Citation: Nguyen v R [2008] NSWCCA 322
Court: NSW Court of Criminal Appeal
Date: 18 December 2008
Judge(s): Tobias JA; James J; Price J
Background
The appellant pleaded guilty in the District Court at Parramatta to two counts: cultivating a commercial quantity of prohibited plants (105 cannabis plants) and possessing cannabis leaf in excess of the trafficable quantity (approximately 3.7 kilograms). Police had found an elaborate indoor growing operation at his Guildford premises, complete with bypassed electricity, fertilisers, and nearly $15,000 in cash. The entire crop was conservatively valued at $250,000 at street level.
The sentencing judge imposed a total sentence of five years and six months, with a non-parole period of four years. This was achieved by accumulating six months of the cultivation sentence onto the supply sentence, and by applying an overall 30 percent discount for the guilty pleas (25 percent for utilitarian value and 5 percent for remorse).
The appellant sought leave to appeal on three grounds, arguing errors in the accumulation of sentences, the method of calculating the plea discount, and manifest excess.
Legal Issues
- Whether the sentencing judge erred by treating the strength of the prosecution case as relevant when calculating the utilitarian component of the plea discount
- Whether the sentencing judge erred by accumulating six months of the cultivation sentence on the supply sentence
- Whether the sentence for the cultivation offence, and the total sentence, were manifestly excessive
- Whether supplementary written submissions filed after the conclusion of the hearing, without prior leave, should be received
Decision
Ground 2 (plea discount): The sentencing judge's remarks indicated he had factored in the near-inevitability of conviction when assessing the utilitarian value of the plea, reducing that component to 5 percent and adding 25 percent for the remorse component. The Court of Criminal Appeal confirmed, following R v Thomson and Houlton, that the strength of the prosecution case is irrelevant to the utilitarian component of a plea discount. However, the Court found the overall 30 percent discount was not affected by this error in reasoning because the judge had simply split the discount differently across two legitimate heads (utility and remorse), and the aggregate figure remained appropriate.
Ground 1 (accumulation): The Court rejected the argument that the six-month accumulation was erroneous. The cultivation and supply offences, though arising from the same police operation on the same day, were distinct offences with different elements. The Court found the sentencing judge was entitled to conclude they did not form part of a single criminal episode in a way that precluded any accumulation. Some accumulation was justified given the separate criminality involved.
Ground 3 (manifest excess): The Court found the individual sentence for cultivation, and the aggregate sentence, were within the available range and not manifestly excessive given the scale of the operation, the commercial quantities involved, and the appellant's role as the sole operator of a sophisticated setup.
Post-hearing submissions: Counsel for the appellant filed supplementary written submissions after the hearing concluded and simultaneously sought leave to do so. The Court refused leave. Tobias JA noted that the practice of filing post-hearing submissions without prior leave is well-established as impermissible, citing authority from both the High Court and the Court of Appeal. This rule extends to criminal appeals, with the narrow exception of genuinely supervening events such as a directly relevant appellate decision handed down after the hearing. An afterthought by counsel does not qualify.
Orders Made
- Leave to appeal against sentence granted.
- Appeal against sentence dismissed.
Key Takeaways
- The strength of the prosecution case is not a relevant consideration when assessing the utilitarian value of a guilty plea discount, as confirmed by reference to R v Thomson and Houlton. However, where an error in the allocation of the discount across different heads does not affect the overall figure, it will not vitiate the sentence.
- A sentencing court may accumulate sentences for offences arising from the same day's events if those offences are legally and factually distinct and do not form part of a single criminal episode. The determination is fact-specific.
- Supplementary submissions filed after the conclusion of oral argument, without prior leave, should be refused. The Court of Criminal Appeal confirmed this principle applies in criminal appeals just as it does in civil appeals, subject only to narrow exceptional circumstances.
- An example of exceptional circumstances warranting post-hearing submissions is where an authoritative appellate decision directly on point is handed down after the hearing is completed. A counsel's afterthought does not meet that threshold.
- In dismissing the appeal, the Court of Criminal Appeal reinforced that the procedure for seeking leave to file additional submissions is to raise the matter during the hearing itself, not to file the submissions and seek leave simultaneously after the fact.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
Cases:
- R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- R v Sutton [2004] NSWCCA 225
- Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246
- In the matter of an application by the Chief Commissioner of Police (Vic) [2005] HCA 18; (2005) 79 ALJR 881
- Dwyer v Commonwealth Bank of Australia (1995) 31 ATR 48
- Kirwan v Cresvale Far East Ltd (In liq) [2002] NSWCA 395; (2002) 44 ACSR 21
- Chapman v Caska [2005] NSWCA 113
- Notaras v Waverley City Council [2007] NSWCA 333; (2007) 161 LGERA 230