VU v R [2007] NSWCCA 374

New South Wales Court of Criminal Appeal

CITATION: VU v R [2007] NSWCCA 374

HEARING DATE(S): 24 May 2007 JUDGMENT OF: McClellan CJ at CL at 1; Hislop J at 6; Smart AJ at 7

EX TEMPORE JUDGMENT DATE: 24 May 2007

DECISION: 1. Quash the sentence imposed in the District Court; 2. Re-sentence the applicant to a non-parole period of 14 months to commence on 14 August 2006 and expire on 13 October 2007 with a further term of 10 months to expire on 13 August 2008.

LEGISLATION CITED: Drugs Misuse and Trafficking Act 1985

CASES CITED: Thomson v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

PARTIES: Vu Van Vu (Applicant) The Crown

FILE NUMBER(S): CCA 2007/807

COUNSEL: G J Jones (Applicant) V Lydiard (Crown)

SOLICITORS: AKN & Associates (Applicant) Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/3226

LOWER COURT JUDICIAL OFFICER: Sides DCJ

LOWER COURT DATE OF DECISION: 4 December 2006

IN THE COURT OF CRIMINAL APPEAL 2007/807

McCLELLAN CJ at CL HISLOP J SMART AJ

THURSDAY 24 MAY 2007 Vu Van VU v R Judgment 1 McCLELLAN CJ at CL: In this matter the applicant pleaded guilty to one count of cultivating a commercial quantity of a prohibited plant, contrary to s 23(2) of the Drugs Misuse and Trafficking Act 1985. The maximum penalty for that offence is imprisonment for fifteen years. 2 The applicant was sentenced on 4 December 2006 to imprisonment, comprising a non-parole period of eighteen months to commence on 14 August 2006 and expire on 13 February 2008, with a balance of term of twelve months to expire on 13 June 2009. 3 The sentencing judge made findings in relation to the relevant facts and gave consideration to the leniency which might be afforded to the applicant by reason of his plea of guilty. His Honour found that that plea was entered at an early time and from his Honour's remarks, it may have been expected that the 25% discount considered in Thomson v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 for a guilty plea may be appropriate. 4 As it happens the sentence which his Honour imposed reflects a discount of only something in the order of 6%, having regard to the starting point of the sentence which his Honour identified. The applicant comes before this Court complaining that, having regard to his Honour's finding, the full 25% discount should have been allowed. The Crown does not take issue with that submission and accepts that not only should that discount have been allowed, but the sentence should be adjusted to accommodate it. 5 In my opinion, if an adjustment is made the sentence would nevertheless be appropriate in all the circumstances of the offence and I would propose accordingly that this Court quash the sentence imposed in the District Court and re-sentence the applicant to a non-parole period of fourteen months, to commence on 14 August 2006 and expire on 13 October 2007, being a term of fourteen months, and a further ten months to expire on 13 August 2008. 6 HISLOP J: I agree. 7 SMART AJ: I agree. 8 McCLELLAN CJ at CL: Accordingly, those orders are the orders of the court. **********