AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 11 March 2020

Tran v R

[2020] NSWCCA 39

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE APPEALS APPEAL AGAINST SENTENCE NO SPECIAL CIRCUMSTANCES

Citation: Tran v R [2020] NSWCCA 39
Court: Court of Criminal Appeal, New South Wales
Date: 11 March 2020
Judge(s): McCallum JA; R A Hulme J; Button J

Background

The applicant, aged 44 at the time of the offences, pleaded guilty in the Local Court to cultivating a commercial quantity of cannabis plants by enhanced indoor means, contrary to the Drug Misuse and Trafficking Act 1985 (NSW). Police found 172 cannabis plants growing in almost every room of a house in Blaxland, along with extensive electrical equipment and an illegal electricity bypass. The applicant also asked the court to take into account a related offence of using electricity without authority.

The applicant told a forensic psychologist that he had incurred a gambling debt of approximately $15,000 and had agreed to tend the cannabis plants in exchange for $1,000 per week reduction of that debt. He was not regarded as a principal in the operation.

The District Court imposed a sentence of three years with a non-parole period of two years and three months. The applicant sought leave to appeal on three grounds: that the sentencing judge failed to explicitly state a 25 per cent discount for the early guilty plea, that the judge failed to find special circumstances to extend the parole period, and that the sentence was manifestly excessive.

  • Whether the sentencing judge's failure to explicitly state or quantify a 25 per cent discount for the early guilty plea constituted a material sentencing error under the Early Appropriate Guilty Pleas (EAGP) reforms in Division 1A of Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Whether the judge erred in not finding special circumstances to justify a longer parole period relative to the non-parole period.
  • Whether a three-year sentence for commercial cannabis cultivation by enhanced means was manifestly excessive.

Decision

Ground 1: Plea discount. The Court accepted that the sentencing judge did not explicitly state or quantify the 25 per cent discount mandated by s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW). However, R A Hulme J was satisfied that the judge had in fact taken the plea into account when imposing sentence. The judge had opened his remarks by noting the Local Court pleas, a 25 per cent reduction is elementary in such circumstances under both general law and the EAGP legislation, and there was no rational basis to conclude the judge had applied a different discount. Following the approach in Lee v R [2016] NSWCCA 146, the failure to state the discount expressly was treated as an immaterial error.

Ground 2: Special circumstances. The Court found no error in the judge's refusal to find special circumstances. The applicant presented a low risk of reoffending, had strong pro-social supports, an employment history, and required only low to moderate supervision on release. The psychologist's recommendations did not call for an extended parole period. The Court also noted that by the time of the appeal hearing, the State Parole Authority had already released the applicant on a Reintegration Home Detention Order, which counsel conceded had reduced the force of this ground considerably.

Ground 3: Manifest excess. The Court rejected the contention that the three-year sentence was manifestly excessive. With 172 plants, the cultivation was close to the large commercial quantity threshold of 200 plants. The applicant attended the site repeatedly over an extended period and played a necessary role in a significant criminal enterprise. Applying the test in Markarian v The Queen (2005) 228 CLR 357, the Court was not persuaded that the sentence could be characterised as unreasonable or plainly unjust, having regard to the maximum penalty of 15 years and the strong emphasis required on general deterrence.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • Under the EAGP reforms, a sentencing court is required to state and record a guilty plea discount, but a failure to do so does not automatically invalidate the sentence or constitute a material error on appeal if the appellate court can be affirmatively satisfied the discount was in fact applied.
  • A discount of 25 per cent for a guilty plea accepted by a magistrate in committal proceedings is mandatory under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), absent an applicable exception.
  • No special circumstances were established where a community corrections assessment rated the applicant at low risk of reoffending, his support networks were strong, and the psychologist's recommendations did not require an extended supervision period.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that a three-year sentence for cultivating 172 cannabis plants by enhanced indoor means, by an offender who attended the site regularly over months, was not unreasonable or plainly unjust.
  • The Markarian standard remains the applicable test for manifest excess: the sentence must be characterised as unreasonable or plainly unjust before appellate intervention is warranted.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a)
- Electricity Supply Act 1995 (NSW), s 64(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Div 1A Pt 3 (including ss 25D, 25F, 101A), inserted by the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 124D
- Crimes (Administration of Sentences) Regulation 2014 (NSW), cls 232B, 232C

Cases
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Lee v R [2016] NSWCCA 146
- Zhang v R [2018] NSWCCA 82
- Forti v R [2016] NSWCCA 127