DPP v Nguyen

• Jurisdiction: Ireland
• Judge: Mr. Justice Sheehan
• Judgment Date: 04 December 2014
• Neutral Citation: [2014] IECA 55
• Court: Court of Appeal (Ireland)
• Date: 04 December 2014

[2014] IECA 55

THE COURT OF APPEAL

The President.

Birmingham J.

Sheehan J.

255/13

256/13

DPP v Nguyen

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Ba Nguyen and Ha Nguyen

Appellants

MISUSE OF DRUGS ACT 1977 S17

Sentencing – Cannabis cultivation – Severity of sentence – Appellants seeking to appeal against severity of sentence – Whether the sentencing judge erred in principle in finding that the offences were in the higher range

Facts: The appellants, Mr Nguyen and Ms Nguyen, both pleaded guilty to the offence of cultivating cannabis contrary to s. 17 of the Misuse of Drugs Act 1977 at Trim Circuit Court in June, 2013. It was accepted that the first appellant was at the lowest level in the organisation and had effectively been trafficked into the jurisdiction as an economic migrant; he was a person vulnerable to exploitation and might be described as a prisoner at the location where he was arrested. It was also accepted that the second appellant was unlikely to have made any significant money from her role in the enterprise and would possibly have been moved to another similar operation following the harvesting of the plants. It was also accepted that given her lack of English and her lack of familiarity with the area where she was working, she effectively would have had nowhere to go. In passing sentence the sentencing judge identified as aggravating factors the elaborate cultivation system that was in place, the potential street value of the drugs and the harmful effect of drugs on society. The mitigating factors identified by the sentencing judge were the vulnerability of the appellants, the fact that they had both been trafficked into the jurisdiction and were both under the control of unidentified third parties. The conditions of their employment, the early plea, the cooperation that they both gave to the Gardai and their expressions of remorse were also taken into account. They were both sentenced to six years imprisonment with the final two years suspended in each case on terms that they each keep the peace and be of good behaviour for a period of two years following their release from prison. In their appeals to the Court of Appeal, both appellants argued that the trial judge erred in principle in holding that the offences were within the higher range. In response to this submission, the respondent, the DPP, submitted that the offences probably lay at the lower end of the mid-range. The Court considered the submissions and held that the sentencing judge erred in principle in finding that the offences were in the higher range. To that extent the Court allowed the appeal, quashed the original sentence and proceeded to a new sentence hearing in which further submissions were made by the appellants in light of the court"s finding.

Held by Sheehan J that, having considered what the appropriate sentence should be in light of the impoverished circumstances of both appellants at the time the offences were committed, a sentence of three years imprisonment was the appropriate place on the range where the offences lay, given that the Court emphasised the personal circumstances of both appellants.

Sheehan J held that in light of the mitigating factors the proper course was to suspend unconditionally the balance of the three year sentence it imposed in lieu of the original sentences.

Judgment approved.

1 1. These are appeals against severity of sentence

2 2. At Trim Circuit Court on the 7 ^th June, 2013, Mr. Ba Nguyen and Ms. Ha Nguyen both pleaded guilty to the...