Nguyen (a pseudonym) v The King - [2022] VSCA 284

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0082

GRAHAM NGUYEN (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]Pseudonyms have been used in the place of the names of the applicant, other individuals and places because the applicant offered to provide assistance to authorities.

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JUDGES:	KYROU JA, KIDD and LASRY AJJA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 November 2022
DATE OF JUDGMENT:	16 December 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 284
JUDGMENT APPEALED FROM:	[2021] VCC 1875 (Judge Cahill)

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CRIMINAL LAW – Appeal – Sentence – Application for leave to appeal against sentence – Cultivation of commercial quantity of narcotic plant – Trafficking in drug of dependence – Offer to assist authorities – Total effective sentence of 4 years’ imprisonment, 2 years and 6 months non‑parole period – Whether judge gave insufficient discount for offer to assist authorities – Leave to appeal refused.

Sentencing Act 1991, s 5(2H)(a).

Haamid v The Queen [2018] VSCA 330, Farmer v The Queen [2020] VSCA 140, applied.

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Counsel
Applicant:		Mr TR Marsh
Respondent:		Ms DI Piekusis KC
Solicitors
Applicant:	Giorgianni & Liang Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
KIDD AJA
LASRY AJA:

Introduction and summary

On 11 June 2021, following a trial before a judge sitting alone in the County Court, the applicant, now aged 47 years, was found guilty of one charge of cultivating a commercial quantity of a narcotic plant[2] and one charge of trafficking in a drug of dependence.[3]
[2]Contrary to Drugs, Poisons and Controlled Substances Act 1981, s 72A.
[3]Contrary to Drugs, Poisons and Controlled Substances Act, s 71AC(1).
Following a plea hearing which lasted over four days, the applicant was sentenced on 26 November 2021 as follows:

Charge on Indictment

Offence

Max Penalty

Sentence

Cumulation

1 Cultivating a commercial quantity of a narcotic plant (cannabis) 25 years 3 years and 9 months Base

2 Trafficking in a drug of dependence (cannabis) 15 years 10 months 3 months

Total Effective Sentence: 4 years’ imprisonment

Non-Parole Period: 2 years and 6 months

The applicant’s co-offender, Mr Kim,[4] pleaded guilty in the Magistrates’ Court to a single charge of trafficking in a drug of dependence, being cannabis. On 30 September 2020, he was sentenced to 8 months’ imprisonment.
[4]A pseudonym.
The applicant has applied to this Court for leave to appeal against sentence on one ground:[5]
The learned sentencing judge erred in finding that the Applicant was only entitled to a ‘modest discount on sentence’ for providing information which could have assisted authorities.
[5]In these reasons, the proposed ground of appeal is referred to as the ground of appeal.

Extension of time

The application for leave to appeal was not filed within the time provided by s 279(1) of the Criminal Procedure Act 2009, being 28 days of the date of sentence. That would have required the notice to have been filed by 24 December 2021.
It was not until 28 June 2022 that the applicant’s…

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 Nguyen (a pseudonym) v The King

Details

AGLC: Nguyen (a pseudonym) v The King [2022] VSCA 284
Case: [2022] VSCA 284
Decision Date: 16 December 2022

CaseChat Overview and Summary

The matter before the court was an application by Nguyen, a pseudonymous appellant, for leave to appeal against his sentence. The appellant was found guilty of cultivating a commercial quantity of a narcotic plant and trafficking in a drug of dependence. The appellant had offered to assist the authorities in their investigation, which resulted in a reduced sentence. The total effective sentence was 4 years' imprisonment with a non-parole period of 2 years and 6 months. The appellant argued that the judge gave insufficient discount for his offer to assist authorities, thereby resulting in an excessive sentence.

The court was required to determine whether the appellant was entitled to leave to appeal against his sentence, specifically focusing on the issue of whether the judge gave insufficient discount for the appellant's offer to assist authorities. The court also had to consider the principles of sentencing as outlined in the Sentencing Act 1991, as well as relevant case law, including Haamid v The Queen and Farmer v The Queen.

The court considered the principles of sentencing and relevant case law, and found that the judge had appropriately taken into account the appellant's offer to assist authorities when determining the sentence. The court noted that the appellant's offer to assist was not a full cooperation and did not result in any significant benefits to the authorities. The court further found that the sentence imposed was not excessive, taking into account all relevant factors, including the nature and circumstances of the offence, the appellant's culpability, and the need for deterrence and denunciation. Therefore, the court refused the appellant's application for leave to appeal against his sentence.

The court's final order was that the appellant's application for leave to appeal against his sentence was refused. The appellant was not granted leave to appeal against his sentence, and the original sentence of 4 years' imprisonment, with a non-parole period of 2 years and 6 months, remained in place.

Orders