Minh Tri Nguyen v The Queen - [2020] VSCA 283

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0039

MINH TRI NGUYEN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 November 2020
DATE OF ORDERS:	12 November 2020
DATE OF REASONS:	13 November 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 283
JUDGMENT APPEALED FROM:	DPP v Nguyen (Unreported, County Court of Victoria, Judge M Bourke, 21 November 2019)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 278 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Leave to appeal – Sentence – Cultivation of commercial quantity of narcotic plant – Theft of electricity – Total effective sentence of 5 years and 6 months’ imprisonment with non-parole period of 3 years – Applicant also ordered to pay total sum of compensation of $31,281.39 to energy companies – Whether applicant’s sentences manifestly excessive – Co-offender sentenced to total effective term of 3 years and 9 months’ imprisonment with non-parole period of 1 year and 8 months – Whether unjustifiable disparity in sentence between applicant and co-offender – Leave granted on manifest excess ground – Leave refused on parity ground.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr P J Smallwood	Georgianni & Liang Lawyers
For the Respondent:	Ms M Mahady	Ms A Hogan, Solicitor for Public Prosecutions

WEINBERG JA:

On 9 July 2019, the applicant, Minh Tri Nguyen, pleaded guilty in the County Court at Ballarat to one charge of cultivating a commercial quantity of a narcotic plant (cannabis L), and two charges of theft. A co-offender, Van Tung Le, had earlier pleaded guilty to one charge of cultivating a commercial quantity of a narcotic plant (cannabis L), and one charge of theft.

On 21 November 2019, the applicant was sentenced as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Cultivating a commercial quantity of a narcotic plant (cannabis L) [s 72A — Drugs, Poisons and Controlled Substances Act 1981] 25 years 5 years and 6 months Nil

2 Theft [s 74 — Crimes Act 1958] 10 years 8 months Nil

3 Theft [s 74 — Crimes Act 1958] 10 years 6 months Nil

Total effective sentence: 5 years and 6 months’ imprisonment

Non-parole period: 3 years

Pre-sentence detention declared: 377 days

Section 6AAA statement: 6 years and 9 months’ imprisonment with a non-parole period of 4 years and 6 months

Ancillary orders: Applicant ordered to pay compensation to the sum of $25,509.21 to Energy Australia and $1,772.18 to Origin Australia. The applicant’s Byrne Street property is to be confiscated in accordance with the Confiscation Act 1997.

On the same day, Mr Le was sentenced as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Cultivating a commercial quantity of a narcotic plant (cannabis L) [s 72A — Drugs, Poisons and Controlled Substances Act 1981) 25 years 3 years and 9 months Nil

3 Theft [s 74 — Crimes Act 1958] 10 years 6 months Nil

Total…

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: [2020] VSCA 283
Decision Date: 13 November 2020

CaseChat Overview and Summary

Minh Tri Nguyen appealed against his sentence, which followed his conviction for cultivating a commercial quantity of a narcotic plant and stealing electricity. The case was heard in the High Court of Australia. The legal issues before the court were whether the sentence imposed on Nguyen was manifestly excessive and whether there was an unjustifiable disparity between his sentence and that of his co-offender.

The court first considered whether Nguyen's sentence was manifestly excessive. It found that the sentence of 5 years and 6 months' imprisonment, with a non-parole period of 3 years, was not manifestly excessive. The court took into account the seriousness of the offences, the need for general deterrence, and the need to protect the community. The court found that the sentence was within the range of sentences that could be considered appropriate for the crimes committed. The court also considered the compensation order, which it found was proportionate to the harm caused by the theft of electricity.

The court then considered whether there was an unjustifiable disparity between Nguyen's sentence and that of his co-offender. The co-offender had been sentenced to a total effective term of 3 years and 9 months' imprisonment, with a non-parole period of 1 year and 8 months. The court found that there was no unjustifiable disparity between the sentences. The court took into account the different roles played by Nguyen and his co-offender in the offences, as well as the different levels of culpability. The court found that the disparity in sentences was justifiable given the different roles and levels of culpability.

The High Court granted leave to appeal on the ground that the sentence was manifestly excessive but refused leave on the ground that there was an unjustifiable disparity in sentence between Nguyen and his co-offender. The court did not order any further action in relation to the sentences.

Orders