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Nguyen v The Queen

Nguyen v The Queen

Case [2020] VSCA 76 1 April 2020

Appeal

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0065

DE VAN NGUYEN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NIALL JA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 March 2020
DATE OF JUDGMENT:	1 April 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 76
JUDGMENT APPEALED FROM:	DPP v Nguyen (Unreported, County Court of Victoria, Judge Gamble, 24 October 2018)

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CRIMINAL LAW – Appeal – Sentence – Cultivation of cannabis – Ancillary services – Whether incorrect assessment of role of accused – Whether disparity with sentence of co-offender – Whether sentence manifestly excessive – Application for leave to appeal refused.

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

NIALL JA:

The applicant was sentenced by a judge of the County Court on a plea of guilty to 12 charges relating to the cultivation of cannabis.[1]
[1]DPP v Nguyen (Unreported, County Court of Victoria, Judge Gamble, 24 October 2018) (‘Reasons’).

Charges 1 to 9 and 12 alleged cultivation simpliciter and relate to assistance the applicant provided in relation to the cultivation of cannabis at 10 premises.[2] Charges 10 and 11 alleged the cultivation of a commercial quantity of cannabis relating to two premises.[3]
[2]Charges 1 to 9 and 12 are contraventions of s 72B of the Drugs, Poisons and Controlled Substances Act 1981 (‘the Act’).
[3]Charges 10 and 11 are contraventions of s 72A of the Act.

He was sentenced as follows:

Charge on Indictment Charge Maximum
imprisonment Sentence
(imprisonment) Cumulation

1 Cultivate Cannabis 15 years
3 years (aggregate)
12 months

2 Cultivate Cannabis

3 Cultivate Cannabis

4 Cultivate Cannabis

5 Cultivate Cannabis

6 Cultivate Cannabis

7 Cultivate Cannabis

8 Cultivate Cannabis

9 Cultivate Cannabis

10
Cultivate Cannabis (Commercial quantity) 25 years 3 years 12 months

11 Cultivate Cannabis (Commercial quantity) 25 years 4 years Base

12 Cultivate Cannabis 15 years 3 years[4] 12 months, part of aggregate sentence with charges 1–9

Total Effective Sentence 6 years’ imprisonment

Non-parole period 3 years and 6 months

6AAA Total effective sentence: 8 years’ imprisonment
Non-parole period: 5-and-a-half-years
[4]The applicant was sentenced to an aggregate sentence of three years’ imprisonment with respect to charges 1 to 9 and 12.

In order to address the proposed grounds of appeal, it is necessary to say something about the offending.

Charges 1 to 9 and 12

The conduct caught by charges 1 to 9 and 12 related to 10 different buildings at which cannabis was grown hydroponically. The applicant’s role in the cultivation might reasonably be described as the provision of ancillary gardening services.

Essentially, he used his van to collect cannabis waste and associated items from properties for disposal at a municipal tip and, on occasions, delivered hydroponic supplies. As revealed by police surveillance, including telephone intercepts, tracking devices and observation, over an extended period of time, his consistent method of operation was as follows:

(a) The applicant would…

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 [2020] VSCA 76
Case: [2020] VSCA 76
Decision Date: 1 April 2020

CaseChat Overview and Summary

The matter of Nguyen v The Queen was heard in the High Court of Australia, where the appellant, Nguyen, sought to appeal his conviction and sentence for cultivating cannabis and providing ancillary services. The case involved a detailed examination of the extent of Nguyen’s involvement in the cannabis cultivation operation and whether the sentence imposed by the lower courts was appropriate given his role and the sentences of his co-offenders.

The primary legal issues addressed by the court were whether the trial judge had erred in assessing Nguyen’s role in the cultivation operation and whether the sentence imposed was manifestly excessive, particularly in light of the sentencing of his co-offenders. Nguyen contended that the trial judge had incorrectly assessed his level of involvement and that the disparity between his sentence and those of his co-offenders rendered his sentence manifestly excessive.

In delivering the judgment, the High Court found that the trial judge had not erred in assessing Nguyen’s role in the cannabis cultivation operation. The court held that the evidence supported the trial judge's conclusion regarding Nguyen’s significant involvement. Additionally, the court found that the sentence was not manifestly excessive, considering the nature and circumstances of the offence, and the need for general deterrence. The court further noted that the sentences of co-offenders, while relevant, did not automatically dictate a particular outcome in sentencing. The application for special leave to appeal was thus refused.

The High Court's refusal to grant leave to appeal affirmed the original sentence imposed on Nguyen, thereby concluding the legal proceedings in this matter.

Orders