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Dang v The Queen

Dang v The Queen

Case [2020] VSCA 24 19 February 2020

Appeal

Sentence

Cultivating a commercial quantity of narcotic plant (cannabis)

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0076

HIEU TRAN DANG	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NIALL and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 February 2020
DATE OF JUDGMENT:	19 February 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 24
JUDGMENT APPEALED FROM:	DPP v Dang (Unreported, County Court of Victoria, Judge Mullaly, 29 January 2019)

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CRIMINAL LAW – Appeal – Sentence – Cultivating a commercial quantity of narcotic plant (cannabis) – Whether sentence manifestly excessive – Involvement slightly above crop sitter - Sentence not wholly outside the permissible range – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr H A Rattray	Victoria Legal Aid
For the Respondent:	Ms G A Coghlan	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
WEINBERG JA:

The applicant pleaded guilty in the County Court to one charge of cultivation of a commercial quantity of cannabis and one charge of theft relating to the theft of electricity used in the cultivation of certain of the plants.

The cultivation of the cannabis occurred at two premises; the first in Norlane and the second in Winchelsea. As is common for offending of this kind, three aspects featured prominently on the plea and in the formulation of sentence: the quantity of the drugs, the degree of sophistication of the operation and the role of the applicant. There were also a number of features personal to the applicant, including his early plea of guilty, which served to moderate the sentence and to which we shall return.

On the first aspect, 29.76 kg from 48 plants were located at the Norlane premises and 26.86 kg from 95 plants were located in the Winchelsea premises. Bearing in mind that the applicant pleaded guilty to a single charge covering the two locations, the total weight of cannabis was 56.62 kg from 143 plants. A commercial quantity of cannabis is 25 kg or 100 plants.[1]
[1]Drugs, Poisons and Controlled Substances Act 1981, s 70(1) and Schedule 11, Part 2.

The operation at each of the two premises was relatively intensive. The cultivation had a level of sophistication that is common to these types of operations. It involved extensive lighting,[2] fans and watering systems, and the electricity meters were bypassed to steal electricity and avoid detection.
[2]29 globes, 29 shrouds and 29 transformers were found at the Norlane premises and 39 transformers, 16 shrouds and 16 globes were found at the Winchelsea premises.

The role of the applicant differed in relation to the two premises. In relation to the Winchelsea premises, it was accepted on the plea that the applicant was aware that others were cultivating cannabis and that he had assisted in preparing the dwelling for cultivation. It was not suggested that he was aware of the number of plants or the weight of the crop. On the plea, it was said from the Bar table that the applicant was living at that property, he had the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dang v The Queen

Details

AGLC: Dang v The Queen [2020] VSCA 24
Case: [2020] VSCA 24
Decision Date: 19 February 2020

CaseChat Overview and Summary

In the case of Dang v The Queen, the appellant, Dang, was convicted for cultivating a commercial quantity of cannabis. He appealed against his sentence, arguing it was manifestly excessive. The appeal was heard by the High Court of Australia. The central legal issue before the court was whether the sentence imposed on Dang for cultivating a commercial quantity of cannabis was manifestly excessive, given his role as slightly above a mere crop sitter. The court had to consider whether the sentence was within the permissible range for such an offence, and whether it was appropriate to allow an appeal against the sentence.

The court examined the principles governing the assessment of sentence in criminal cases, particularly in relation to the cultivation of commercial quantities of narcotic plants. It noted that the appellant's role was slightly above that of a crop sitter, but did not reach the level of a significant participant in the cultivation or distribution process. The court held that while the sentence might be at the higher end of the range, it was not wholly outside the permissible range. The court emphasised the importance of considering the totality of the circumstances, including the scale of the operation and the appellant’s level of involvement. The court concluded that the sentence was not manifestly excessive, and therefore the appeal against sentence was not successful.

Consequently, the High Court dismissed the appeal and refused the application for leave to appeal. The sentence imposed by the lower court was upheld as appropriate and within the permissible range for the offence committed. The court's decision underscored the need to carefully consider the individual circumstances of each case when assessing the appropriate sentence for cultivating commercial quantities of narcotic plants.

Orders