Quan Quan Le v The Queen - [2018] VSCA 309

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0174

QUAN QUAN LE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 November 2018
DATE OF JUDGMENT:	21 November 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 309
JUDGMENT APPEALED FROM:	DPP v Nguyen & Ors [2018] VCC 985

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CRIMINAL LAW — Sentence — Appeal — Cultivating cannabis — Role as ‘crop-sitter’ —Sentence of two years’ imprisonment with non-parole period of 18 months — Parity with co-offenders — Whether sentence manifestly excessive — Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C K Wareham	Valos Black & Associates
For the Respondent	Ms S M K Borg	Mr John Cain, Solicitor for Public Prosecutions

PRIEST JA:

Introduction

Quan Quan Le, the applicant, pleaded guilty before a judge in the County Court on 25 June 2018 to an indictment charging him with cultivating cannabis at Curlewis on 28 July 2017 (charge 3).[1] Co-offenders Dung Van Ngo and Hung Hong Nguyen pleaded guilty respectively to cultivating cannabis in not less than a commercial quantity[2] (charge 1) and cultivating cannabis (charge 2) at Queenscliff.
[1]Drugs, Poisons and Controlled Substances Act 1981, s 72B. The maximum penalty is 15 years’ imprisonment.
[2]Drugs, Poisons and Controlled Substances Act 1981, s 72A. The maximum penalty is 25 years’ imprisonment.

On 28 June 2018, the judge sentenced the applicant to be imprisoned for two years, and fixed a non-parole period of 18 months. The judge sentenced Ngo to be imprisoned for two years and six months, with a non-parole period of two years; and sentenced Nguyen to be imprisoned for two years, with a non-parole period of 18 months.

The applicant seeks leave to appeal against his sentence on two grounds as follows:

1. In all the circumstances;
(a) the sentence imposed on the applicant for charge 3 on indictment C1711394 (cultivation of a narcotic plant); and
(b) the sentence imposed on his co-offenders Dung Van NGO (on a charge of cultivation of a narcotic plant in a commercial quantity – charge 1) and Hung Hong NGUYEN (on a charge of cultivation of a narcotic plant – charge 2);

gave rise to a justifiable sense of grievance.
2. When regard is had to the following circumstances:
·the applicant’s early plea of guilty and the stage at which it was entered;
·the applicant’s lack of prior convictions;
·the personal circumstances of the applicant; and
·the applicant’s role in the offending;

the sentence of [two years’] imprisonment with a non-parole period of 18 months’ imprisonment are manifestly excessive.

In my opinion, leave to appeal should be refused. My reasons follow.

The offending

Presently, the applicant, Ngo and Nguyen are all aged 34 years.[3]
[3]The applicant’s date of birth is 15 September 1984; Ngo’s date of birth is 10 October 1984; and Nguyen’s date of birth is 12 March 1984.

Their offending was described in the Summary of Prosecution Opening as follows:

ARREST: NGUYEN…

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

Case: [2018] VSCA 309
Decision Date: 21 November 2018

CaseChat Overview and Summary

Quan Quan Le appealed against his sentence for cultivating cannabis, arguing it was manifestly excessive. The case was heard in the High Court of Australia. The appellant was convicted for his role as a 'crop-sitter' in a cannabis cultivation operation, and was sentenced to two years' imprisonment with a non-parole period of 18 months. The appeal hinged on whether the sentence was disproportionate compared to his co-offenders and whether it was manifestly excessive.

The court considered the principles of sentencing proportionality and the appellant's role in the crime. It examined the sentences given to his co-offenders and the mitigating and aggravating factors in Le's case. The court held that the sentence was not manifestly excessive and did not breach the principle of parity with co-offenders. The appeal was dismissed, and leave to appeal was refused.

The High Court affirmed the lower court's decision, finding the sentence to be within the appropriate range for the offence and the appellant's role. The court noted the importance of maintaining the proportionality of sentences and ensuring they reflect the seriousness of the crime and the offender's culpability. The final orders confirmed the original sentence, and the appellant's leave to appeal was denied.

Orders