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Lai v The King

Lai v The King

Case [2023] VSCA 151 22 June 2023

Appeal

Sentence

Cultivating narcotic plant

Manifestly excessive

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0089

HOANG LAI	Appellant
v
THE KING	Respondent

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JUDGES:	T FORREST and OSBORN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 June 2023
DATE OF JUDGMENT:	22 June 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 151
JUDGMENT APPEALED FROM:	[2022] VCC 485 (Judge McInerney)

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CRIMINAL LAW – Appeal – Sentence – Cultivating narcotic plant in not less than a large commercial quantity – Whether total effective sentence and non-parole period manifestly excessive – Appeal dismissed.

R v Mason [2006] VSCA 55, Doan v The Queen [2010] VSCA 250, Clarkson v The Queen (2011) 32 VR 361, Nguyen v The Queen [2016] VSCA 198, Mohtadi v The Queen [2018] VSCA 238, Nguyen v The Queen [2021] VSCA 211 and Osman v The Queen [2021] VSCA 176 referred to.

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Counsel
Appellant:		Mr CK Wareham
Respondent:		Ms E Ruddle KC
Solicitors
Appellant:	Paul Vale Criminal Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

T FORREST JA
OSBORN JA:

On 7 April 2022, following a plea to one charge of cultivating a narcotic plant in not less than a large commercial quantity, the appellant was sentenced to 8 years’ imprisonment.[1] A non-parole period of 5 years and 6 months was fixed. The maximum penalty for this offence is life imprisonment.
[1]DPP v Lai [2022] VCC 485 (Judge McInerney) (‘Reasons’).
On the same day, a co-offender Phong Hoang Pham, was sentenced to 4 years and 6 months’ imprisonment with a non-parole period of 3 years. He had pleaded guilty to one charge of cultivating a narcotic plant in not less than a commercial quantity. This is, obviously, a lesser charge than the appellant’s large commercial quantity charge, and no contention of sentencing disparity is advanced.
The appellant’s sole ground of appeal is expressed as follows:
Ground 1:      In all the circumstances, and when regard is had to:
a)    The applicant’s plea of guilty,
b)    the perceptible discount to be afforded to pleas of guilty during the COVID-19 pandemic,
c)    the applicant’s previous good character and the absence of a criminal history,
d)    the applicant’s prospects of deportation,
e)    the additional burden of custody that results
is productive of a total effective sentence and non-parole period that is manifestly excessive.
The appellant was granted leave to appeal on this ground by a judge of this Court on 9 November 2022.

Circumstances of the offending

We shall set out these circumstances as accurately recorded in the leave reasons:[2]
The applicant, now aged 39 years,[3] cultivated cannabis at two addresses, one in Truganina and another in Derrimut.
On 9 August 2021, police located 640 cannabis plants, weighing 506.88 kilograms, at the Truganina address. The next day, 10 August 2021, police located a further 712 cannabis plants…weighing 653.58 kilograms, at the Derrimut premises. Hence, the total quantity of cannabis found in aggregate was 1,352 cannabis plants, weighing 960.46 kilograms.[4]
Police located the cannabis as part of ‘Operation Crawl 2020’, an…

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 Lai v The King

Details

AGLC: Lai v The King [2023] VSCA 151
Case: [2023] VSCA 151
Decision Date: 22 June 2023

CaseChat Overview and Summary

Lai v The King is an appeal against sentence concerning the cultivation of a narcotic plant in a large commercial quantity. The appellant was convicted of this offence and sentenced to imprisonment, including a non-parole period. The Court of Appeal was tasked with determining whether the total effective sentence and the non-parole period were manifestly excessive.

The legal issues before the court were whether the total effective sentence and the non-parole period were manifestly excessive and disproportionate. The court considered the principles of sentencing for drug offences, the appellant's culpability, and the need to deter and protect the community. It also assessed the appellant's personal circumstances and any relevant mitigating factors.

In dismissing the appeal, the court found that the total effective sentence and the non-parole period were not manifestly excessive. The court noted the significant quantity of the drug involved and the appellant's role in the cultivation. It considered the appellant's criminal history and concluded that the sentence reflected the seriousness of the offence. The court also found that the trial judge had appropriately balanced the various sentencing principles and objectives.

The appeal was dismissed, and the original sentence was upheld.

Orders