R v Nguyen (Unreported, County Court of Victoria, Judge Coish, 11 December 2008)
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CRIMINAL LAW – Appeal – Sentence – Cultivation of cannabis – Quantity exceeded commercial quantity threefold – Three years’ imprisonment, non-parole period of two years – Whether manifestly excessive – Whether consistent with current sentencing practices – Whether current sentencing practices consistent with maximum penalty of 25 years – Psychological condition largely consequent upon charging and prospect of imprisonment – Appeal dismissed.
CRIMINAL LAW – Sentencing – Cultivation of a drug of dependence – Quantity-based sentencing regime – Need for certainty and consistency in identifying relevant quantity of cannabis – Drugs, Poisons and Controlled Substances Act 1981 (Vic), Schedule 11 Part 2.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr D C Hallowes
Haines & Polites
For the Crown
Mr T Gyorffy
Mr C Hyland, Solicitor for Public Prosecutions
MAXWELL P:
This is an appeal against sentence imposed in the County Court on 11 December 2008. The appellant pleaded guilty to one count of cultivating a commercial quantity of cannabis and was sentenced to three years’ imprisonment with a non-parole period of two years. For reasons which follow, I would dismiss the appeal.
Determining the relevant weight of cannabis
Sentencing for offences of drug trafficking and cultivation is quantity-based.[1] There was some discussion in the course of argument as to which was the relevant weight of cannabis for the purposes of the Drug, Poisons and Controlled Substances Act1981 (Vic). The commercial quantity of cannabis is specified in Part 2 of Schedule 11 to the Act as being either 100 plants or 25 kilograms.
On the plea, the prosecution informed the judge that 48 cannabis plants had been found at the first of the three properties searched. The weight of the cannabis was presented in two different ways. First, it was said that the plants had ‘a total weight of 60.5 kilograms’. (It was explained on the appeal that this was the weight of the whole plant excluding the roots.) Secondly, the judge was told that the ‘yield weight’ of the cannabis – said to comprise ‘the leaves and flowering heads’ – was 47.3 kilograms. On the appeal, counsel for the Crown submitted that the former of these two was the relevant weight.
On the plea, defence counsel argued that the ‘commercial quantity of cannabis varies hugely in what can be alleged as facts’. Counsel relied on the dried weight (11.8 kilograms) in submitting that the offence was ‘at the lower end of the scale in terms of quantity’.
It seems to me most important that there be real…
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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Nguyen v The Queen [2010] VSCA 127
Case
[2010] VSCA 127
Decision Date
CaseChat Overview and Summary
In the case of Nguyen v The Queen, the appellant, Nguyen, was convicted for cultivating cannabis. The appeal before the court concerned the sentence imposed, which was three years’ imprisonment with a non-parole period of two years. The primary legal issue was whether this sentence was manifestly excessive and inconsistent with current sentencing practices, particularly in light of the maximum penalty of 25 years under the Drugs, Poisons and Controlled Substances Act 1981 (Vic). Additionally, the court considered the appellant’s psychological condition, which was largely consequent upon the charging and the prospect of imprisonment.
The court examined the principles of sentencing for drug cultivation, focusing on the need for certainty and consistency in determining the relevant quantity of cannabis. Given that the quantity involved in this case exceeded the commercial quantity threefold, the court had to balance the severity of the offence against the appellant’s mental health condition. The court acknowledged the significant penalty attached to the offence but also noted the appellant's psychological state and the potential for alternative sentencing options. Ultimately, the court concluded that the sentence was not manifestly excessive and was consistent with current sentencing practices, taking into account all relevant factors.
The appeal was dismissed, affirming the sentence imposed by the lower court. The court emphasised the importance of adhering to statutory guidelines and maintaining consistency in sentencing within the quantity-based framework. The court found no basis to interfere with the sentence, reaffirming the importance of a balanced approach to sentencing that considers both the gravity of the offence and the individual circumstances of the offender.