SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0107
| HUNG VAN NGUYEN | Appellant |
| v | |
| THE QUEEN | Respondent |
S APCR 2018 0115
| GIANG DUC PHAM | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 December 2018 |
| DATE OF JUDGMENT: | 4 December 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 322 |
| JUDGMENT APPEALED FROM: | DPP v Nguyen; DPP v Pham (Unreported, County Court of Victoria, Judge McInerney, 2 May 2018) |
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CRIMINAL LAW – Appeal – Sentence – Cultivating a narcotic plant (cannabis) in quantity not less than commercial quantity – Sentences of 6 years’ imprisonment imposed on each appellant – Manifest excess – Whether sentences manifestly excessive – Crop sitters – Early pleas of guilty – No prior convictions – Sentences manifestly excessive – Parity – Whether imposition of same sentences infringed parity principle – Parity error not made out – Appeals allowed on manifest excess grounds – Appellants resentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant, Nguyen | Mr C K Wareham | Paul Vale Criminal Law |
| For the Appellant, Pham | Mr P Doyle | McNamaras Barristers & Solicitors |
| For the Respondent | Mr J C J McWilliams | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA:
On 20 April 2018, the appellants (Nguyen and Pham) pleaded guilty in the County Court to one charge of cultivating a narcotic plant (cannabis) in a quantity not less than the commercial quantity applicable to that narcotic plant. On the same day, the appellant Nguyen pleaded guilty to charges of using a false document and possessing child pornography, and the appellant Pham pleaded guilty to a charge of cultivating a narcotic plant (cannabis).
On 2 May 2018, the appellants were sentenced as follows:
The appellant Nguyen
Charge on Indictment H11378817 Offence Maximum Sentence Cumulation 1. Use a false document contrary to s 83A of the Crimes Act 1958 10 years 3 months Nil 2. Cultivate narcotic plant of a commercial quantity contrary to s 72A Drugs, Poisons and Controlled Substances Act 1981 25 years 6 years Base sentence 3. Possession of Child Pornography contrary to
s 70(1) of the Crimes Act 195810 years 3 months 3 months Total Effective Sentence: 6 years and 3 months Non-Parole Period: 4 years and 6 months Pre-sentence Detention Declared: 350 days
The appellant Pham
Charge on Indictment H11379537 Offence Maximum Sentence Cumulation 1. Cultivate narcotic plant of a commercial quantity contrary to s 72A Drugs, Poisons and Controlled Substances Act 1981 25 years 6 years Base sentence 2. Cultivate narcotic plant contrary to s 72B Drugs, Poisons and Controlled Substances Act 1981 15 years 1 year 3 months Total Effective Sentence: 6 years and 3 months Non-Parole Period: 4 years and 6 months Pre-sentence Detention Declared: 350 days
On 17 August 2018, the appellants were granted leave to appeal against their sentences. Their grounds of appeal are as follows:
The appellant Nguyen:
When regard is had to the following circumstances:
·the plea of guilty and the stage at…
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- Case
- [2018] VSCA 322
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the sentences imposed on the appellants were manifestly excessive and whether the imposition of the same sentences on both appellants infringed the parity principle. The court needed to consider the nature of the offence, the role of the appellants as crop sitters, their early pleas of guilty, and the absence of prior convictions. The court also needed to assess whether the sentences were proportionate to the offence and whether the parity principle was respected in sentencing.
The High Court found that the sentences imposed on Nguyen and Pham were manifestly excessive. The court took into account the appellants' roles as crop sitters, their early pleas of guilty, and the absence of prior convictions. The court determined that the sentences did not reflect the appropriate level of culpability and deterrence and that the principle of parity was not infringed by the imposition of identical sentences on both appellants. The appeals were allowed on the grounds of manifest excess, and the appellants were resentenced.
In light of the court's findings, the High Court ordered that the appellants, Nguyen and Pham, be resentenced. The specifics of the new sentences were to be determined by the lower court, taking into account the factors considered by the High Court. The court's decision ensured that the sentences were proportionate to the offence and that the principle of parity was respected in sentencing.
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Evidence
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Decision
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Ratio Decidendi
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