Nguyen and Pham v The Queen - [2018] VSCA 322

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 1958 10 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…

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: [2018] VSCA 322
Decision Date: 4 December 2018

CaseChat Overview and Summary

The appeal before the court involved two appellants, Nguyen and Pham, who were sentenced to six years' imprisonment each for cultivating a commercial quantity of cannabis. The case was heard in the High Court of Australia, which was tasked with determining whether the sentences were manifestly excessive and whether the parity principle was infringed by the imposition of identical sentences on both appellants.

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.

Orders