DPP v Nguyen

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 13 July 2015
• Neutral Citation: [2015] IECA 157
• Date: 13 July 2015
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal No: 163/14 Appeal No. 162/14

[2015] IECA 157

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Mahon J.

Appeal No: 163/14

Appeal No. 162/14

The People at the Suit of the Director of Public Prosecutions

Respondent

and

Phuc Nguyen Le and Hong Thi Nguyen

Appellants

Sentencing – Cultivation – Severity of sentence – Appellants seeking to appeal against sentences – Whether sentences were unduly severe

Facts: The appellants, Mr and Mrs Nguyen, were arrested and charged following a raid by An Garda Siochána on an industrial unit at Kells Business Park, Cavan Road, Kells, Co. Meath. The unit had been converted to provide for the cultivation of cannabis. Approximately 29.5 kilos of dried cannabis was found with a value of €590,000, together with 1,384 plants at various stages of cultivation, with a potential value of €1,000,000. Both appellants were convicted of cultivation contrary to s. 17 and s. 27 of the Misuse of Drugs Act 1977. Both received the same sentence, being a prison sentence of ten years to date from 19th April 2013. Mr Nguyen had the final three years of his sentence suspended on conditions, while the final four years and six months of the sentence of Mrs Nguyen was suspended, also on conditions, in recognition of her having stronger mitigation factors. Both appealed to the Court of Appeal against severity of sentence on grounds that the sentencing judge erred in a number of respects including a failure to fully take into account the fact that Mrs Nguyen had no previous convictions, and that he also failed to attach sufficient weight to her co-operation and remorse. In relation to both appellants, the sentencing judge was criticised for failing to take into sufficient account the effect that imprisonment would have on both appellants, being foreign nationals in a foreign country and neither of whom speak English. The sentencing decision was further criticised for imposing a sentence based on the significant value of the drugs where the amount was not a necessary ingredient of the offence. It was submitted on behalf of the respondent, the DPP, that the value of the drugs plants was a relevant factor in the approach to sentencing, and that the sentencing judge had correctly placed the offence at the higher range, having regard to the value of the plants in question. Emphasis was placed by the respondent on the fact that the cultivation of cannabis in this case was undertaken on an industrial and sophisticated scale and warranted sentences of the nature imposed on the appellants.

Held by Mahon J that he was satisfied that there was an error of principle in the sentencing judge”s approach to both sentences; while he correctly identified the sophistication of the operation as well as the appellant”s essential role in that operation, he failed to adequately take account of the fact that the appellants were not involved in its setting up, planning and financing, and that their only benefit from it was the provision of a modest income and very basic living conditions. Mahon J emphasised that they were merely workers, and had been brought into Ireland for that purpose; they were obviously vulnerable to exploitation and may not have had absolute freedom to walk away from their involvement. On that basis, Mahon J held that the placement of the offences at the higher end of the gravity scale was not appropriate in the particular circumstances of the appellants” involvement, nor was the sentence of ten years in both cases. It was Mahon J”s view that the...