Wong v R - [2010] NSWCCA 160

New South Wales
Court of Criminal Appeal

CITATION: Wei Zheng WONG v R [2010] NSWCCA 160

HEARING DATE(S): 25/06/2010

JUDGMENT OF: McClellan CJatCL at 21, 23; Hislop J at 22; Barr AJ at 1

EX TEMPORE JUDGMENT DATE: 25 June 2010

DECISION: Grant leave to appeal but dismiss the appeal.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 - s 23(2)(a)

CATEGORY: Principal judgment

CASES CITED: Regina v George (2004) 149 A Crim R 38
Regina v Morgan (1993) 70 A Crim R 368
Truong v R [2009] NSWCCA 41
Bui v R [2008] NSWCCA 314
Nguyen v R [2009] NSWCCA 283
Pham v R [2009] NSWCCA 266
Phan v R [2010] NSWCCA 8

PARTIES: Wei Zheng Wong, Regina

FILE NUMBER(S): CCA 2008/19443

COUNSEL: P Linegar - Applicant
P A Leask - Crown

SOLICITORS: S O'Connor - Applicant
S Kavanagh - Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: Sides QC DCJ

2008/19443

McCLELLAN CJ at CL
HISLOP J
BARR AJ
FRIDAY 25 JUNE 2010

Wei Zheng WONG v REGINA

Judgment

1 BARR AJ: The applicant, Wei Zheng Wong, seeks leave to appeal against a sentence imposed upon him in the District Court. He pleaded guilty in the Local Court to an offence under s 23(2)(a) Drug Misuse and Trafficking Act 1985, namely that on 23 May 2008 at Cartwright he knowingly took part in the cultivation of a number of prohibited plants, namely 255 cannabis plants cultivated by enhanced indoor means, which was not less than the large commercial quantity. He was committed to the District Court for sentence. On 18 August 2009 Judge Sides of Queen’s Counsel convicted him of the offence and set a non-parole period of 1 year and 9 months, commencing on 30 July 2009, and a balance of term of 2 years. The head sentence of 3 years and 9 months was imposed against a maximum sentence of 20 years and the non-parole period of 1 year and 9 months against a standard non-parole period of 10 years.

2 On 23 May 2008 police were watching a premises at Cartwright. They could hear fans operating inside the house and could smell cannabis. They spoke to the applicant, who was inside the house. In the house the police found, distributed throughout five rooms, 255 cannabis plants in various stages of growth, heat globes and shades and heat extractors. Also found were transformers and two large power boxes with numerous extension leads. Only one room in the house was set up for occupancy. That was where the applicant was living. Police arrested him and asked him about the cannabis plants. He said that he had only just seen them. He denied looking after them. He was taken to the police station and formally interviewed. He said that he had been living at the premises since December the previous year, a period of about 6 months, and was renting from a man he named. He said that when he moved into the house there…

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 Wong v R

Details

AGLC: Wong v R [2010] NSWCCA 160
Case: [2010] NSWCCA 160
Decision Date: 25 June 2010

CaseChat Overview and Summary

Wei Zheng Wong appealed against his sentence for cultivating 255 cannabis plants by enhanced indoor means in Cartwright, New South Wales. The District Court imposed a head sentence of 3 years and 9 months, with a non-parole period of 1 year and 9 months. The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. The applicant argued that the sentence was manifestly excessive. He submitted that the length of the sentence indicated error, and compared his case with unrelated cases to argue that the sentence was disproportionate. However, the Court found that the cited cases and statistics did not demonstrate that the sentence was outside the established range. The Court held that the offence called for a substantial custodial period, and that the head sentence and non-parole period fell within the proper grounds of the trial judge’s sentencing discretion. The Court found no error in the sentence. The Court granted leave to appeal but dismissed the appeal. The Court also vacated an earlier order that quashed the appellant's conviction under s 70 of the Electricity Supply Act 1995.

Orders