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Nguyen v The Queen

Nguyen v The Queen

Case [2021] VSCA 346 10 December 2021

Appeal

Sentencing

General Deterrence

Hydroponic Cultivation of Cannabis

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0122

DUC MINH NGUYEN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and MACAULAY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 October 2021
DATE OF JUDGMENT:	10 December 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 346
JUDGMENT APPEALED FROM:	[2021] VCC 1309 (Judge Smith)

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CRIMINAL LAW – Appeal – Sentence – Cultivating narcotic plants – Sentence of 18 months’ imprisonment with 12 months non-parole period – Whether manifestly excessive – Removal of cultivation equipment to avoid detection – Extra-curial punishment – Matamata v The Queen [2021] VSCA 253, Guden v The Queen (2010) 28 VR 288 considered – Leave to appeal refused – Drugs, Poisons and Controlled Substances Act1981, s 72B.

CRIMINAL LAW – Sentence – Sentencing principles – General deterrence – Hydroponic cultivation of cannabis – Whether type of offending more prevalent – Whether sentences effective in deterring potential offenders – Need for Government to publicise penal consequences – Need for change in sentencing practice – DPP v Russell (2014) 44 VR 471 referred to.

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APPEARANCES	Counsel	Solicitors
For the Applicant	Mr R Melasecca	Melasecca Kelly & Zayler
For the Respondent	Mr J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
MACAULAY AJA:

Introduction

The applicant was sentenced in the County Court on 7 September 2021 to 18 months’ imprisonment with a non-parole period of 12 months, having pleaded guilty to one charge of cultivating narcotic plants, namely Cannabis L, contrary to s 72B of the Drugs, Poisons and Controlled Substances Act1981.[1]
[1]DPP v Nguyen [2021] VCC 1309 (‘Reasons’).

He seeks leave to appeal his sentence on the sole ground[2] that the sentence imposed is manifestly excessive having regard to a combination of factors, namely:
[2]Other grounds set out in the Notice of Application for Leave to Appeal (ie, specific error grounds for breach of the principle of parity, insufficient regard to the principles set out in R v Verdins (2007) 16 VR 269; [2007] VSCA 102 and insufficient regard to the prospect of deportation) were abandoned.

(a) the prosecution accepted that a combination sentence (ie, a custodial sentence and a community correction order (‘CCO’)) was within range;

(b) the applicant’s role in the offending was limited in time and fact;

(c) the applicant had suffered extra-curial punishment as the result of an unprovoked stabbing while on remand;

(d) the applicant was diagnosed with post-traumatic stress disorder and adjustment disorder with anxiety and depression; and

(e) the sentencing judge gave insufficient weight to the sentencing purpose of rehabilitation.

For the reasons that follow, we refuse leave to appeal.

Background

On the morning of 12 October 2020, Victoria Police executed a search warrant at a residential property at Point Cook where the applicant and a co-offender were found inside the main bedroom of the premises. Upon the search being conducted, a total of 142 cannabis plants weighing a total of 31.52 kg were located at the premises. Ninety-two…

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 v The Queen

Details

AGLC: Nguyen v The Queen [2021] VSCA 346
Case: [2021] VSCA 346
Decision Date: 10 December 2021

CaseChat Overview and Summary

The case of Nguyen v The Queen involved the appellant, who was convicted for cultivating narcotic plants, specifically cannabis, under the Drugs, Poisons and Controlled Substances Act 1981. The appellant was sentenced to 18 months' imprisonment with a non-parole period of 12 months. The decision was appealed on the grounds that the sentence was manifestly excessive. The appellant argued that the sentence failed to consider several mitigating factors, including the removal of cultivation equipment to avoid detection and the extra-curial punishment already endured. The court was required to consider whether the sentence imposed was appropriate and whether it served the purposes of general deterrence and specific deterrence.

The legal issues central to the appeal were whether the sentence imposed was manifestly excessive and whether the sentence appropriately reflected the circumstances of the case, including the nature and context of the offending. The appellant's counsel argued that the sentence did not adequately consider the appellant's actions to mitigate the risk of detection and the extra-curial punishment already faced. The court considered relevant authorities, including Matamata v The Queen and Guden v The Queen, to determine the appropriate weight to be given to these factors. The court also examined whether the sentence effectively served the principles of general deterrence, particularly in the context of hydroponic cultivation of cannabis, and whether there was a need for the Government to publicise the penal consequences of such offences more widely.

In dismissing the appeal, the court held that the sentence was not manifestly excessive. The court found that the sentence appropriately reflected the seriousness of the offence and the need for general deterrence. The court also considered the prevalence of hydroponic cannabis cultivation and the effectiveness of current sentences in deterring potential offenders. The court concluded that the appellant's actions to mitigate detection did not warrant a significantly reduced sentence, and the extra-curial punishment already faced was properly considered. The court further held that the appellant had not demonstrated that the sentence failed to serve the purposes of general deterrence or that there was a need for a change in sentencing practice. The court found that the sentence was proportionate and appropriate, and therefore, the appeal was dismissed.

The court did not make any further orders beyond dismissing the appeal and upholding the original sentence. The appellant remained sentenced to 18 months' imprisonment with a non-parole period of 12 months.

Orders