HVN v R [2007] NSWCCA 207

New South Wales Court of Criminal Appeal

CITATION: HVN v R [2007] NSWCCA 207

HEARING DATE(S): 9 July 2007

JUDGMENT DATE: 17 July 2007

JUDGMENT OF: Tobias JA at 1; Latham J at 2; Mathews AJ at 17

DECISION: 1. Applicant granted leave to appeal against his sentence; 2. Appeal dismissed

CATCHWORDS: Sentence appeal - aggregate discount for plea of guilty and assistance - no question of principle.

R v Sukkar [2006] NSWCCA 92 CASES CITED: House v The King SZ v Regina [2007] NSWCCA 19

PARTIES: HVN - Applicant Regina - Crown

FILE NUMBER(S): CCA 2007/1375

COUNSEL: Mr PG Hogan - Applicant Mr T Thorpe - Crown

SOLICITORS: Ly Lawyers - Applicant K Kavanagh - Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/3223

LOWER COURT JUDICIAL OFFICER: Maguire DCJ

LOWER COURT DATE OF DECISION: 21 December 2006

IN THE COURT OF CRIMINAL APPEAL 2007/1375

TOBIAS JA LATHAM J MATHEWS AJ

17 JULY 2007 H V N v REGINA Judgment 1 TOBIAS JA : I agree with Latham J. 2 LATHAM J : The applicant seeks leave to appeal against a sentence imposed by Maguire DCJ on 21 December 2006 following a plea of guilty to one count of Cultivate not less than a Commercial Quantity of Cannabis. The maximum penalty for that offence is 15 years imprisonment. 3 The applicant was sentenced to a non parole period of one year, commencing on 1 December 2006, with a balance of term of one year. The sentencing judge's remarks were brief, although they captured the essence of the agreed facts that became an exhibit on sentence, together with the contents of an affidavit attesting to the applicant's assistance to the authorities. It is not submitted that there was any patent error in the sentencing exercise, rather that the discount (30%) applied by the sentencing judge in order to reflect the plea of guilty and the assistance was inadequate in the circumstances. 4 The applicant leased premises in Canley Heights from September 2003 until the date of the execution of a search warrant on the premises on 2 May 2005. Police located 131 mature cannabis plants with an average length of 100 cm in a downstairs garage area and 28 large lampshades, two large air filters and 22 transformers in various locations throughout the house. Police also found 217 cannabis plants of about 20 cm in length in the upstairs rooms of the house. Technicians from Integral Energy identified the diversion of a little over $10,000 worth of electricity from the main supply. Various chemicals, fertilisers, pots and other equipment such as a surveillance camera and monitor were located during the search. 5 Police identified the fingerprint of the applicant on one of the heating lamps in one of the upstairs rooms where the younger plants were growing. The value of the drugs capable of being harvested from the plants was estimated to be not less than $696,000. In addition, 31 g of cannabis in a resealable bag was seized in the kitchen of the house.