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…
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- AGLC
- Quy Nguyen v R [2017] VSCA 127
- Case
- [2017] VSCA 127
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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