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Court of Criminal Appeal 14 July 2009

Thi Lan NGUYEN v R

[2009] NSWCCA 181

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE TOTAL TERM OF 4Y WITH NON PAROLE PERIOD OF 2Y 6M OFFENDING WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Thi Lan Nguyen v R [2009] NSWCCA 181
Court: NSW Court of Criminal Appeal
Date: 14 July 2009
Judge(s): Giles JA, Hidden J, McCallum J

Background

The appellant was a Vietnamese national who pleaded guilty to cultivating 172 cannabis plants by enhanced indoor means at a residential property in Greenacre, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985. The commercial quantity for this offence is 50 plants, and the large commercial quantity is 200 plants, meaning the appellant's crop sat between those two thresholds. Police discovered her hiding under a blanket when they forced entry after surveillance identified suspicious activity at the house.

The appellant told a probation officer she had agreed to look after the house in exchange for money and accommodation, initially unaware the activity was illegal. She was an illegal immigrant facing deportation on release, spoke no English, and had provided minimal information prior to sentencing. The District Court sentenced her to a total term of four years imprisonment with a non-parole period of two years and six months.

The appellant sought leave to appeal on the grounds that the sentence was affected by legal error and was manifestly excessive.

  • Whether the sentencing judge wrongly treated cultivation by enhanced indoor means as a separate aggravating feature, when that element was already part of the offence charged
  • Whether the sentencing judge gave adequate weight to the particular hardships of imprisonment experienced by a foreign national with no English, no visitors, and facing deportation
  • Whether sufficient weight was given to the appellant's prospects of rehabilitation and the unlikelihood of reoffending
  • Whether, taken together, the sentence was manifestly excessive

Decision

On the first ground, the Court found that the sentencing judge had erred by treating the enhanced indoor cultivation method as an aggravating factor on top of the offence. Because "enhanced indoor means" is an element of the specific offence charged, it cannot also serve independently to increase the sentence. That constituted a legal error.

On hardship of imprisonment, the Court accepted that the particular isolation experienced by the appellant as a non-English speaker, receiving almost no visitors and facing eventual deportation, represented a form of hardship that a sentencing court should take into account. The Court found this factor had not been given sufficient weight at first instance.

On rehabilitation and reoffending, the Court accepted that the appellant's lack of prior criminal history, her guilty plea, and the circumstances of her involvement (tending plants for financial gain rather than initiating the enterprise) supported findings of genuine remorse and low risk of reoffending. These factors also had not been adequately reflected in the original sentence.

Having identified errors across all three grounds, the Court concluded the sentence was manifestly excessive and proceeded to resentence. The Court took into account a fresh affidavit from the appellant describing her isolation in custody, her shame, and her Buddhist precept against causing harm. A new total term of three years imprisonment was imposed, with a non-parole period of 22 months.

Orders Made

  • Leave to appeal granted and appeal allowed
  • Sentence imposed in the District Court on 2 December 2008 quashed
  • Appellant resentenced to imprisonment with a non-parole period of 22 months commencing 11 December 2007 and expiring 10 October 2009, with a balance of term of 14 months expiring 10 December 2010
  • Earliest eligible parole date: 10 October 2009

Key Takeaways

  • An element that constitutes part of the specific offence charged cannot also be used as a standalone aggravating feature at sentencing; doing so amounts to double-counting and is a legal error.
  • The Court of Criminal Appeal confirmed that the particular hardships of custody for a foreign national, including language isolation, lack of family contact, and the prospect of deportation, are sentencing considerations that must be meaningfully weighed.
  • Where a defendant is assessed as unlikely to reoffend and has prospects of rehabilitation, a sentencing court is required to give those matters genuine weight rather than treating them as peripheral.
  • In resentencing, the Court retained a balance of term exceeding the statutory ratio (reflecting special circumstances), broadly preserving the proportions from the original sentence, though at a lower total.
  • A guilty plea entered at the earliest opportunity attracted a 25% discount on sentence, which the Court of Criminal Appeal maintained in its resentencing exercise.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44(2)

Cases
- Bui v R [2008] NSWCCA 314
- Nguyen Huu v R [2007] NSWCCA 94
- Nguyen v R [2008] NSWCCA 322
- R v Bloomfield (1998) 44 NSWLR 734
- R v Ferrer-Esis (1991) 55 A Crim R 231
- R v Godden [2005] NSWCCA 160
- R v Huang [2000] NSWCCA 238; 113 A Crim R 386
- R v Nguyen; R v Cannistra [2006] NSWCCA 389
- R v Quan [2006] NSWCCA 382
- Truong v R
- Yang v R [2007] NSWCCA 37