Thi Lan NGUYEN v R [2009] NSWCCA 181

New South Wales Court of Criminal Appeal

CITATION: Thi Lan NGUYEN v R [2009] NSWCCA 181

HEARING DATE(S): 30 June 2009

JUDGMENT DATE: 14 July 2009

JUDGMENT OF: Giles JA at 1; Hidden J at 2; McCallum J at 3

1. Application for leave to appeal granted and the appeal allowed. DECISION: 2. The sentence imposed in the District Court on 2 December 2008 is quashed. 3. In lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 22 months to commence on 11 December 2007 and to expire on 10 October 2009 with a balance of term of 14 months to expire on 10 December 2010. The earliest date on which the applicant will be eligible for release to parole is 10 October 2009.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - appellant pleaded guilty to cultivation of cannabis plants by enhanced indoor means - total term of 4y with non-parole period of 2y 6m - whether cultivation by enhanced indoor means wrongly taken into account as an aggravating feature - hardship of imprisonment for a foreign national - whether sentencing Judge failed to give due weight to prospects of rehabilitation and unlikelihood of re-offending - whether sentence manifestly excessive - applicant re-sentenced to imprisonment with non-parole period of 22m and balance of term of 14m

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985

CATEGORY: Principal judgment

Bui v R [2008] NSWCCA 314 Nguyen Huu v R [2007] NSWCCA 94 Nguyen v R [2008] NSWCCA 322 R v Bloomfield (1998) 44 NSWLR 734 R v Ferrer-Esis (1991) 55 A Crim R 231 CASES CITED : R v Godden [2005] NSWCCA 160 R v Huang [2000] NSWCCA 238; [2000] 113 A Crim R 386 R v Nguyen; R v Cannistra [2006] NSWCCA 389 R v Quan [2006] NSWCCA 382 Truong v R Yang v R [2007] NSWCCA 37