LY v REGINA [2006] NSWCCA 324

New South Wales Court of Criminal Appeal

CITATION: LY v REGINA [2006] NSWCCA 324

HEARING DATE(S): 4 October 2006 JUDGMENT OF: Sully J at 1; Adams J at 2; Howie J at 23

EX TEMPORE JUDGMENT DATE: 10/04/2006

DECISION: Leave to appeal granted; appeal dismissed.

CATCHWORDS: Sentence appeal - cultivation of cannabis - no question of principle - appeal dismissed.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 ss 43, 44(1)

Edwards (1996) 90 A Crim R 510 CASES CITED: Ho v DPP (1995) 37 NSWLR 393 R v Wood [2005] NSWCCA 233

Hoan Tuyet LY (Applicant) PARTIES: REGINA (Respondent)

FILE NUMBER(S): CCA 2006/1934

COUNSEL: Mr P Boulton SC (Applicant) Mr W Dawe QC (Respondent)

SOLICITORS: AKN & Associates (Applicant) S Kavanagh (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1208

LOWER COURT JUDICIAL OFFICER: Boulton ADCJ

LOWER COURT DATE OF DECISION: 2 February 2006

IN THE COURT OF CRIMINAL APPEAL 2006/1934

SULLY J ADAMS J HOWIE J

4 October 2006 Hoan Tuyet LY v REGINA Judgment

1 SULLY J: I invite Adams J to give the first judgment. 2 ADAMS J:

Introduction

The applicant was convicted on 14 September 2005 of cultivating a prohibited plant, namely cannabis, in premises at Hurstville between 23 February 2004 and 24 April 2004. The quantity of cannabis was 183 plants. On 2 February 2006 she was sentenced to two years' imprisonment commencing 26 January 2006 and expiring on 25 January 2008 with a non-parole period of twelve months expiring 25 January 2007. The applicant submits that this sentence was manifestly excessive. 3 The defence at trial was, essentially, that the applicant was unaware that the plants she was assisting to cultivate were cannabis. The objective facts were not, in substance, in dispute either at trial or on sentence. There was no submission in this Court that any of the factual findings of the learned sentencing judge were wrong. The following account is largely taken from the learned sentencing judge's reasons for sentence.