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Court of Criminal Appeal 27 November 2009

Nguyen v Regina

[2009] NSWCCA 283

Drugs
CRIMINAL LAW SENTENCE APPEAL DRUG CULTIVATION SENTENCE NOT MANIFESTLY EXCESSIVE

Citation: Nguyen v Regina [2009] NSWCCA 283
Court: NSW Court of Criminal Appeal
Date: 27 November 2009
Judge(s): Basten JA, Howie J, Hislop J

Background

The appellant pleaded guilty in the District Court to cultivating a large commercial quantity of cannabis by enhanced indoor means, specifically 202 plants grown under hydroponic conditions across four rooms of a residential property in Belmore. His role was described as maintenance: watering, fertilising, and changing globes as required. He was the sole occupant of the premises when police executed a search warrant in December 2007.

The District Court sentenced the appellant to a non-parole period of 3 years and 3 months, with a balance of term of 2 years and 4 months, for a total sentence of 5 years and 7 months. Four related offences, including being found on drug premises, diverting electricity, and resisting a police officer, were taken into account on a Form 1 (a procedure that allows a court to consider additional charges without convicting the offender of them separately).

The appellant sought leave to appeal to the Court of Criminal Appeal on the sole ground that the sentence was manifestly excessive.

  • Whether the sentence imposed by the District Court was manifestly excessive, having regard to comparable decisions and Judicial Commission statistics
  • Whether the standard non-parole period of 10 years prescribed for cultivation of 200 or more cannabis plants by enhanced indoor means was appropriately applied as a reference point
  • Whether the appellant's role at the lower end of the scale, combined with his subjective circumstances, warranted a materially lower sentence

Decision

Hislop J, with whom Basten JA and Howie J agreed, dismissed the appeal. The Court found that no error by the sentencing judge had been demonstrated and that no lesser sentence was warranted in law.

On the comparison with prior cases and statistics, the Court acknowledged that the appellant's sentence exceeded those imposed in cases involving fewer than 200 plants. However, it held that this comparison was not apt. The legislature had deliberately drawn a line at 200 plants, attaching significantly harsher penalties at that threshold. Comparing the sentence to cases below the large commercial quantity was therefore not persuasive as a basis for establishing manifest excess.

The standard non-parole period of 10 years, which applied to offences at or above the 200-plant threshold, remained a relevant benchmark even after a guilty plea. The sentencing judge had correctly treated it as a reference point and applied a substantial discount for the plea and the appellant's favourable subjective circumstances, including his lack of prior convictions, contrition, and good rehabilitation prospects. The Court noted that the implementation of a relatively high standard non-parole period will inevitably lead to higher sentences in the relevant category.

The Court concluded that the sentencing judge's exercise of discretion was consistent with the applicable statutory framework and the established principles from this Court. No patent error was identified.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the legislative threshold of 200 cannabis plants for the large commercial quantity category is not to be treated as arbitrary: sentences for offences at or above that line will appropriately exceed those imposed for offences just below it.
  • A standard non-parole period remains a relevant sentencing benchmark even where a guilty plea has been entered, though the court must maintain an appropriate relationship between that benchmark and the objective seriousness of the particular offence.
  • In dismissing the appeal, the Court reiterated that Judicial Commission statistics and comparative case analysis must account for meaningful legal distinctions, such as the quantity threshold, rather than treating factually similar-looking cases as directly equivalent.
  • No error was established merely because the appellant's sentence exceeded those recorded in Judicial Commission data for the relevant offence type, where those prior sentences pre-dated or did not engage the standard non-parole period regime.
  • Sentencing is a discretionary exercise, and an appellate court will not intervene unless an error or manifest excess is demonstrated; the range of outcomes consistent with proper sentencing principles is broader than a single correct sentence.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a), s 36X(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Div 1A (standard non-parole periods)
- Crimes Act 1900 (NSW), s 58
- Electricity Supply Act 1995 (NSW), ss 64, 65

Cases:
- Bui v R [2008] NSWCCA 314
- Des Rosiers v Regina [2006] NSWCCA 16; 159 A Crim R 549
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- R v AD [2005] NSWCCA 208
- R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
- R v Bloomfield (1998) 44 NSWLR 734
- R v Holder (1983) 3 NSWLR 245
- R v Knight; R v Biuvanua [2007] NSWCCA 283; 176 A Crim R 338
- R v Morgan [1993] 70 A Crim R 368
- Thi Lan Nguyen v R [2009] NSWCCA 181
- Truong v R [2009] NSWCCA 41
- Wong v R [2001] HCA 64; (2001) 207 CLR 584