Bui v R [2008] NSWCCA 314

New South Wales Court of Criminal Appeal

CITATION: Bui v R [2008] NSWCCA 314

HEARING DATE(S): 9 December 2008

JUDGMENT DATE: 18 December 2008

JUDGMENT OF: McClellan CJ at CL at 1; Howie J at 2; Hislop J at 3

DECISION: Leave to appeal granted; appeal dismissed.

LEGISLATION CITED: Crimes Act, 1900 Drug Misuse and Trafficking Act, 1985

CASES CITED : Markarian v R [2005] HCA 25; (2005) 228 CLR 357 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704

PARTIES: Van Phinh Bui v R

FILE NUMBER(S): CCA 2007/11465

COUNSEL: G. Wendler (Applicant) N. Norman (Crown)

SOLICITORS: AKN and Associates (Applicant) Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/21/3268

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

IN THE COURT OF CRIMINAL APPEAL 2007/11465

McCLELLAN CJ at CL HOWIE J HISLOP J

Thursday 18 December 2008 VAN PHINH BUI v R Judgment 1 McCLELLAN CJ at CL: I agree with Hislop J. 2 HOWIE J: I agree with Hislop J. 3 HISLOP J: The applicant pleaded guilty in the District Court to an indictment in the following terms: "[The applicant] on 15 March 2007 at Bradbury in the State of New South Wales cultivated a prohibited plant, namely cannabis plant, cultivated by enhanced indoor means, being a quantity of 281 plants, which is not less than the large commercial quantity applicable to cannabis plant cultivated by enhanced indoor means." 4 The applicant was convicted and sentenced on 7 February 2008 in respect of that offence to a non parole period of imprisonment of three years to date from 15 March 2007 and conclude on 14 March 2010 with a further parole period of two years to date from 15 March 2010 and conclude on 14 March 2012. In sentencing the applicant, the sentencing judge took into account on a Form 1 an offence of possessing a prohibited drug, namely 168 grams of cannabis leaf. 5 The applicant has sought leave to appeal against sentence. The grounds of appeal are: