Nguyen v The Queen - [2013] VSCA 63

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0096

HOANG LANG NGUYEN	Appellant
	v
THE QUEEN	Respondent

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JUDGES	REDLICH and WHELAN JJA and KAYE AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	13 March 2013
DATE OF JUDGMENT	25 March 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 63
JUDGMENT APPEALED FROM	The Queen v Nguyen (Unreported, County Court of Victoria, Judge Maidment, 13 April 2012)

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CRIMINAL LAW – Appeal – Sentencing – Appellant found guilty of four counts of cultivating a narcotic plant in a commercial quantity, one count of trafficking a drug of dependence, and four counts of theft of electricity – Whether total effective sentence of 6 years and 9 months’ imprisonment, with non-parole period of 4 years and 9 months, manifestly excessive – Whether cumulative sentences for thefts involved double punishment – Whether sufficient weight given to principle of totality – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr D D Gurvich	Michael J Gleeson & Associates
For the Crown	Mr P J Doyle	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

I have had the advantage of reading in draft the reasons of Kaye AJA and agree that the appeal should be dismissed.

WHELAN JA:

I agree with Kaye AJA.

KAYE AJA:

After a trial in the County Court at Melbourne, the appellant was found guilty of four charges of cultivating a narcotic plant in a commercial quantity, contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981 (‘the Act’), one charge of trafficking in a drug of dependence contrary to s 71AC of the Act, and four charges of theft of electricity, contrary to s 72 of the Crimes Act 1958. The judge imposed a total effective sentence of 6 years and 9 months’ imprisonment, with a non-parole period of 4 years and 9 months. The judge made a declaration, pursuant to s 18 of the Sentencing Act1991, of 956 days pre-sentence detention. The appellant, by leave, appeals against the sentence so imposed on him.

The cultivation offences were committed by the appellant pursuant to a joint criminal enterprise with his de facto wife Dung Ngoc Vo (‘Vo’). It was alleged that the enterprise also comprised another person, Thi Xuan Nguyen, who is yet to stand trial. The cultivation offences were committed at the family home of Vo and the appellant at Kings Park, and at three leased factory premises in Sunshine North, which were respectively at 38 Imperial Avenue, 31 Whitehall Avenue and 55 Imperial Avenue. The appellant had leased each of those three premises, in which he purported to conduct a plastic recycling business as a ‘front’ to the enterprise of cultivation which was occurring in the premises.

On 31 August 2009, police executed a warrant at the premises at 38 Imperial Avenue. There they found a sophisticated hydroponic nursery for the cultivation of Cannabis L, together with specialised equipment designed to bypass the electricity

meter and thus to facilitate the theft…

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 [2013] VSCA 63
Case: [2013] VSCA 63
Decision Date: 25 March 2013

CaseChat Overview and Summary

The appellant, Nguyen, was found guilty by the County Court of Victoria of four counts of cultivating a narcotic plant in a commercial quantity, one count of trafficking a drug of dependence, and four counts of theft of electricity. He appealed against his sentence to the Court of Appeal, arguing that the total effective sentence of 6 years and 9 months’ imprisonment, with a non-parole period of 4 years and 9 months, was manifestly excessive. Nguyen also contended that the cumulative sentences for the thefts involved double punishment and that insufficient weight was given to the principle of totality. The appeal was dismissed.

The central legal issues before the court were whether the sentence imposed was manifestly excessive, whether the sentences for the thefts constituted double punishment, and whether the principle of totality had been adequately considered. The court needed to determine if the sentence was disproportionate given the nature and circumstances of the offences, and if the sentences for the thefts had already been accounted for in the overall sentence. The principle of totality, which aims to avoid cumulative sentences that would excessively punish the offender, was also scrutinized to ensure it was properly applied.

The Court of Appeal held that the sentence was not manifestly excessive. The court considered the seriousness of the offences, which involved the cultivation of a significant quantity of a narcotic plant and the trafficking of a drug of dependence, alongside the thefts of electricity. The court found that the sentence reflected the gravity of the offences and that there was no double punishment as the thefts were integral to the drug-related activities. Furthermore, the court confirmed that the principle of totality had been appropriately applied in determining the overall sentence. The appeal was dismissed, upholding the original sentence imposed by the County Court.

Orders