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Nguyen v The Queen

Nguyen v The Queen

Case [2019] VSCA 134 17 June 2019

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2018 0130

THANH VAN NGUYEN	Applicant
v
THE QUEEN	Respondent

S APCR 2018 0135

ANH TUAN HO	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 June 2019
DATE OF JUDGMENT:	17 June 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 134
JUDGMENT APPEALED FROM:	[2018] VCC 864 (Judge Tinney)

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CRIMINAL LAW – Sentence – Applications for leave to appeal – Cultivation of commercial quantity of narcotic plant – Applicants sentenced to 3 years and 8 months on cultivation charges – Whether applicants were mere crop sitters – Judge refusing to accept Crown concession that applicants were crop sitters – Sentencing judge giving notice to accused of non-acceptance of Crown concession – Requirements of procedural fairness complied with – No unfairness to accused – No error in judge’s fact finding – Not reasonably arguable that sentences manifestly excessive – No prospect that Court of Appeal would impose lesser sentences – Applications for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant, Nguyen	Mr C K Wareham	James Dowsley & Associates
For the Applicant, Ho	Ms G F Connelly	Greg Thomas Barrister & Solicitor
For the Respondent	Mr J McWilliams	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

On 6 June 2018, the applicants (Nguyen and Ho) 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.[1] On the same day, the applicant Nguyen pleaded guilty to an additional charge (charge 2) of resisting an emergency worker (a police officer) on duty. The maximum term of imprisonment for cultivating a narcotic plant in a quantity not less than the commercial quantity is 25 years. The maximum term of imprisonment for resisting an emergency worker on duty is 5 years.
[1]While the statement of offence in the indictment alleged that the cultivation was contrary to s 72A of the Crimes Act 1958, the offence of cultivating a narcotic plant in a commercial quantity is to be found in s 72A of the Drugs, Poisons and Controlled Substances Act 1981. In the proceedings in this Court, neither applicant took any issue with the incorrect reference in the indictment to s 72A of the Crimes Act (a non-existent provision).

After plea hearings conducted on behalf of both applicants, on 8 June 2018 the applicants were each sentenced to a term of imprisonment of 3 years and 8 months on the cultivation charges. Nguyen was sentenced to an additional one month’s imprisonment to be served cumulatively on the cultivation sentence, giving him a total effective sentence of 3 years and 9 months’ imprisonment. The judge then fixed a non-parole period of 2 years and 4 months for Nguyen, and 2 years and 3 months for Ho. Pre-sentence detention of 201 days was declared in respect of each applicant, and the judge…

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 [2019] VSCA 134
Case: [2019] VSCA 134
Decision Date: 17 June 2019

CaseChat Overview and Summary

In the case of Nguyen v The Queen, the applicants, who had been sentenced to three years and eight months for cultivating a commercial quantity of a narcotic plant, sought leave to appeal their sentences. The applicants argued that they were merely crop sitters and that the sentencing judge should have accepted the Crown’s concession on this point. The applicants contended that the judge's refusal to accept the concession led to an unfair sentencing process and that the sentences were manifestly excessive.

The legal issues before the court were whether the sentencing judge failed to observe the requirements of procedural fairness by not accepting the Crown’s concession that the applicants were crop sitters, whether the judge's refusal to accept this concession constituted an error in fact-finding, and whether the sentences were manifestly excessive to the extent that they warranted an appeal. The court also needed to determine if there was a reasonable prospect that the Court of Appeal would impose lesser sentences.

The court found that the requirements of procedural fairness were complied with as the judge had given the applicants notice that the concession would not be accepted and had provided reasons for this decision. The court held that there was no unfairness to the applicants and that the judge's fact-finding process was not erroneous. Additionally, the court concluded that it was not reasonably arguable that the sentences were manifestly excessive. Given these findings, the court determined that there was no prospect that the Court of Appeal would impose lesser sentences. Consequently, the applications for leave to appeal were refused.

The court's final orders were that the applications for leave to appeal the sentences were dismissed, and the original sentences of three years and eight months were upheld.

Orders