Irish Court of Appeal
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URL: http://www.bailii.org/ie/cases/IECA/2014/CA55.html
Cite as: [2014] IECA 55
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Judgment
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THE COURT OF APPEAL The President. Birmingham J. Sheehan J. 255/13 256/13 The People at the Suit of the Director of Public Prosecutions Respondent V
Ba Nguyen and Ha Nguyen Appellants Judgment of the Court (ex tempore) delivered on the 4th day of December 2014 By Mr. Justice Sheehan 1. These are appeals against severity of sentence. 2. At Trim Circuit Court on the 7th June, 2013, Mr. Ba Nguyen and Ms. Ha Nguyen both pleaded guilty to the offence of cultivating cannabis contrary to s. 17 of the Misuse of Drugs Act 1977, as amended. 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. 3. In their appeals to this Court both appellants argue that the learned trial judge erred in principle in holding that these offences were within the higher range. Background Personal circumstances of Mr. Ba Nguyen Personal circumstances of Ms. Ha Nguyen Sentence hearing 8. It was also accepted that the second named 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. 9. 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. 10. In passing sentence the learned 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. 11. The mitigating factors identified by the learned 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 gardaí and their expressions of remorse were also taken into account. 12. In imposing a six year prison sentence, the learned sentencing judge identified the offence as being at the higher range. However, he noted the fact that both appellants were likely to experience difficulties in serving the said sentences as they were non nationals who spoke little or no English and he suspended the final two years of the sentence. This appeal 14. The court considered these submissions and held that the learned 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 counsel for the appellants in light of the court’s finding. Conclusion 16. The Court holds in light of these and other mitigating factors the proper course is to suspend unconditionally the balance of the 3 year sentence it now imposes in lieu of the original sentences |
