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7
Court of Criminal Appeal 5 April 2007

NGUYEN Huu v R

[2007] NSWCCA 94

Drugs

Citation: NGUYEN Huu v R [2007] NSWCCA 94
Court: NSW Court of Criminal Appeal
Date: 5 April 2007
Judge(s): McClellan CJ at CL, Hulme J, Hislop J

Background

The appellant pleaded guilty in the Liverpool Local Court to cultivating 278 cannabis plants, a quantity falling within the commercial range under the Drug (Misuse and Trafficking) Act. Police executing a search warrant found the plants distributed across five rooms and the underfloor area of his home, which had been fitted out with grow lights, fans, and ventilation systems. The estimated street value of the plants was $556,000.

At sentencing, Judge Maguire in the District Court imposed a non-parole period of 15 months and a balance of term of 15 months, applying a 25% discount for the guilty plea and also taking into account a related supply offence involving 5,700 grams of cannabis leaf found in the appellant's vehicle.

The appellant sought leave to appeal the sentence on the basis that it was excessive and that insufficient weight had been given to his gambling problem as a reason for committing the offences.

  • Whether Judge Maguire erred in his sentencing approach, specifically by structuring the non-parole period and head sentence in a manner that negated the benefit of the 25% guilty plea discount
  • Whether the sentencing judge failed to give adequate weight to the appellant's gambling problem as a mitigating factor

Decision

On the first ground, the Court found no error in Judge Maguire's approach. The appellant argued that the structure of the sentence, stating the non-parole period first and then the balance of term, demonstrated that the judge had worked arithmetically from the head sentence rather than reducing the non-parole period to reflect special circumstances. The Court rejected this, finding nothing in the sentencing remarks to support that inference.

The appellant also argued by reference to the earlier CCA decision in R v Godden, where a sentence for a similar offence had been reduced on appeal, that the notional starting point of approximately 40 months adopted here was manifestly excessive. Hulme J identified at least three answers to this submission. First, Godden did not establish a ceiling or a fixed benchmark for this type of offending. Second, the circumstances of the two cases were distinguishable, with the appellant's offence involving a substantial supply charge taken into account and plants valued at significantly more than in Godden. Third, sentencing statistics and prior authorities confirmed that the sentence imposed here was within the available range.

On the second ground, the Court found the gambling addiction claim was not adequately established. The evidence before the sentencing court, drawn from an interview and a psychologist's report, was internally inconsistent and did not persuasively demonstrate that gambling addiction drove the offending. Hulme J further noted that the Court of Criminal Appeal's decision in R v Henry made clear that addiction is not ordinarily a mitigating factor, and no circumstances of the confined kind recognised in Henry were present here.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the order in which a judge states the non-parole period and balance of term in sentencing remarks does not, of itself, demonstrate that the non-parole period was derived by arithmetic from an inflated head sentence.
  • A prior CCA decision reducing a sentence for commercial cannabis cultivation does not create a fixed ceiling or benchmark; sentencing remains an exercise of discretion calibrated to the individual offending circumstances.
  • Comparison with sentences in earlier cases requires close attention to the specific differences in the offending conduct, criminal history, and matters taken into account, and a superficial numerical comparison will not establish manifest excess.
  • Under the principles established in R v Henry, gambling addiction is not ordinarily treated as a mitigating factor in sentencing, and a court may reject an addiction-based submission where the evidence is inconsistent or unconvincing.
  • Sufficient reasons existed to distinguish the appellant's case from R v Godden, including the significant supply offence taken into account and the high street value of the plants cultivated.

Legislation and Cases Referenced

Legislation:
- Drug (Misuse and Trafficking) Act (NSW), ss 23(2)(a), 25, 29
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(1), 44(2)

Cases:
- R v Godden [2005] NSWCCA 160
- Quan v R [2006] NSWCCA 382
- R v Henry (1999) 46 NSWLR 346