Nguyen v The Queen

Case [2020] VSCA 76


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:

  1. 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’).

  1. 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.

  1. 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.

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

Charges 1 to 9 and 12

  1. 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.

  1. 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…

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Nguyen v The Queen [2020] VSCA 76
Case
[2020] VSCA 76
Decision Date

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

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Background

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Evidence Before The Court

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Decision

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