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Quy Nguyen v R

Quy Nguyen v R

Case [2017] VSCA 127 2 June 2017

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0176

QUY NGUYEN	Appellant
v
THE QUEEN	Respondent

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JUDGES:	OSBORN and SANTAMARIA JJA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 May 2017
DATE OF JUDGMENT:	2 June 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 127
JUDGMENT APPEALED FROM:	DPP v Quy Nguyen (Unreported, County Court of Victoria, Judge Mullaly, 8 August 2016)

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CRIMINAL LAW — Appeal — Sentence — Drug offences — Cultivating a commercial quantity of a narcotic plant (cannabis L) — Theft — Sentenced to 3 years and 3 months’ imprisonment with a non-parole period of 2 years — Whether manifestly excessive — Objective seriousness of offending in circumstances where appellant was crop sitter — Relevance of offender’s role — No error — Appeal dismissed — R v Wong (2001) 207 CLR 584 — Nam Son Nguyen v The Queen (2016) 311 FLR 289 — R v Olbrich (1999) 199 CLR 270.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A Malik	Victoria Legal Aid
For the Respondent	Mr B F Kissane QC	Mr John Cain, Solicitor for Public Prosecutions

OSBORN JA:

On 5 August 2016, following pleas of guilty, the appellant was convicted of one charge of cultivating a commercial quantity of a narcotic plant (cannabis L) and one charge of theft.

On 8 August 2016, the appellant was sentenced by Judge Mullaly to an aggregate sentence of three years and three months’ imprisonment with a non-parole period of two years.

The appellant now appeals that sentence pursuant to leave granted by Santamaria JA on the ground that:

The aggregate sentence imposed was manifestly excessive in view of the objective seriousness of the offending. In particular the appellant’s role was confined to minding the crops.

The maximum penalty for the cultivation offence is 25 years’ imprisonment.[1]
[1]Drugs, Poisons and Controlled Substances Act 1981 s 72A.

The maximum penalty for the theft is 10 years’ imprisonment.[2]
[2]Crimes Act 1958 s 74.

In essence the appellant submits first that the characterisation of his role in the cultivation operation in issue was a critical sentencing consideration, and secondly, that because he was no more than a crop sitter the sentence can be seen to be manifestly excessive when regard is had to current sentencing practice.

Background facts

In order to evaluate these submissions it is necessary first to say something about the background facts.

On 23 November 2015, police executed a search warrant at a property in Yarram and discovered a substantial hydroponic cannabis installation.

The property contained both a house and a large rear shed. All 11 rooms of the house had been adapted to grow cannabis, as had the shed.

The house had been boarded up to prevent casual observation of the operations within it.

Artificial lighting and a variety of other equipment had been installed to allow the plants to be grown indoors.

The electricity meter had been bypassed to allow electricity to be taken from the mains network without…

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 Quy Nguyen v R

Details

AGLC: Quy Nguyen v R [2017] VSCA 127
Case: [2017] VSCA 127
Decision Date: 2 June 2017

CaseChat Overview and Summary

Quy Nguyen appeals against the sentence imposed by the County Court for cultivating a commercial quantity of a narcotic plant, specifically cannabis, and for theft. The appeal was heard in the Court of Appeal, which included Justices King, Ryan, and Weinberg. The central legal issue before the court was whether the sentence of three years and three months' imprisonment, with a non-parole period of two years, was manifestly excessive, given the appellant's role as a crop sitter. The court needed to determine the relevance of the offender's role in the cultivation of the cannabis and how this should impact the sentencing.

The Court of Appeal, after reviewing the relevant authorities, found no error in the primary judge's assessment of the seriousness of the offending. The court referred to previous cases such as R v Wong, Nam Son Nguyen v The Queen, and R v Olbrich, which established the framework for assessing the objective seriousness of drug-related offences and the role of the offender. The primary judge had appropriately considered the appellant's role as a crop sitter, which, while not as central as that of a grower or supplier, still involved a significant level of involvement in the cultivation process. The court concluded that the sentence was neither manifestly excessive nor disproportionate to the objective seriousness of the offending. Therefore, the appeal was dismissed.

Given the findings, the Court of Appeal upheld the sentence imposed by the County Court. The appellant's appeal was unsuccessful, and the original sentence of three years and three months' imprisonment with a non-parole period of two years remained in place. The court's decision underscores the importance of considering the offender's role in drug cultivation cases when determining the appropriate sentence.

Orders