Phan v R [2020] NSWCCA 168

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Phan v R [2020] NSWCCA 168 Hearing dates: 15 June 2020 Decision date: 23 July 2020 Before: Hoeben CJ at CL at [1]; Rothman J at [79]; Fagan J at [83] Decision: (1) Leave to appeal is granted. (2) The appeal is dismissed. Catchwords: CRIMINAL LAW – sentence appeal – two offences – knowingly take part in the cultivation of not less than a commercial quantity of prohibited plants and knowingly take part in the cultivation of not less than a large commercial quantity of prohibited plants – offence of participate in a criminal group on a Form 1 – aggregate sentence imposed of 5 years and 6 months with a non-parole period of 3 years and 6 months – challenge to assessment of objective seriousness of offences – whether parity principle breached – whether aggregate sentence manifestly excessive – error in assessment of objective seriousness – need to resentence – no lesser sentence warranted in law. Legislation Cited: Crimes Act 1900 (NSW) – s 93T(1) Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 3A, 21A, 22 Drug Misuse and Trafficking Act 1985 (NSW) – s 23(2)(a) Electricity Supply Act 1995 (NSW) – s 64(1) Cases Cited: Downes v R [2020] NSWCCA 167 Fenech v R [2018] NSWCCA 160 Gill v R [2010] NSWCCA 236 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Kay v R [2019] NSWCCA 275 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v Barri [2004] NSWCCA 221 R v Qutami [2001] NSWCCA 353 Tepania v R [2018] NSWCCA 247 Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: Vinc Khac Phan – Applicant Regina – Respondent Crown Representation: Counsel: G R James AM QC – Applicant D Patch – Respondent Crown