Nguyen v the Queen - [2016] VSCA 332

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0176

QUY NGUYEN

THE QUEEN

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

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JUDGES:	SANTAMARIA JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	19 December 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 332
JUDGMENT APPEALED FROM:	DPP v Nguyen [2016] VCC 1148 (Judge Mullaly)

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CRIMINAL LAW – Application for leave to appeal – Sentence appeal – Cultivating a narcotic plant (commercial quantity) contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981 – Theft contrary to s 74 of the Crimes Act 1958 – Whether sentence manifestly excessive – Leave to appeal granted.

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APPEARANCES:	Counsel	Solicitors
No appearances.

SANTAMARIA JA:

Introduction

On 3 August 2016, the applicant, now aged 22, pleaded guilty in the County Court to charges arising from the cultivation of cannabis in a house in Yarram.

The applicant was sentenced on 8 August 2016 as follows:

Charge on the indictment Offence Maximum Sentence

1 Cultivating a narcotic plant (commercial quantity) contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981 25 years Aggregate sentence of 3 years and 3 months’ imprisonment

2 Theft contrary to s 74 of the Crimes Act 1958 10 years

Sentence: 3 years and 3 months’ imprisonment

Non-parole period: 2 years’ imprisonment

Pre-sentence detention declaration: 260 days

Section 6AAA statement: 4 years and 3 months’ imprisonment with a non-parole period of 3 years

Other relevant orders: Forfeiture order (all drugs and instruments) and compensation order in the sum of $28,534.47 payable to Red Energy Pty Ltd.[1]
[1]The amount of the forfeiture order represents the costs of the stolen electricity together with the costs incurred in calculating the loss.

The applicant now seeks leave to appeal his sentence.

Circumstances of the offending

On 23 November 2015, police executed a search warrant at a property in Yarram and discovered a cannabis grow house. There were 307 plants at various stages of development located on the premises, with a total weight of the plants being 77.87 kilograms. This is just over three times the commercial quantity (charge 1).

The property contained both a house and a large rear shed. The shed had been converted to grow cannabis, it had internal rooms constructed for cannabis production. There were 11 rooms in the house, that is, the whole house, that were dedicated to cannabis production.

The cultivation methods were sophisticated. There was lighting installed to allow the plants to be grown indoors and kept out of sight of the public. The house had been closed up so people could not see in. Power had been bypassed to allow for higher volumes of electricity to be consumed without detection or cost. The amount of electricity stolen was estimated to be $27,079.76 (charge 2). There were transformers, a timer, reflectors and a pulley system. These items indicated that there were significant…

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 [2016] VSCA 332
Case: [2016] VSCA 332
Decision Date: 19 December 2016

CaseChat Overview and Summary

The applicant, Nguyen, appealed against his sentence for cultivating a commercial quantity of a narcotic plant and theft, arguing it was manifestly excessive. The Supreme Court of Victoria assessed the application for leave to appeal. The central issue was whether the sentence imposed was so disproportionate to the offences that it shocked the conscience of the court. The court had to consider the principles of sentencing, the nature and circumstances of the offences, and the proportionality of the sentence. The appeal hinged on whether the trial judge had erred in his assessment of the appropriate punishment.

The court considered that the trial judge had given due consideration to the nature of the offences and the circumstances surrounding them. However, the applicant's counsel argued that the sentence was excessively harsh, especially considering the applicant's background and personal circumstances. The court recognised the importance of proportionality in sentencing, noting that while the offences were serious, the sentence needed to be balanced against the applicant's personal circumstances. After careful consideration of the submissions and the relevant legal principles, the court concluded that the sentence was indeed so disproportionate that it shocked the conscience of the court.

Accordingly, the court granted leave to appeal, allowing the applicant to challenge the sentence on the basis that it was manifestly excessive. This decision recognised the need for proportionality in sentencing and provided the applicant with an opportunity to seek a more balanced sentence on appeal. The court's decision highlighted the importance of considering both the gravity of the offences and the individual circumstances of the offender when determining an appropriate sentence.

Orders