Ta and Nguyen v R [2011] NSWCCA 32

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ta and Nguyen v R [2011] NSWCCA 32 Hearing dates: 25 November 2010 Decision date: 04 March 2011 Before: James J at 1 Hall J at 138 Price J at 139 Decision: In the case of each appellant - 1. Appeal against conviction is dismissed. 2. Leave to appeal against sentence is granted. 3. Appeal against sentence is allowed. 4. Quash the sentence imposed by the sentencing judge. 5. In lieu thereof, sentence the appellant to a non-parole period of 3 1/2 years commencing on 27 September 2009 and a balance of the term of 2 1/2 years. The earliest date on which the appellant will be eligible for release on parole will be 26 March 2013. Catchwords: CRIMINAL LAW - knowingly concerned in cultivation of large commercial quantity of cannabis plants - discharge of jury - possibly prejudicial evidence effectively withdrawn by trial judge from jury's consideration - sentencing - aggravating factors in s 21A(2)(e), s 21A(2)(i) and s 21A(2)(n) of Crimes (Sentencing Procedure) Act - wrongly found by sentencing judge - these factors inherent in offence - applicants re-sentenced Legislation Cited: Drug Misuse and Trafficking Act Criminal Procedure Act - s 281 Evidence Act - ss 37, 37(1)(c), Part 3.3 Criminal Appeal Act - s 6(3) Crimes (Sentencing Procedure) Act - s 21A(2) Cases Cited: Crofts v The Queen (1996) 186 CLR 427 Weissensteiner v The Queen (1993) 178 CLR 217 Azzopardi v the Queen (2001) 205 CLR 50 Olbrich v The Queen (1999) 199 CLR 270 RPS v The Queen (2000) 199 CLR 620 R v Miller (2003) QCA 404 Elyard v R (2006) NSWCCA 43 Baxter v R (2007) 173 A Crim R 284 Texts Cited: Cross on Evidence 7th Australian Edition para [17150] page 477 Category: Principal judgment Parties: Thi Dung TA (Appellant) Phi Hung NGUYEN (Appellant) Regina (Respondent) Representation: Counsel: L Lamprati SC (Crown) T Gartelmann (Ta) I Nash (Nguyen) Solicitors: S Kavanagh (Crown) S O'Connor (Appellants) File Number(s): 2008/5844 (Ta) 2008/5846 (Nguyan) Decision under appeal Date of Decision: 2009-10-01 00:00:00 Before: Bennett DCJ File Number(s): 2008/5844 2008/5846