Citation: Ta and Nguyen v R [2011] NSWCCA 32
Court: Court of Criminal Appeal, NSW
Date: 4 March 2011
Judge(s): James J (with Hall J and Price J agreeing)
Background
The two appellants were convicted after a joint trial in the District Court of knowingly taking part in the cultivation by enhanced indoor means of not less than the large commercial quantity of cannabis plants. The charge arose from their presence on 22 November 2007 at premises in Campsie where police found 551 cannabis plants, together with extensive hydroponic equipment. Both appellants denied any knowing involvement in the cultivation operation, with the female appellant giving evidence that she had been taken to the premises without understanding their purpose.
The Crown case rested primarily on surveillance evidence placing both appellants at the premises for just over an hour, DNA evidence linking the female appellant to cigarette butts found inside the house, and the circumstantial significance of the manner in which they left. No fingerprint evidence matched either appellant, and no keys to the house were found on either of them.
On conviction, each appellant was sentenced by the District Court. They then appealed both their convictions and, in the event their conviction appeals failed, sought leave to appeal against sentence.
Legal Issues
- Whether the trial judge erred in discharging only two jurors rather than the entire jury after potentially prejudicial evidence emerged from a police witness during cross-examination
- Whether that potentially prejudicial evidence was effectively remedied by the trial judge's directions to the remaining jury members
- Whether the sentencing judge erred by finding aggravating factors under the Crimes (Sentencing Procedure) Act 1999 s 21A(2) that were already inherent in the offence itself, specifically: use of an offensive weapon or instrument (s 21A(2)(e)), the offence being committed in the presence of other offenders (s 21A(2)(i)), and the offence being part of a planned or organised criminal activity (s 21A(2)(n))
Decision
Conviction appeals dismissed. James J found that the trial judge had responded appropriately to the emergence of potentially prejudicial evidence during cross-examination of Detective-Sergeant Liddiard. The evidence in question related to a prior aborted trial. The trial judge discharged the two jurors who indicated they may have been affected, and gave clear directions to the remaining jurors to disregard the material. James J accepted that the directions were adequate to cure any risk of prejudice, and that the discharge of the entire jury was not required in the circumstances. The conviction appeals were dismissed.
Sentence appeals allowed. The Court found that the sentencing judge had erred by treating three matters as aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act when those matters were already inherent in the offence for which the appellants had been convicted. In particular, the finding that the offence was committed "in company" could not operate as an aggravating factor where the charge itself required the participation of more than one person. Similarly, the characterisation of the offending as part of a planned or organised criminal activity was inherent in a large-scale hydroponic cultivation operation of this kind.
The Court accepted that the appellants' roles were somewhat above that of mere short-term caretakers, but emphasised that the only conduct actually proved was their presence at the premises for a little over an hour. James J concluded that the objective seriousness of their offending fell very considerably below the middle of the range for offences of this type, justifying a substantial departure from the standard non-parole period. The Court proceeded to re-sentence both appellants to lesser terms.
Orders Made
For each appellant:
- Leave to appeal against sentence granted
- Appeal against sentence allowed
- Sentence imposed by the sentencing judge quashed
- In lieu thereof: non-parole period of 3 years and 6 months commencing 27 September 2009, with a balance of term of 2 years and 6 months; earliest parole eligibility date of 26 March 2013
Key Takeaways
- Under s 21A(2) of the Crimes (Sentencing Procedure) Act, a factor cannot be treated as aggravating if it is already inherent in, or an essential element of, the offence for which the offender is being sentenced. Double-counting in this way constitutes a sentencing error.
- The finding that an offence was committed "in company" cannot aggravate a charge of knowingly taking part in cultivation where joint participation is built into the offence itself.
- Where potentially prejudicial evidence emerges at trial, the discharge of individual affected jurors, combined with clear judicial directions to the remaining jurors, may be a sufficient remedy. Full discharge of the jury is not always required.
- Upholding the sentence appeals, the Court of Criminal Appeal re-sentenced both appellants to shorter non-parole periods, treating their objectively limited proved conduct (presence at a cultivation site for just over an hour) as placing the offending well below the mid-range of seriousness for large commercial cannabis cultivation.
- The Court confirmed that under s 6(3) of the Criminal Appeal Act, once a ground of appeal against sentence succeeds, the Court must determine afresh whether a lesser sentence is warranted, applying the approach in Baxter v R (2007) 173 A Crim R 284.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(e), (i) and (n)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Procedure Act 1986 (NSW), s 281
- Evidence Act 1995 (NSW), ss 37, 37(1)(c), Part 3.3
Cases
- Crofts v The Queen (1996) 186 CLR 427
- Weissensteiner v The Queen (1993) 178 CLR 217
- Azzopardi v The Queen (2001) 205 CLR 50
- Olbrich v The Queen (1999) 199 CLR 270
- RPS v The Queen (2000) 199 CLR 620
- R v Miller [2003] QCA 404
- Elyard v R [2006] NSWCCA 43
- Baxter v R (2007) 173 A Crim R 284