Phan v R [2020] NSWCCA 168

Phan v R [2020] NSWCCA 168

The sentencing judge erred to the extent that he attributed to the applicant responsibility for the theft of electricity and for a joint criminal enterprise encompassing the whole cannabis cultivation operation, because those findings were not open on the evidence. However, on resentencing the applicant's objective criminality remained below midrange but significantly above that of Le, given his activities at two premises, hiring vehicles, transporting items or equipment, paying rent, hiring storage facilities and acting in a role of some importance to the cultivation activity. The parity ground failed because the applicant's role was materially more significant than Le's crop-sitting...

Jurisdiction
Australia
Judgment Date
23 July 2020
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal From a District Court of NSW Sentence Dated 2 October 2019
Outcome
Leave to appeal granted; appeal dismissed; no lesser sentence warranted in law.
Legal Topics
['knowingly Take Part in Cultivation of Prohibited Plants' 'commercial Quantity and Large Commercial Quantity Cannabis Cultivation' 'participate in a Criminal Group on a Form 1' 'objective Seriousness' 'parity Principle' 'aggregate Sentence' 'manifest Excess' 'resentencing']
['criminal Law' 'sentencing' 'drug Offences'] ['knowingly Take Part in Cultivation of Prohibited Plants' 'commercial Quantity and Large Commercial Quantity Cannabis Cultivation' 'participate in a Criminal Group on a Form 1' 'objective Seriousness' 'parity Principle' 'aggregate Sentence' 'manifest Excess' 'resentencing']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal From a District Court of NSW Sentence Dated 2 October 2019

Legal Issues

  1. 1 ['Whether the sentencing judge erred in assessing the objective seriousness of the offences by attributing responsibility for electricity theft and the broader joint criminal enterprise to the applicant.' 'Whether the parity principle was breached by imposing an indicative sentence for the Carlingford offence greater than that imposed on co-offender Le.' 'Whether the aggregate sentence was manifestly excessive or, on resentencing, a lesser sentence was warranted in law.']

Ratio Decidendi

The sentencing judge erred to the extent that he attributed to the applicant responsibility for the theft of electricity and for a joint criminal enterprise encompassing the whole cannabis cultivation operation, because those findings were not open on the evidence. However, on resentencing the applicant's objective criminality remained below midrange but significantly above that of Le, given his activities at two premises, hiring vehicles, transporting items or equipment, paying rent, hiring storage facilities and acting in a role of some importance to the cultivation activity. The parity ground failed because the applicant's role was materially more significant than Le's crop-sitting...

Court Disposition

Leave to appeal granted; appeal dismissed; no lesser sentence warranted in law.

Orders

  • ['Leave to appeal is granted.' 'The appeal is dismissed.']