DPP v Vu

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Edwards
• Judgment Date: 08 February 2016
• Neutral Citation: [2016] IECA 36
• Date: 08 February 2016
• Docket Number: Appeals Numbers: 197, 198 & 199 CJA/2015 Appeal Number: 181/2015

Birmingham J.

Sheehan J.

Edwards J.

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

V

CHOUNG VU

KHAM TU (ORS DAVID TU)

TUAN CONG LE

RESPONDENTS

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

V

CHOUNG VU

APPELLANT

[2016] IECA 36

Appeals Numbers: 197, 198 & 199 CJA/2015

Appeal Number: 181/2015

THE COURT OF APPEAL

Criminal Law ? s. 17 of the Misuse of Drugs Act 1977 ? Sentencing ? s. 2 of the Criminal Justice Act 1993 ? Leniency

Facts: All three accused were convicted and sentenced in respect of the cultivation of plants of the genus cannabis contrary to s. 17 of the Misuse of Drugs Act 1977, which carries a maximum sentence of 14 years imprisonment. Mr Vu received a sentence of six years imprisonment with the final three years suspended to take account of three weeks he spent in custody. Mr Tu was sentenced to four years imprisonment with the last two and a half years suspended, consecutive to a sentence of three years imprisonment that was imposed in relation to a similar offence. The court declined to give Mr Tu credit for time served. Mr Cong Le received a sentence of four years imprisonment with the final three years suspended. The DPP sought a review pursuant to s. 2 of the Criminal Justice Act 1993 of the sentences imposed on all three on the grounds they were unduly lenient. Mr Vu appealed against the severity of his sentences. This was essentially a cross?appeal to the DPP?s application for a s. 2 review of the case. The sentencing judge did not indicate where on the range the offences fell. It was suggested that the starting points in respect of each were too low and the court was invited to consider other comparators.

Held by Edwards J:

The court considered the direct comparisons made to other cases but determined that the facts were too different to those in the present case. The sentence in respect of Mr Vu fell into the mid range, whereas the four?year sentences of Mr Tu and Mr Cong Le fell into the upper end of the lower range. The court determined that Mr Tu?s headline sentence was lenient but that it was still reasonable due to the application of the totality principle in respect of the consecutive sentencing scenario. The court was satisfied that the sentences in respect of Mr Tu and Mr Cong Le were lenient but not unduly lenient. It dismissed the s. 2 applications of the DPP in each respondent?s case. The court also dismissed Mr Vu?s cross?appeal against the severity of his sentence.

Judgment of the Court delivered on 8th February 2016 by Mr. Justice Edwards

Introduction

1 In this case Mr. Choung Vu, Mr. Kham Tu (otherwise known as David Tu) and Mr. Tuan Cong Le were jointly charged and faced trial on indictment before Trim Circuit Criminal Court in respect of various offences arising out of the discovery, by members of An Garda Siochána, of a cannabis grow house at Ballinlough, Kells, Co. Meath on the 6th of June, 2012. They had been sent forward for trial by the District Court on the 6th of December, 2012, and first appeared before Trim Circuit Criminal Court on the 22nd of January, 2013.

2 On the 22nd of January, 2013, Mr. Tu was arraigned and pleaded guilty to a count of cultivation (of plants of the genus cannabis) contrary to s. 17 of the Misuse of Drugs Act 1977 (the Act of 1977) as substituted by s. 11 of the Misuse of Drugs Act 1984 (the Act of 1984). This was acceptable to the Director of Public Prosecutions and a nolle prosequi was later entered in respect of the other counts on the indictment relating to that accused. Mr. Tu was then remanded on bail in the first instance pending sentencing. However, although Mr. Tu was not in fact sentenced until the 9th of July, 2015, he went into custody on the 10th of September, 2014, following his arrest on that date for another similar offence.

3 The cases of Mr. Vu and Mr. Cong Le were adjourned on the 22nd of January, 2013, for trial at a later date. An application pursuant to s. 4E of the Criminal Procedure Act 1967, as substituted by the Criminal Justice Act 1999, was unsuccessfully brought on their behalf on the 13th of February, 2014, and their trial ultimately came on for hearing on the 30th of June, 2015.

4 On the morning of the trial, Mr. Cong Le also pleaded guilty on arraignment to a count of cultivation contrary to s. 17 of the Act of 1977 (as substituted). This was acceptable to the Director of Public Prosecutions and, as in the case of Mr. Tu, a nolle prosequi was later entered in respect of the other counts on the indictment relating to him. Mr. Cong Le was remanded on bail to be sentenced a later date.

5 The trial against Mr. Vu proceeded on the 30th of June, 2015, and lasted five days. He was convicted by the jury on all counts that he faced, namely (Count No. 1) possession of a controlled drug for the purpose of selling or otherwise supplying it to another, contrary to s. 15 of the Misuse of Drugs Act 1977; (Count No. 2) possession of a controlled drug, contrary to s. 3 of the Misuse of Drugs Act 1977; and (Count No. 3) cultivation (of plants of the genus cannabis) contrary to s. 17 of the Misuse of Drugs Act 1977, as substituted. However, Mr. Vu appealed his said convictions to this Court. In a judgment delivered on the 16th of November, 2015, this Court allowed Mr. Vu's appeal against his conviction on Count No. 1 and Count No. 2, respectively, but dismissed his appeal and affirmed his conviction on Count No. 3. Mr. Vu had been on bail up until his sentencing, save for three weeks immediately after his arrest while he was making arrangements to enable him to take up bail.

6 All three accused were sentenced on the 9th of July, 2015. Mr. Vu received a sentence of six years imprisonment with the final three years thereof suspended, backdated to take account of the three weeks he had spent in custody. Mr. Tu received a sentence of four years imprisonment with the last two and a half years thereof suspended, consecutive to a sentence of three years imprisonment that had been imposed upon him on the previous day, the 8th of July, 2015, at Naas Circuit Criminal Court for the aforementioned similar offence. In the case of Mr. Tu, the sentencing judge declined to give him credit for time served on the basis that this had already been taken into account by Naas Circuit Criminal Court. Finally, Mr. Cong Le received a sentence of four years imprisonment, the final three years of which were suspended, to date from the date of sentencing. Mr. Cong Le had been on bail at all stages.

7 The DPP seeks a review pursuant to s. 2 of the Criminal Justice Act 1993 (the Act of 1993) of the sentences imposed on Mr. Vu, Mr. Tu and Mr. Cong Le, respectively, on the grounds that they were unduly lenient.

8 In addition, Mr. Vu alone has appealed the severity of his sentence. In the circumstances his appeal is, in effect, a cross-appeal to the DPP's application for a s. 2 review of his case.

The Facts of the Case

9 Mr. Vu, Mr. Tu and Mr. Cong Le are all Vietnamese nationals.

10 A Mr. Donal Corrigan was the owner of a house at Ballinlough, Kells, Co. Meath. In August, 2011 he was seeking to rent this house and was approached by an Asian man who expressed interest in renting it. The Asian man said that he wanted to rent it for both his wife and his daughter who was studying accountancy. Mr. Corrigan agreed to do so, and he thought no more about it. The Asian man signed the lease in the name of ?Andy Lu?. However, he was subsequently identified as being Mr. Tu.

11 On the 6th of June, 2012, the gardaí, having previously had the house under surveillance, applied for and obtained a warrant to search it. On their arrival, they observed Mr. Tu at the back door, and a white Hi-Ace van belonging to him parked nearby. Mr. Tu provided his name and accepted that the van belonged to him. Mr. Corrigan would later identify this white van as being a vehicle that he had previously seen being driven by the Asian man to whom he had let the house.

12 On entering the house, the garda search party found that the entire house was in the process of being converted to facilitate the cultivation of cannabis, and some cannabis plants were already being grown there. There were sophisticated electrical adaptations, involving the bypassing of the electrical meter and the installation of special lighting units, fans, power ballast units and the cabling associated with such equipment. The floors were covered with plastic sheeting, and the windows were covered over. Bags of compost, plant pots and numerous drums of plant food were also found. In addition, 126 actual cannabis plants with a potential value of ?100,800 were found to be growing on the premises.

13 While the search was still ongoing, a red Chevrolet Aveo car arrived at the rear of the property. There were two males present in the vehicle. The driver identified himself to one of the gardaí present as Tuan Cong Le. The passenger gave his name as Choung Vu, and provided a date of birth and an address in England. The car was searched, and it was found to contain a number of items that gardaí believed would be used for the cultivation of cannabis plants, namely, more lighting units similar to those found in the house, more power ballast units, plant food, nutrients and tools.

14 It was later established in the course of the garda investigation that both Mr. Cong Le and Mr. Vu had earlier visited B & Q Naas, where they had been captured on CCTV, and had purchased there at least some of the tools and cultivation paraphernalia found in the car.

15 The red Chevrolet having been searched, gardaí concluded at that point that Mr. Tu along with Mr. Cong Le and Mr. Vu were involved in the cultivation of cannabis plants in the house for sale or supply, and they proceeded to arrest all three.

16...