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Nguyen v The Queen

Nguyen v The Queen

Case [2021] VSCA 211 4 August 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0039

MINH TRI NGUYEN	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and SIFRIS JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 May 2021
DATE OF JUDGMENT:	4 August 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 211
JUDGMENT APPEALED FROM:	DPP v Nguyen (Unreported, County Court of Victoria, Judge M Bourke, 21 November 2019)

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CRIMINAL LAW – Appeal – Sentence – Cultivating commercial quantity of cannabis – Sentence 5 years and 6 months’ imprisonment – Whether manifestly excessive – Sophisticated hydroponic operation – Operation controlled by appellant – Cultivation over 4 months in two properties – Very large quantity cultivated – Top end of quantitative scale for commercial quantity cultivation – Sentence moderate – Appeal dismissed – Inadequacy of current sentencing practices – Nguyen v The Queen [2016] VSCA 198 referred to – Drugs, Poisons and Controlled Substances Act1981 ss 72, 72A.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Giorgianni & Liang Lawyers
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P

SIFRIS JA:

Introduction

On 19 November 2019, the appellant pleaded guilty to one charge of cultivating a commercial quantity of cannabis L (‘CQ cultivation’), and two charges of theft. On 21 November 2019, following reasons for sentence,[1] the appellant was sentenced as set out in the table below.
[1]DPP v Nguyen (Unreported, County Court of Victoria, Judge M Bourke, 21 November 2019) (‘Reasons for Sentence’).

Charge	Offence	Maximum	Sentence	Cumulation
1	Cultivating a commercial quantity of a narcotic plant (cannabis L)	25 years’ imprisonment	5 years and 6 months	Base
2	Theft	10 years’ imprisonment	8 months	Nil
3	Theft	10 years’ imprisonment	6 months	Nil
Total Effective Sentence:		5 years and 6 months’ imprisonment
Non-Parole Period:		3 years
Pre-sentence Detention Declared:		377 days
6AAA Statement: 6 years, with a non-parole period of 4 years and 6 months.
Other orders: Appellant ordered to pay compensation to the sum of $29,509.21 to Energy Australia and $1,772.18 to Origin Australia. Appellant’s Byrne Street property to be forfeited to the State pursuant to the Confiscation Act 1997.

On the same day, co-offender Van Tung Le, who had earlier pleaded guilty to one charge of CQ cultivation and one charge of theft, was sentenced as follows.

Charge	Offence	Maximum	Sentence	Cumulation
1	Cultivating a commercial quantity of a narcotic plant (cannabis L)	25 years’ imprisonment	3 years and 9 months	Base
3	Theft	10 years’ imprisonment	6 months	Nil
Total Effective Sentence:		3 years and 9 months’ imprisonment
Non-Parole Period:		1 year and 8 months
Pre-sentence Detention Declared:		377 days
6AAA Statement: 5 years’ imprisonment, with a non-parole period of 3 years.

On 12 November 2020, Weinberg JA granted the appellant leave to appeal against his sentence on the following ground:[2]

The individual sentences, total effective sentence and non-parole period are manifestly excessive having regard to the principle of parity and the applicable factors in…

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 211
Case: [2021] VSCA 211
Decision Date: 4 August 2021

CaseChat Overview and Summary

The case of Nguyen v The Queen concerned an appeal by the appellant against a sentence imposed for cultivating a commercial quantity of cannabis. The appellant, Nguyen, had been found guilty of cultivating a very large quantity of cannabis over a period of four months in two separate properties, controlling a sophisticated hydroponic operation. The trial judge sentenced Nguyen to five years and six months’ imprisonment, which the appellant argued was manifestly excessive. The appeal was heard by the Victorian Court of Appeal.

The primary legal issue before the Court of Appeal was whether the sentence imposed by the trial judge was manifestly excessive. The appellant argued that the sentence did not adequately reflect the current sentencing practices and was disproportionate to the offence committed. The Court needed to assess the proportionality of the sentence in the context of the sophisticated nature of the operation, the quantity of cannabis cultivated, and the appellant's role as the controller of the operation. Additionally, the Court had to consider the adequacy of the sentencing practices under the relevant legislation.

The Court of Appeal held that the sentence imposed was not manifestly excessive. In its reasoning, the Court noted that the operation was sophisticated and involved a significant quantity of cannabis, placing it at the top end of the quantitative scale for commercial quantity cultivation. The appellant's control over the operation was also a significant aggravating factor. The Court emphasised that while the sentence was substantial, it was moderate in the context of the offence and the current sentencing practices. The Court dismissed the appeal, finding that the trial judge had properly considered the relevant factors in arriving at the sentence.

No further orders were made by the Court. The sentence of five years and six months’ imprisonment remained in place.

Orders