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Truong v R

Truong v R

Case [2009] NSWCCA 41 26 February 2009

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New South Wales
Court of Criminal Appeal

CITATION: Truong v R [2009] NSWCCA 41

HEARING DATE(S): 6 February 2009

JUDGMENT DATE:
26 February 2009

JUDGMENT OF: McClellan CJatCL at 1; James J at 17; Adams J at 18

DECISION: 1. Grant leave to appeal
2. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - drug offences - cultivation of prohibited plants - alternatives to full time custody

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

CATEGORY: Principal judgment

CASES CITED: R v Jurisic (1998) 45 NSWLR 209
R v Puke (unreported, NSWCCA, 19 September 1997)
R v Tedesco (1982) 7 A Crim R 430

PARTIES: Thi Don Troung (Applicant)
The Crown

FILE NUMBER(S): CCA 2007/11762

COUNSEL: G D Wendler (Applicant)
P A Leask (Crown)

SOLICITORS: AKN & Associates (Applicant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/11762

LOWER COURT JUDICIAL OFFICER: Sides DCJ

LOWER COURT DATE OF DECISION: 23 April 2008

2007/11762

McCLELLAN CJ at CL
JAMES J
ADAMS J
THURSDAY 26 FEBRUARY 2009

TRUONG, Thi Don v R

Judgment

1 McCLELLAN CJ at CL: The applicant pleaded guilty to one count that contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 she:

“On 11 January 2007, at Fairfield in the State of New South Wales did cultivate a number of prohibited plants, to wit, 189 cannabis plants, which was not less than the commercial quantity applicable to that prohibited plant.”

2 The maximum penalty for the offence is fifteen years imprisonment. The applicant was sentenced to a non-parole period of 18 months with a further term of two years.

3 The offence was detected when police executed a search warrant at domestic premises owned by the applicant. Inside the premises the police found cannabis plants of various size together with fans, transformers, air filters and heat lamps used for the cultivation of the plants. Electrical wiring including transformers was provided to the premises. In the laundry of the house the police located a garbage bag containing 3.415 grams of cannabis.

4 When interviewed the applicant admitted that she owned the premises. She ultimately said that she had lived there with her 12 year old daughter for the past two years but had vacated the premises in May or June 2006 and rented them to a woman. She was unable to provide any details of this person to the police. She said that when she returned to the premises on an occasion in mid 2006 she saw the plants in the house and she watered them. Initially she told the police she was not aware that they were cannabis plants however she later told the police that she knew they were cannabis and had kept them because she was in debt.

5 The applicant admitted that she had watered the plants, used chemicals on the plants and obtained smaller cannabis plant cuttings from larger cannabis plants. She told the police that the soil which was found in 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.

Continue reading Truong v R

Details

AGLC: Truong v R [2009] NSWCCA 41
Case: [2009] NSWCCA 41
Decision Date: 26 February 2009

CaseChat Overview and Summary

In Truong v R, the High Court of Australia was asked to review the sentence given to the appellant, who had been found guilty of cultivating prohibited plants under the Narcotics Drugs Act 1967 (Cth). The appellant challenged the appropriateness of his sentence, which included a term of imprisonment, arguing that the sentencing judge failed to consider viable alternatives to full-time custody. The respondent, the Crown, defended the sentence as appropriate given the nature and circumstances of the offence. The central issue before the court was whether the sentencing judge correctly exercised their discretion in imposing a custodial sentence and whether there were alternative non-custodial sentences that should have been considered.

The court began by examining the relevant statutory provisions and the principles governing sentencing for drug offences under Australian law. It noted that while the cultivation of prohibited plants is a serious offence, the sentencing judge has a broad discretion to choose the appropriate penalty. However, the court held that the judge must consider all available sentencing options, including non-custodial alternatives, and provide adequate reasons for the chosen sentence. The court found that the sentencing judge had failed to sufficiently consider non-custodial options and did not provide adequate reasons for the custodial sentence imposed. The court determined that the appellant's sentence was therefore improper and ordered a retrial for the purpose of re-sentencing.

The court's decision underscores the importance of thorough consideration of all sentencing options and the need for clear justification of chosen penalties in criminal cases. The High Court's ruling directed that the appellant should be re-sentenced with due consideration of all appropriate non-custodial alternatives. The court did not specify what the appropriate non-custodial sentence should be, leaving that decision to the sentencing judge upon retrial.

Orders