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Nguyen v The Queen

Nguyen v The Queen

Case [2017] VSCA 100 5 May 2017

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0248

ANH TUAN NGUYEN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH, WEINBERG and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 March 2017
DATE OF JUDGMENT:	5 May 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 100
JUDGMENT APPEALED FROM:	[2016] VCC 608 (Judge Pullen)

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CRIMINAL LAW – Appeal – Sentence – Cultivation of a commercial quantity of a narcotic plant – Sentence of 4 years’ imprisonment – Non-parole period of 2 years and 6 months – Whether failure to give mitigatory weight to length of time on remand and time spent in lockdown a specific error – Manifest excess – Role of applicant in joint criminal enterprise Whether lesser sentence required if offender not a principal or organiser – Applied Nguyen v The Queen (2016) 311 FLR 289; R v Olbrich (1999) 199 CLR 270; R v Harris [1998] 1 Cr App R (S) 38 – Considered DPP (Cth) v Thomas [2016] VSCA 237; DPP v Basic [2016] VSCA 99; Stanley (a Pseudonym) v The Queen [2017] VSCA 54 – Leave to appeal granted – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J E McLoughlin	Victoria Legal Aid
For the Respondent	Mr B L Sonnet	Mr J Cain, Solicitor for
Public Prosecutions

REDLICH JA
WEINBERG JA
OSBORN JA:

Summary

The applicant seeks leave to appeal a sentence of four years’ imprisonment with a non-parole period of two years and six months imposed on one charge of cultivating a commercial quantity of a narcotic plant. He submits that the sentence is manifestly excessive given his limited role in the offending and current sentencing practices for that level of offending.

We reject this submission. Contrary to the applicant’s submission, an offender need not be characterised as a ‘principal’ or an ‘organiser’ to receive a sentence of this magnitude. As the applicant conceded, he played a ‘significant’ and ‘ongoing’ role in the joint criminal enterprise.

The applicant also submits that mitigatory weight should have been given to the length of time he spent on remand and the period he spent in lockdown due to the 2015 Metropolitan Remand Centre riots (‘the 2015 MRC riots’). We accept that a significant time spent in lockdown may be considered as a mitigatory factor. However, we consider the mitigatory weight of the applicant’s experience on remand was not of such an order that the failure to take it into consideration constituted a material error. Were we to reopen the sentencing discretion for such error, we would not impose a less severe sentence.

History of proceedings

The applicant pleaded guilty to one charge of cultivating a commercial quantity of a narcotic plant and was sentenced by her Honour Judge Pullen on 13 May 2016 as follows:[1]
[1]DPP v Nguyen [2016] VCC 608 (‘Reasons’).

Charge	Offence	Maximum	Sentence
1	Cultivate narcotic plant – commercial quantity [Drugs, Poisons and Controlled Substances Act 1981, s 72A]	25 years’ imprisonment	4…

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 [2017] VSCA 100
Case: [2017] VSCA 100
Decision Date: 5 May 2017

CaseChat Overview and Summary

The appellant, Nguyen, appealed against a sentence imposed by the County Court for the cultivation of a commercial quantity of a narcotic plant. The appeal was heard in the Court of Appeal. The appellant contended that the primary judge failed to give mitigatory weight to the length of time he had spent on remand and in lockdown, and that this was a specific error that resulted in a manifest excess in the sentence imposed. The appellant also argued that a lesser sentence should have been imposed because he was not a principal or organiser in the joint criminal enterprise.

The court considered whether the primary judge's failure to give mitigatory weight to the time spent on remand and in lockdown was a specific error that resulted in a manifest excess in the sentence. The court noted that the primary judge had considered the appellant's time on remand and in lockdown, but had not given it significant weight because it was not a mitigating factor in the circumstances of the case. The court held that the failure to give mitigatory weight to the time spent on remand and in lockdown was not a specific error that resulted in a manifest excess in the sentence. The court also considered whether a lesser sentence should have been imposed because the appellant was not a principal or organiser in the joint criminal enterprise. The court held that the appellant's role in the joint criminal enterprise was a relevant consideration in determining the appropriate sentence, but that it did not necessarily mean that a lesser sentence should have been imposed.

The court dismissed the appeal, holding that the sentence imposed by the primary judge was not a manifest excess. The court held that the primary judge had appropriately considered all relevant mitigating and aggravating factors in determining the appropriate sentence, and that the appellant's role in the joint criminal enterprise was only one of many factors to be considered. The court noted that the appellant had been involved in a significant criminal enterprise, and that the sentence imposed reflected the seriousness of the offence.

No orders were made as the appeal was dismissed.

Orders