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Court of Criminal Appeal 23 April 2010

Tran v R

[2010] NSWCCA 72

Drugs

Citation: Tran v R [2010] NSWCCA 72
Court: NSW Court of Criminal Appeal
Date: 23 April 2010
Judge(s): Beazley JA, Howie J, Hislop J

Background

The appellant pleaded guilty in the District Court to cultivating 210 cannabis plants by enhanced indoor means at a residential property in Moorebank, New South Wales. The quantity was just above the large commercial quantity threshold of 200 plants under the Drug Misuse and Trafficking Act 1985. The maximum penalty for the offence was 20 years' imprisonment, with a standard non-parole period of 10 years.

The sentencing judge found that the appellant was the sole operator of the plantation. He had set it up, tended the plants, and intended to sell the harvest directly to users at Kings Cross. He told police he grew the plants for money. Notably, the appellant had a prior conviction from March 2007 for a similar offence involving 30 cannabis plants, for which he received a six-month suspended sentence.

Sides DCJ sentenced the appellant to a non-parole period of five years commencing 28 May 2008, with a balance of term of two years and six months. The appellant sought leave to appeal, arguing the sentence was excessive and that the sentencing judge made adverse findings without adequate evidentiary support.

  • Whether the sentence imposed was unduly harsh and severe, given the sentencing judge's own finding that the offending fell just below the mid-range of criminality
  • Whether the sentencing judge made unwarranted adverse findings about the appellant's depression, gambling problem, and rehabilitation prospects

Decision

On the first ground, the appellant argued that, after accounting for a 25 percent discount for the early guilty plea, further reductions for remorse and delay, and a finding that the criminality fell below the mid-range, the implied notional head sentence must have exceeded 10 years, which he submitted was disproportionate. He also relied on Judicial Commission statistics showing that comparable sentences generally fell well short of the sentence imposed here. The Court of Criminal Appeal rejected this argument, finding no error in the sentencing approach and no basis to conclude that a lesser sentence was warranted in law.

On the second ground, the appellant challenged three specific findings. First, he contested the judge's treatment of his depression, but the Court noted there was no qualified expert evidence establishing depression as a relevant contributor to the offending. Second, the Court found the judge was entitled to be sceptical about the gambling evidence, given that the appellant had never mentioned gambling difficulties to probation officers across multiple engagements. Third, the finding that the appellant had not worked in gaol was factually correct, even though no evidence established that work opportunities had actually been available to him.

The Court observed that all of the adverse findings were open to the sentencing judge on the evidence. Even if some of those findings were of limited significance in isolation, they did not demonstrate appellable error individually or cumulatively. The standard non-parole period was properly used as a guidepost in accordance with R v Way, and special circumstances were found to justify the non-parole period imposed falling below that statutory benchmark.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • No error was established in the sentencing judge's methodology, including the use of the 10-year standard non-parole period as a guidepost under R v Way, even where the offending was assessed as falling just below mid-range.
  • A 25 percent discount for an early guilty plea, combined with reductions for remorse, cooperation with police, and delay, did not render the resulting sentence disproportionate on the facts of this case.
  • Where an appellant relies on depression or gambling as mitigating factors, the absence of qualified expert evidence linking those conditions to the offending limits the weight a sentencing court is required to give them.
  • Upholding the adverse rehabilitation finding, the Court confirmed that a sentencing judge is entitled to take into account an offender's failure to mention a claimed problem to supervising probation officers over an extended period.
  • Comparative sentencing statistics drawn from a small sample (eight cases) were insufficient to demonstrate that the sentence imposed here was manifestly excessive.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a)
- Criminal Procedure Act (NSW), ss 10A, 166

Cases
- R v Way (2004) 60 NSWLR 168
- R v Tran (unreported, NSWDC, 3 April 2009)
- R v Phu (unreported, NSWDC, 30 January 2008)
- R v Nguyen (unreported, NSWDC, 4 September 2008)
- Bui v R [2008] NSWCCA 314
- Nguyen v R [2009] NSWCCA 283
- Phan v R [2010] NSWCCA 8
- R v Bloomfield (1998) 44 NSWLR 734
- Wong v R [2001] HCA 64; (2001) 207 CLR 584
- R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
- R v Knight; R v Biuvanua [2007] NSWCCA 283; (2007) 176 A Crim R 338
- R v AD [2005] NSWCCA 208
- De Rosiers v R [2006] NSWCCA 16; (2006) 159 A Crim R 549
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357