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Le v The Queen

Le v The Queen

Case [2021] VSCA 220 12 August 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0109

KHOA MINH LE	Appellant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 August 2021
DATE OF JUDGMENT:	12 August 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 220
JUDGMENT APPEALED FROM:	[2020] VCC 504 (Judge Quin)

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CRIMINAL LAW – Appeal – Sentence – Cultivating commercial quantity of cannabis – Sentence of 5 years’ imprisonment – Trafficking cannabis – Sentence of 6 months’ imprisonment – Theft of electricity charge – Sentence of 6 months’ imprisonment – Whether manifestly excessive – No sentencing error – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms G Connelly	Valos Black and Associates
For the Respondent	Mr J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

I agree with Niall JA, whose reasons I have had the benefit of reading in draft.

NIALL JA:

The appellant pleaded guilty in the County Court on 26 March 2020 to cultivating not less than a commercial quantity of cannabis[1] (charge 1); one charge of trafficking cannabis[2] (charge 2); and one charge of theft[3] of electricity (charge 3). He also pleaded guilty to five related summary offences: three charges of possessing a prohibited weapon[4] (summary charges 5, 6 and 7); one charge of possessing cartridge ammunition[5] (summary charge 8); and one charge of dealing with property suspected of being proceeds of crime[6] (summary charge 12). All of the charges arose from police finding drugs and other items at the appellant’s home and shop in July 2019.
[1]Drugs, Poisons and Controlled Substances Act 1981 s 72A. The maximum penalty is 25 years’ imprisonment.
[2]Drugs, Poisons and Controlled Substances Act 1981 s 71AC(1). The maximum penalty is 15 years’ imprisonment.
[3]Crimes Act 1958 s 74(1). The maximum penalty is 10 years’ imprisonment.
[4]Control of Weapons Act 1990 s 5AA. The maximum penalty is 240 penalty units or two years’ imprisonment.
[5]Firearms Act 1996 s 124. The maximum penalty is 40 penalty units.
[6]Crimes Act 1958 s 195. The maximum penalty is two years’ imprisonment.

On 24 April 2020, the sentencing judge imposed a sentence of five years’ imprisonment on charge 1; six months’ imprisonment on charge 2; and six months’ imprisonment on charge 3. The judge also imposed a sentence of three months’ imprisonment on the summary proceeds of crime charge, and seven days’ imprisonment on each weapons charge.[7] Two months of the sentence on each of the trafficking and theft charges, and one month of the sentence on the proceeds of crime charge, were ordered to be served cumulatively upon the sentence on the cultivation charge. The total effective sentence thus produced was five years and five months’

imprisonment, upon which the judge fixed a non-parole period of three years.[8]

[7]The appellant was convicted and discharged on the ammunition charge.

[8]Pursuant to s 6AAA of the Sentencing Act 1991 the judge declared that, but for the plea of guilty, she would have…

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 Le v The Queen

Details

AGLC: Le v The Queen [2021] VSCA 220
Case: [2021] VSCA 220
Decision Date: 12 August 2021

CaseChat Overview and Summary

The appeal was brought by the defendant, Le, against a decision of the lower court in relation to the sentence imposed. Le was found guilty of cultivating a commercial quantity of cannabis, trafficking cannabis, and stealing electricity. The lower court sentenced Le to 5 years’ imprisonment for cultivating a commercial quantity of cannabis, 6 months’ imprisonment for trafficking cannabis, and a concurrent 6 months’ imprisonment for stealing electricity. The appeal was brought on the basis that the sentence was manifestly excessive.

The primary legal issue for the court to consider was whether the sentence imposed by the lower court was manifestly excessive. The court was required to consider the principles of sentencing, including the seriousness of the offences, the culpability of the offender, and the need for deterrence and rehabilitation. The court was also required to consider whether there was any sentencing error that warranted an appeal.

The court found that there was no sentencing error and that the sentence imposed was not manifestly excessive. The court considered the seriousness of the offences, the culpability of the offender, and the need for deterrence and rehabilitation. The court found that the sentence imposed was appropriate and proportionate to the offences committed. The court also found that there was no error in the sentencing process and that the appeal was without merit. The appeal was therefore dismissed.

No further orders were made by the court. The sentence imposed by the lower court stood.

Orders