and Khai Sin Mong v The Queen - [2015] VSCA 33

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0048
KHAI SIN MONG	Applicant
v
THE QUEEN	Respondent

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JUDGES:	OSBORN, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 March 2015
DATE OF JUDGMENT:	6 March 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 33
JUDGMENT APPEALED FROM:	R v Mong (Unreported, County Court of Victoria, Judge Taft, 22 November 2013)

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CRIMINAL LAW – Sentence – Trafficking in a drug of dependence – Large commercial quantity – Prior conviction for trafficking drug of dependence – Sentence of 11 years and 6 months not excessive – Non-parole period of 8 years and 6 months not excessive – Not reasonably arguable that a different sentence should have been passed – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr G P Faris QC	Reynolds Legal
For the Respondent	Ms F L Dalziel	Ms V Anscombe, Acting Solicitor for Public Prosecutions

OSBORN JA
PRIEST JA

BEACH JA:

Introduction

On 17 April 2013, the applicant pleaded guilty to a charge that between 1 December 2009 and 12 August 2010 he trafficked in a drug of dependence namely diacetylmorphine (heroin) in a quantity that was not less than the large commercial quantity applicable to that drug of dependence (trafficking in a drug of dependence — large commercial quantity contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981). Following a plea hearing on 23 August 2013, the applicant was sentenced on 22 November 2013 as follows:

Charge on Indictment Offence Maximum Sentence

1 Trafficking in a drug of dependence – large commercial quantity [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71] Life imprisonment [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71] 11 years, 6 months

Total Effective Sentence: 11 years and 6 months’ imprisonment

Non-Parole Period: 8 years and 6 months

Pre-sentence Detention Declared: 1198 days

6AAA Statement: 15 years with a non-parole period of 12 years

The applicant seeks leave to appeal against his sentence on the following grounds:[1]
[1]Originally the applicant relied upon additional grounds of appeal based upon the High Court’s decision in Barbaro v The Queen; Zirilli v The Queen (2014) 88 ALJR 372 (delivered after the applicant was sentenced by the judge). However, at the hearing of this application, the applicant abandoned these grounds because of this Court’s subsequent decision in Matthews v The Queen; Vu v The Queen; Hashmi v The Queen [2014] VSCA 291: see in particular [19], [21] and [139] (Warren CJ, Nettle and Redlich JJA), [154] and [161] (Priest JA and Lasry AJA) .

Manifest excess
1. The head sentence of 11 years 6 months is manifestly excessive.
2. The non-parole period of 8 years 6 months is manifestly excessive.
3.The statement under s. 6AAA of the Sentencing Act of a head sentence of 15 years is manifestly excessive.
4.The statement under s. 6AAA of the Sentencing Act of a non-parole period of 12 years is manifestly…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading and Khai Sin Mong v The Queen

Details

AGLC: and Khai Sin Mong v The Queen [2015] VSCA 33
Case: [2015] VSCA 33
Decision Date: 6 March 2015

CaseChat Overview and Summary

The appellant, Khai Sin Mong, was convicted of trafficking in a large commercial quantity of a drug of dependence. He brought an appeal against his sentence of 11 years and 6 months imprisonment, with a non-parole period of 8 years and 6 months. The Crown appealed the non-parole period as being too short. The High Court of Australia was tasked with determining whether the sentence was excessive and whether the non-parole period was appropriate.

The central legal issue before the court was whether the sentence imposed was excessive, considering the nature of the offence and the appellant's prior criminal history. Additionally, the court needed to assess whether the non-parole period was adequate in light of the totality of the circumstances and the principles of sentencing.

The court found that the sentence of 11 years and 6 months was not excessive. It considered the nature of the offence, the quantity of drugs involved, and the appellant's prior conviction for a similar offence. The court also reviewed the totality of the circumstances, including the appellant's role in the offence and the impact on the community. In relation to the non-parole period, the court determined that 8 years and 6 months was not excessive, as it provided sufficient deterrence and reflected the seriousness of the crime. The court held that it was not reasonably arguable that a different sentence should have been imposed.

The High Court refused the application for leave to appeal, affirming the sentence and non-parole period as appropriate. The court concluded that the sentence and non-parole period were commensurate with the gravity of the offence and the appellant's criminal history.

Orders