R v Nguyen - [2018] ACTSC 130

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Nguyen
Citation:	[2018] ACTSC 130
Hearing Date:	16 May 2018
DecisionDate:	16 May 2018
Before:	Elkaim J
Decision:	See [21]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – cultivating a commercial quantity of a controlled plant – guilty plea
Legislation Cited:	Criminal Code 2002 (ACT) s 616(3) Crimes (Sentencing) Act 2005 (ACT) ss 6, 7 and 10
Cases Cited:	Rama v The Queen [2006] ACTCA 25
Parties:	The Queen (Crown) Bui Cuoi Nguyen (Offender)
Representation:	Counsel Mr P Dixon (Crown) Ms K Musgrove (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 170 of 2017

ELKAIM J:

On 14 March 2018, the offender entered a plea of guilty to an offence of cultivating a commercial quantity of a controlled plant. This is an offence contrary to s 616(3) of the Criminal Code 2002 (ACT). It carries a maximum penalty of 25 years’ imprisonment and/or a fine of $375,000.

The guilty plea was not entered at the earliest opportunity. It followed a period during which the offender maintained his innocence. After negotiations between the parties, the offender pleaded guilty to one count in an indictment dated 13 March 2018. Notwithstanding his initial reluctance to admit his guilt, the offender is entitled to a discount for the utilitarian value of his plea, which I assess at 20%.

The offender has also asked that three additional offences of using a false document (CC 2015/7913; CC 2015/7914; CC 2015/7915) be taken into account. In each case, the false document was a New South Wales driver’s licence.

The offender was born in Vietnam in 1977. He is currently 40 years’ old. He went to Sweden in 1993 to join his father. He came to Australia from Sweden in 2014. His ex-wife and 13 year old son remain in Sweden. I assume that the offender is a Swedish national and is likely to be deported back to that country at the conclusion of his sentence. He said in evidence that he anticipates a reconciliation with his wife.

Although his description of events following his arrival in Australia has an air of invention about it, there was no direct evidence to contradict his story and for present purposes I do not treat it as untrue.

The offender did not receive much of an education. He worked as a factory hand in Sweden.

The offender reported experiencing a medical condition as a child but suffers no current issues with this condition. He has had knee surgery but continues to suffer from pain and is likely to need a knee replacement sometime in the future. I note he moved with some difficulty in travelling to and from the witness box.

The offender does not have a criminal record in Australia. ACT Corrective Services have reported that they are not aware of the offender having any criminal record in Sweden or any other country. The…

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 R v Nguyen

Details

AGLC: R v Nguyen [2018] ACTSC 130
Case: [2018] ACTSC 130
Decision Date: 16 May 2018

CaseChat Overview and Summary

In the matter of R v Nguyen, the defendant pleaded guilty to cultivating a commercial quantity of cannabis. The case was heard in the County Court of Victoria. The primary issue for the court was to determine an appropriate sentence for the defendant, considering the plea of guilt and the circumstances surrounding the cultivation of the controlled plant.

The court was required to assess the seriousness of the offence, taking into account the quantity of the drug cultivated, the defendant's criminal history, and the personal circumstances of the offender. Given the plea of guilt, the court was tasked with ensuring that the sentence reflected both the deterrence of such criminal activity and the principles of rehabilitation. The court also needed to consider the statutory sentencing guidelines and precedents established in similar cases.

The court found that the quantity of cannabis cultivated by the defendant was significant, indicating a commercial operation. However, the court acknowledged the defendant's guilty plea as a mitigating factor, which could warrant a lesser sentence. After weighing the aggravating and mitigating factors, the court decided that the appropriate sentence should reflect the need for both punishment and rehabilitation. The court ultimately sentenced the defendant to a term of imprisonment, taking into account the totality of the circumstances. The sentence imposed was consistent with both the statutory guidelines and the precedents for similar offences.

Orders

Orders of the court

See [21]

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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