R v Nguyen - [2004] VSCA 115

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 341 of 2003

THE QUEEN
	v.
DUNG MINH NGUYEN

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JUDGES:	CHARLES, CHERNOV and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 June 2004
DATE OF JUDGMENT:	17 June 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 115

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Criminal law - Sentence - Cultivation of 137 marijuana plants - Theft of electricity - Finding that crop intended for onward commercial distribution - Whether finding open - Total effective sentence 4 years 1 month with 3 years non-parole period reduced to 3 years 1 month with 21 months non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G. Cannon	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr M.E. Dean, S.C. with Ms N.T. Nguyen	Michael J. Gleeson & Associates

CHARLES, J.A.:

I will invite Eames, J.A. to give the first judgment.

EAMES, J.A.

This is an application for leave to appeal against sentence. The applicant pleaded guilty to one count of cultivating a commercial quantity of cannabis, for which the maximum penalty under s.72A of the Drugs Poisons and Controlled Substances Act 1981 is 25 years' imprisonment and a fine of $300,000. He also pleaded guilty to theft of electricity contrary to s.74 of the Crimes Act 1958, which carried a penalty of 10 years' imprisonment. On 28 November 2003 a judge of the County Court sentenced him on the first count to four years' imprisonment and to three months on the second count, one month of which was directed to be served cumulatively. The total effective sentence was four years one month's imprisonment and a non-parole period of three years was fixed. Two days' pre-sentence detention was declared.

The cultivation involved 67 mature marijuana plants and 70 smaller ones, which were being grown at the home of the applicant by means of a sophisticated hydroponic system. The theft of electricity involved some $3,836.

The applicant has appealed on three grounds:

1.The learned sentencing judge erred in sentencing the applicant on the basis that he was concerned in the onward commercial movement of the cannabis.
2.The learned sentencing judge erred in ordering that the applicant serve three years' imprisonment before becoming eligible for release on parole.

3. In all the circumstances the sentence is manifestly excessive.

As to ground 1, it was contended that the judge erred by making a finding that it was not open to him to make, beyond reasonable doubt, namely, the finding that the applicant had grown the crop for onward commercial movement. That finding involved rejection of the applicant's evidence.

The applicant gave evidence on the plea that he had spoken to a group of Vietnamese and non-Vietnamese people at the casino who suggested to him that they would help him set up a marijuana crop and then would cultivate it when ready, leaving him with half the crop for his personal use. The applicant professed not to know the names of any of these people, save for the name "Cuong" as to one…

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 [2004] VSCA 115
Case: [2004] VSCA 115
Decision Date: 17 June 2004

CaseChat Overview and Summary

The case of R v Nguyen involved the defendant, Nguyen, who was charged with cultivating 137 marijuana plants and stealing electricity. The dispute was heard in the Supreme Court of Queensland, where the court had to determine the appropriate sentence for the defendant’s crimes. The central legal issue was whether the finding that the crop was intended for onward commercial distribution was sufficiently proven and, if so, how this impacted the sentencing. The court also had to consider the appropriate length and non-parole period for the sentence.

The court found that the evidence presented was sufficient to support the finding that the marijuana crop was intended for commercial distribution. This finding had significant implications for the sentencing as it elevated the severity of the offence. The court balanced various factors, including the defendant’s lack of a criminal record, his cooperation with authorities, and the scale of the operation, in determining the sentence. Ultimately, the court decided that the total effective sentence should be reduced from 4 years and 1 month with a 3-year non-parole period to 3 years and 1 month with a 21-month non-parole period.

The reasoning behind the court’s decision was grounded in the principle of proportionality and the need to balance punitive and rehabilitative aspects of sentencing. The court recognised the seriousness of the offence but also considered mitigating factors that warranted a reduction in the sentence. This balanced approach aimed to ensure justice was served while also considering the defendant’s potential for rehabilitation.

The final orders of the court were that Nguyen’s sentence would be reduced to 3 years and 1 month imprisonment with a non-parole period of 21 months. This decision reflected the court’s balanced approach to sentencing, taking into account both the gravity of the offence and the mitigating factors presented.

Orders