Kieawkaew v The Queen - [2016] VSCA 269

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0154

ESMA KIEAWKAEW	Applicant
v
THE QUEEN	Respondent

S APCR 2016 0159

HONG QUAN NGUYEN	Applicant
v
THE QUEEN	Respondent

JUDGES:	REDLICH and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 October 2016
DATE OF JUDGMENT:	16 November 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 269
JUDGMENT APPEALED FROM:	DPP v Kieawkaew and Nguyen [2016] VCC 1016 (Judge Hampel)

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CRIMINAL LAW – Application for leave to appeal against sentence – Applicant Kieawkaew sentenced to 3 years’ imprisonment for cultivating a narcotic plant in a commercial quantity and, with cumulation for other charges, to total effective sentence of 3 years and 3 months’ imprisonment with non-parole period of 1 year and 6 months – Crown concessions that sentence for cultivation charge manifestly excessive and that sentence on a summary charge erroneous due to judge being misinformed about maximum penalty – Applicant Kieawkaew resentenced to 2 years and 6 months’ imprisonment on cultivation charge – Total effective sentence of 2 years and 9 months’ imprisonment with non-parole period of 1 year and 3 months.

CRIMINAL LAW – Application for leave to appeal against sentence – Applicant Nguyen sentenced to 3 years’ imprisonment for cultivating a narcotic plant – Judge warned counsel she would not accept statements made by counsel about the respective roles of applicants regarding cultivation of narcotic plant in absence of evidence – No evidence adduced – No error by judge – Applicability of Verdins limbs 5 and 6 – Parity principle applied consequent upon resentence of applicant Kieawkaew – Applicant Nguyen resentenced to 2 years and 6 months’ imprisonment with non-parole period of 1 year and 6 months.

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APPEARANCES:	Counsel	Solicitors
For Esma Kieawkaew	Mr R W Backwell	Greg Thomas Barrister & Solicitor
For Hong Quan Nguyen	Mr J McLoughlin	Victoria Legal Aid
For the Crown	Mr B L Sonnet	Mr J Cain, Solicitor for Public Prosecutions

REDLICH JA

KYROU JA:

Introduction and summary

On 1 July 2016, the applicants, Esma Kieawkaew (now aged 39), and Hong Quan Nguyen (now aged 36), pleaded guilty to charges arising from the cultivation of cannabis at a house in Truganina which was registered in Nguyen’s name (‘Truganina property’).

Following plea hearings on 1, 6 and 13 July 2016, the applicants were sentenced on 15 July 2016[1] as follows:
[1]DPP v Kieawkaew and Nguyen [2016] VCC 1016 (‘Reasons’).

Esma KIEAWKAEW

Charge No

Offence

Maximum

Sentence

Cumulation

1 Cultivating a narcotic plant — commercial quantity [DPCSA[2] s 72A] 25 years’ imprisonment 3 years’ imprisonment Base

2 Possess a drug of dependence (methylamphetamine) [DPCSA s 73] 1 year imprisonment 1 month imprisonment as part of an aggregate for charges 2 & 3
1 month

3
Possess a drug of dependence (ecstasy) [DPCSA s 73]
1 year imprisonment 1 month imprisonment as part of an aggregate for charges 2 & 3

4 Possess unregistered general category handgun [FA[3] s 7B(1)] 7 years’ imprisonment 3 months’ imprisonment 1 month

Summary

Charge 10
Possess cartridge…

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.

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Details

Case: [2016] VSCA 269
Decision Date: 16 November 2016

CaseChat Overview and Summary

The case of Kieawkaew v The Queen involves two applicants, Kieawkaew and Nguyen, who were convicted of cultivating a narcotic plant in commercial quantities. The applicants sought leave to appeal against their sentences, arguing that they were manifestly excessive. The case was heard by the Court, which was required to decide whether the sentences imposed were appropriate, taking into account the circumstances of each case. The Court also had to consider the impact of the Crown’s concessions on the applicants’ sentences.

The legal issues before the Court included whether the original sentences were manifestly excessive and whether the Crown’s concessions should be accepted. The Court had to consider the principles of sentencing, including the need for parity between co-offenders, and the need to ensure that sentences were proportionate to the offending. The Court also had to consider the impact of the Crown’s concessions on the applicants’ sentences and whether any errors by the sentencing judge warranted a re-sentencing.

The Court found that the original sentence imposed on Kieawkaew was manifestly excessive and that the sentence on the summary charge was erroneous due to the judge being misinformed about the maximum penalty. The Court accepted the Crown’s concessions and resentenced Kieawkaew to 2 years and 6 months’ imprisonment on the cultivation charge, resulting in a total effective sentence of 2 years and 9 months’ imprisonment with a non-parole period of 1 year and 3 months. The Court also found that there was no error by the sentencing judge in relation to Nguyen’s sentence, but applied the parity principle consequent upon the re-sentencing of Kieawkaew and resentenced Nguyen to 2 years and 6 months’ imprisonment with a non-parole period of 1 year and 6 months.

The Court granted leave to appeal against sentence for both applicants and ordered that their sentences be varied as set out above.

Orders