DPP v Nguyen (Unreported, County Court of Victoria, Judge Carmody, 23 September 2015)
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CRIMINAL LAW – Appeal – Sentence – Cultivation of commercial quantity of narcotic plant (cannabis) – Theft of electricity – Trafficking in drug of dependence – Total effective sentence 3y 6m, sentence 2y 6m on charge of cultivation of commercial quantity of cannabis – Whether manifestly excessive – Evidence indicating offender’s role akin to that of principal – No attempt by offender to contest characterisation of role – Current sentencing practice for comparable offending – Need for consistency in sentencing crop sitters and principals – Sentence not outside range – Appeal dismissed – Drugs, Poisons & Controlled Substances Act 1981 s 72A.
SENTENCING – Principles – Current sentencing practice (‘CSP’) – Consistency in sentencing – Jurisdiction of appellate court to correct CSP – Not limited to where determinative of appeal – Not limited to Crown appeal – Role of CSP in providing yardstick for range of sentences – Fairness as a matter of judicial discretion in not re-sentencing prisoner according to proposed increase in sentences – CSP for cultivation of commercial quantity of narcotic plant – Sentences in upper category of seriousness unduly low – Compressed range of sentences for mid-range offending – Current sentencing inadequate – Need for higher sentences for mid-range offending – Hogarth v The Queen (2012) 37 VR 658; Ashdown v The Queen (2011) 37 VR 341; Harrison v The Queen (2015) 74 MVR 58; Winch v The Queen (2010) 27 VR 658; DPP v Werry (2012) 37 VR 524; Poyner v The Queen (1986) 66 ALR 264; R v Pidoto (2006) 14 VR 269, Nguyen v The Queen [2010] VSCA 127, discussed.
CONSTITUTIONAL LAW – ‘Matter’ as federal requirement for jurisdiction – Limitation of ‘matter’ not applicable to State courts – DPP v Werry (2012) 37 VR 524, discussed – Australian Constitution.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr P J Doyle
Revill & Papa Lawyers
For the Crown
Mr B F Kissane QC, with Ms F L Dalziel
Mr J Cain, Solicitor for Public Prosecutions
For the Intervenors (Law Institute of Victoria and…
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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Details
AGLC
Nguyen v The Queen [2016] VSCA 198
Case
[2016] VSCA 198
Decision Date
CaseChat Overview and Summary
The appellant, Nguyen, appealed against his sentence for cultivating a commercial quantity of cannabis, theft of electricity, and trafficking in a drug of dependence. The sentence totalled three years and six months, with two years and six months imposed for the cultivation charge. The Court of Appeal was tasked with determining whether the sentence was manifestly excessive and whether the trial judge erred in not considering the risk of deportation in sentencing. The appeal also addressed the principles of current sentencing practices and their role in guiding the court's discretion.
The central issue was whether the total effective sentence of three years and six months was manifestly excessive, particularly focusing on the two years and six months for the cultivation charge. The court also considered whether the trial judge should have taken into account the risk of deportation, given Nguyen's status as an illegal resident with an expired visa at the time of sentencing. These issues required a careful examination of current sentencing practices and their consistency, as well as the extent to which mitigating factors such as the risk of deportation should influence the sentence.
The Court of Appeal found that the sentence was not manifestly excessive. It noted that the offender's role was akin to that of a principal and that there was no attempt to contest this characterisation. The court examined current sentencing practices for comparable offences and concluded that the sentence fell within the appropriate range. Regarding the risk of deportation, the court held that no error was made in not considering this factor, as it was difficult to compare the situation to cases involving offenders with existing visas. The court referenced several authorities to support its conclusion that the appeal should be dismissed.
The final orders of the Court of Appeal were to dismiss the appeal against the sentence. The court found no error in the trial judge's sentencing decision, affirming that the sentence was consistent with current sentencing practices and did not exceed the appropriate range for the offences committed.