enhanced indoor means of the commercial quantity of cannabis plants – six commercial premises in Sydney metropolitan area with sophisticated hydroponic cannabis cultivation systems – applicant responsible for negotiation and arrangement of leases of the commercial premises with knowledge they would be used for purpose of cultivating cannabis by enhanced indoor means – additional Form 1 offences concerning cultivation by enhanced indoor means of commercial quantity of cannabis plants which exposed children to the cultivation process at the applicant’s residential premises – aggregate sentence of imprisonment of 13 years and 4 months with a non–parole period of 10 years – whether denial of procedural fairness in sentencing Judge findings of applicant’s role – whether error in assessment of objective criminality – whether sentencing Judge gave sufficient weight to the applicant’s subjective circumstances – whether error in declining to make finding of special circumstances – whether sentence manifestly excessive – held (by majority) no error demonstrated – leave to appeal granted but appeal dismissed
[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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AGLC
Tran v R [2018] NSWCCA 220
Case
[2018] NSWCCA 220
Decision Date
CaseChat Overview and Summary
The case of Tran v R involved the applicant appealing against a sentence imposed by the Supreme Court of New South Wales. The applicant had been convicted of six offences relating to the cultivation of cannabis by enhanced indoor means at six different commercial premises in Sydney, as well as an additional offence involving the cultivation of cannabis at his residential premises. The sentence imposed was a total of 13 years and 4 months imprisonment with a non-parole period of 10 years. The applicant argued that there were several grounds for appeal, including that the sentencing judge had denied procedural fairness by not adequately considering his role in the offences, that there was an error in the assessment of the objective criminality, that insufficient weight was given to his subjective circumstances, that there was an error in declining to make a finding of special circumstances, and that the sentence was manifestly excessive.
The court considered whether the applicant's appeal had identified any errors that warranted the grant of leave to appeal or the setting aside of the sentence. The majority of the court found that no error had been demonstrated in the sentencing process. The court noted that the sentencing judge had carefully considered the applicant's role in the offences, and had given appropriate weight to his subjective circumstances. The court also found that there was no error in the assessment of the objective criminality, and that the sentence was not manifestly excessive.
The court ultimately found that the applicant had not demonstrated any grounds for appeal that would warrant the setting aside of the sentence. The majority of the court dismissed the appeal but granted leave to appeal to the High Court. The court noted that the sentence was severe, but that it was appropriate given the seriousness of the offences and the applicant's role in them. The court also noted that the applicant had a significant criminal history, which was a relevant consideration in assessing the appropriate sentence. The final orders of the court were that leave to appeal to the High Court be granted, but that the appeal be dismissed.