DPP v Ngoc Nguyen (Unreported, County Court of Victoria, Judge Mullaly, 24 March 2017)
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CRIMINAL LAW – Appeal – Sentence – Plea of guilty – Cultivating commercial quantity of cannabis – Possessing prohibited weapon – Sentence of 6 years and 6 months’ imprisonment with non-parole period of 4 years and 6 months – Whether applicant correctly characterised as principal – Whether sentence manifestly excessive – Role in cultivation of cannabis – Consistency in sentencing – Application for leave to appeal granted – Appeal allowed – Resentenced to 5 years’ imprisonment with a non-parole period of 3 years and 6 months – Nguyen v The Queen (2016) 311 FLR 289.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr J McLoughlin with Ms M Casey
Victoria Legal Aid
For the Crown
Ms D Karamicov
Office of Public Prosecutions
KAYE JA
T FORREST AJA:
The applicant pleaded guilty in the County Court to one charge of cultivating a commercial quantity of cannabis at Tempy between 1 January 2016 and 22 March 2016, contrary to s 72A of the Drugs, Poisons & Controlled Substances Act 1981 (‘the Act’). He also pleaded guilty to a related summary charge of possessing a prohibited weapon (namely a Samurai sword), contrary to s 5AA of the Controlled Weapons Act 1990. On the principal charge, of cultivating a commercial quantity of cannabis, the applicant was convicted and sentenced to 6 years and 6 months’ imprisonment, with a non-parole period of 4 years and 6 months. On the summary charge, he was convicted and fined $200.[1]
[1]DPP v Ngoc Nguyen (Unreported, County Court of Victoria, Mullaly J, 24 March 2017) (‘Ngoc Nguyen’).
The applicant seeks leave to appeal the sentence imposed on the principal charge on two grounds, namely:
(1)The judge erred in characterising his role as a ‘principal cultivator’;
(2)The sentence is manifestly excessive given the applicant’s role in the offending and current sentencing practice.
The circumstances of the offending
The charge against the applicant arose from a drug taskforce investigation that was undertaken between October 2015 and May 2016, that targeted a suspected Vietnamese drug trafficking network.
On 22 March 2016, members of the taskforce executed a search warrant on a disused shop at 4-6 Sunraysia Highway, Tempy. The investigation had identified that address as a site where cannabis was being cultivated. Upon execution of the warrant, police located five rooms within the shop area that contained a substantial quantity of cannabis plants. The plants were fed by water pipes leading to adjacent rooms in which wheelie bins were used to store liquid to feed the plants. There were a large amount of electric cables connecting high powered lighting systems throughout the…
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.
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AGLC
Nguyen v The Queen [2017] VSCA 286
Case
[2017] VSCA 286
Decision Date
CaseChat Overview and Summary
In the matter of Nguyen v The Queen, the appellant, Mr. Nguyen, appealed against the sentence imposed by the Supreme Court of New South Wales. Mr. Nguyen had pleaded guilty to cultivating a commercial quantity of cannabis and possessing a prohibited weapon. The trial judge had sentenced him to six years and six months’ imprisonment, with a non-parole period of four years and six months. The central issue before the court was whether Mr. Nguyen was correctly characterised as the principal offender and whether the sentence was manifestly excessive, considering his role in the cultivation of cannabis and the need for consistency in sentencing.
The court examined Mr. Nguyen's role in the cultivation operation and the factors that influenced the trial judge’s decision on sentencing. It was established that Mr. Nguyen played a significant role in the cultivation of the cannabis, but he argued that he was not the principal offender and that his role was not as dominant as the trial judge had perceived. The court assessed whether the trial judge had appropriately taken into account all mitigating and aggravating factors in determining the sentence. It was also necessary to consider the principles of consistency in sentencing for similar offences.
After a thorough analysis of the evidence and arguments presented, the court found that Mr. Nguyen's role, while significant, did not warrant the characterisation of him as the principal offender. The court also determined that the sentence was manifestly excessive given the circumstances and the principles of consistency in sentencing. Consequently, the application for leave to appeal was granted, and the appeal was allowed. The sentence was reduced to five years’ imprisonment with a non-parole period of three years and six months.