Court of Appeal reduces ten-year sentences for cannabis cultivators, noting exploitation and lack of planning roles.

THE COURT OF APPEAL

Appeal No: 163/14

Appeal No. 162/14

Birmingham J.

Sheehan J.

Mahon J.

The People at the Suit of the Director of Public Prosecutions

Respondent

- And -

Phuc Nguyen Le and Hong Thi Nguyen

Appellants

Judgment (ex tempore) of the Court delivered by Mr. Justice Mahon on the 13th day of July 2015

1. Both appellants were convicted of cultivation contrary to s. 17 of the Misuse of Drugs Act 1977 (as substituted by s. 11 of the

Misuse of Drugs Act 1984) and s. 27 of the Misuse of Drugs Act 1977 (as amended by s. 6 of the Misuse of Drugs Act 1984). 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.

2. Both appeals are against severity of sentence.

Facts

3. The appellants were arrested and charged following a raid by An Garda Síochána 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.

4. The appellant’s grounds of appeal are, in effect, that the learned 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 learned 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 is further criticised for imposing a sentence based on the significant value of

the drugs where the amount is not a necessary ingredient of the offence. It was submitted on behalf of the respondent that the

value of the drugs plants was a relevant factor in the approach to sentencing, and that the learned 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.

5. The learned sentencing judge quite correctly described the cannabis growing operation as sophisticated, elaborate and substantial.

He also remarked on the high potential value of the plants when cultivated. He clearly attached a great significance to the fact that

the appellants as the gardeners are cultivators of the plants had played a vital role in the operation, and that without this

involvement such an operation could not succeed. He placed the offences, which carried a maximum sentence of fourteen years, at

the higher end in terms of their gravity and proceeded to sentence both appellants to ten years, but with different suspended

elements in each case.

6. The court is satisfied that there was an error of principle in the learned 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 these 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. They were merely workers, and had been

brought into this country for that purpose. They were obviously vulnerable to exploitation and may not have had absolute freedom to

walk away from their involvement. On this basis 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.

7. It is this court’s view that the appropriate sentences before mitigating factors are taken into consideration are considerably less

than ten years in both cases. The mitigating factors in the two cases are different, and these must be reflected in the individual

sentences. In Mr. Nguyen’s case, he did have a relevant previous conviction in 2007 in the U.K., whereas Mrs. Nguyen has no

previous convictions. Mrs. Nguyen appears to have co-operated to a greater extent than did her husband. There is also the fact that

both appellants are now in a strange country, far from home, and have little or no English and have not had, and probably will not

have, family visits while in prison.

8. The court will therefore impose the following sentences in substitution of the sentences imposed in the Circuit Criminal Court. In

the case of Mr. Nguyen the sentence will be five years with the final twelve months suspended for a period of two years post release.

In the case of Mrs. Nguyen the sentence will be three and a half years with the final six months suspended for a period of two years

post release.

9. Appropriate bonds will be required in relation to the suspended element of the sentences, in respect of both appellants.