Dang Khoa Nguyen v The Queen
[2020] VSCA 18
•14 February 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0033
| DANG KHOA NGUYEN | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | WHELAN, PRIEST and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 6 February 2020 |
| DATE OF JUDGMENT: | 14 February 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 18 |
| JUDGMENT APPEALED FROM: | [2013] VSC 674 (King J) |
---
CRIMINAL LAW – PROCEDURE – Application for extension of time to file application for leave to appeal against sentence – Convicted of murder and attempted murder – Total effective sentence 24 years’ imprisonment, non-parole period 19 years – Unsatisfactory explanation for substantial delay – No reasonable prospect that Court of Appeal would impose lesser sentence – Application for extension of time refused – Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, Derwish v The Queen [2016] VSCA 72, R v Davis (2003) 6 VR 538; [2003] VSCA 173 applied.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Ternovski | Gallant Law |
| For the Respondent | Mr P Bourke | Ms A Hogan, Solicitor for Public Prosecutions |
WHELAN JA:
In 2007 the applicant and two co-offenders were convicted of offences of murder and attempted murder committed on 8 November 2004. On 17 December 2007 the applicant was sentenced on those offences. His convictions were subsequently set aside and he was re-tried and convicted again in October 2013. He was sentenced after the re-trial on 11 December 2013. The sentencing judge in 2013 (King J) was different to the sentencing judge in 2007 (Williams J).
The sentence imposed in 2013 was a total effective sentence of 24 years’ imprisonment with a non-parole period of 19 years. The sentence which had been imposed in 2007 had been a total effective sentence of 21 years’ imprisonment with a non-parole period of 16 years.
The applicant seeks an extension of time within which to apply for leave to appeal the sentence imposed in 2013. The applicant applied for an extension of time by an application dated 7 March 2018.
Principles which apply on applications to extend time
Prior to the decision of the High Court in Kentwell v The Queen[1] the principles which applied to applications for extension of time to apply for leave to appeal against conviction and sentence were considered to be well settled. In R v Davis, Winneke ACJ, with whom Phillips and Eames JJA agreed, said:
[1](2014) 252 CLR 601; [2014] HCA 37 (‘Kentwell’).
The bases upon which this court will grant an application to extend time for leave to appeal against conviction and/or sentence are not in doubt. Those bases were conveniently summarised by Gowans J in the case of R v Darby and encapsulated in the reasons for judgment of the Full Court in the case of R v O’Keefe. They have been followed in this court subsequently in numerous applications, including R v Martin, R v Craker and other cases. As Gowans J said in the case of Darby:
The principles which govern an application for extension of time are as follows:
(1)the prescription by the statute of the time limit for giving notice is intended to secure finality, and compliance is intended to be required in the ordinary case;
(2)extension of the time is a matter for discretion of the Court, and the applicant must put material and considerations before the Court which will persuade it to exercise its discretion in favour of an extension;
(3)rigid restrictions cannot be imposed on the exercise of discretion, but in general the Court will require special and substantial reasons for extending the time;
(4)the longer the time which elapses since the expiration of the statutory period and the more the changes that have taken place in the meantime, the more exceptional will the circumstances put before the Court have to be;
(5)it is the practice of the Court not to grant any considerable extension of time unless it is satisfied that there are such merits in the proposed appeal that it would probably succeed;
(6)a reasonably satisfactory account of the failure to comply with the statutory requirements needs to be forthcoming.
In the case of O’Keefe, the court, having referred to those principles set forth by Gowans J, went on (at 5 of the report):
An applicant who has been dilatory or has acted in such a way as to indicate that he does not intend to appeal has small, if any, claim to the exercise of the discretion of the Court in his favour. On the other hand, if the applicant has acted promptly, his case will be considered very differently. Where there has been a long delay the practice of the Court has not been to grant the extension sought unless it is clear that the decision is attended with such doubt as to make it probable that the appeal will succeed.[2]
[2](2003) 6 VR 538, 539 [5]; [2003] VSCA 173, [5] (citations omitted).
As this Court recognised in Derwish v The Queen[3] (in the context of conviction appeals), these settled principles must now be read in the light of Kentwell.
[3][2016] VSCA 72, [55]–[56].
In Kentwell the High Court addressed the principles which apply in relation to applications for extension of time in which to apply for leave to appeal sentence. Relevantly, the Court:
·rejected a proposition which had been adopted by the Court of Criminal Appeal in New South Wales that it was necessary to consider whether, if an extension of time were refused, substantial injustice would result;[4]
·explained that applications for extensions of time in which to apply for leave to appeal against conviction raise different considerations to those raised where an extension is sought in relation to sentence;[5]
·emphasised that the discretion to grant an extension of time to seek leave to appeal against sentence is to be determined by asking whether it is just under the circumstances that such an order should be made, and that the discretion is a wide one;[6]
·rejected the proposition that considerations of finality in themselves provide a discrete reason for refusing to exercise the power to extend time in which to seek leave to appeal sentence;[7]
·confirmed that amongst the factors which had to be considered were the length of the delay, the reasons for it, and the prospects of success on appeal.[8]
[4]Kentwell (2014) 252 CLR 601, 613–14 [30]; [2014] HCA 37, [30].
[5]Ibid 613 [29].
[6]Ibid 613 [30].
[7]Ibid 614 [32].
[8]Ibid 614 [31], [33].
The applicable principles were summarised by this Court in Madafferi v The Queen.[9]
[9][2017] VSCA 302, [11].
The relevant sentences
The sentence imposed by King J on 11 December 2013 was as follows:
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1. | Attempted Murder | 25 years’ imprisonment | 12 years | 3 years |
| 2. | Murder | Life imprisonment | 21 years | Base |
| Total Effective Sentence: | 24 years’ imprisonment | |||
| Non-Parole Period: | 19 years | |||
| Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: | 3090 days | |||
One of the proposed grounds of appeal is that the learned sentencing judge erred by imposing a higher sentence than had originally been imposed in 2007. On 17 December 2007 the applicant had been sentenced following a trial before Williams J as follows:
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1. | Attempted Murder | 25 years’ imprisonment | 10 years | 4 years |
| 2. | Murder | Life imprisonment | 17 years | Base |
| Total Effective Sentence: | 21 years’ imprisonment | |||
| Non-Parole Period: | 16 years | |||
| Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: | 904 days | |||
Procedural history of the applications and the explanation for delay
The time within which the applicant was required to file a notice of application for leave to appeal against his sentence pursuant to s 279 of the Criminal Procedure Act 2009 was 28 days after the day of sentence. Time accordingly expired in relation to King J’s sentence on 8 January 2014. Pursuant to s 313 of the Criminal Procedure Act, the Court of Appeal, or the Registrar of Criminal Appeals, may extend time.
The applicant applied for an extension of time by an application dated 7 March 2018 signed by his then solicitor, Andrew Papadimitropoulos of the firm Papa Hughes Lawyers. That application was supported by an affidavit of Mr Papadimitropoulos sworn 6 March 2018. The Crown opposed the application and filed an affidavit of Matthew David Phillips sworn 29 May 2018.
On 25 June 2018 the Registrar of the Court of Appeal advised the applicant that the application for extension of time had been refused by him and notified the applicant of his entitlement to elect to have the application determined by the Court of Appeal.
By a notice dated 2 July 2018 the applicant did so elect.
By a notice dated 27 July 2018 Papa Hughes Lawyers notified the Court that it had ceased to act for the applicant.
The applicant filed an amended application for extension of time dated 16 October 2019. Then, on 6 November 2019, a new firm of solicitors acting on behalf of the applicant, Gallant Law Pty Ltd, filed a further amended application for extension of time. That further amended application for extension of time was supported by an affidavit sworn by Lauren Aphrodite Cassimatis, a solicitor at Gallant Law Pty Ltd, on 6 November 2019.
The application now before the Court is the hearing of the applicant’s election to be determined by reference to his further amended application.
Explanation for delay
The affidavits of Mr Papadimitropoulos and Ms Cassimatis give the following explanation for the delay.
Following the jury verdict in October 2013 the applicant terminated the engagement of both his solicitor, Victoria Legal Aid, and his counsel, Mr Hannebery.
The plea hearing was adjourned to enable the applicant to obtain new representation.
The applicant then engaged the firm of Tony Danos Solicitors and that firm acted for the applicant on the plea before King J. ‘T Danos’ of counsel is recorded as having appeared on the plea. Inquiries by Ms Cassimatis with Mr Tony Danos, the solicitor, and with Mr Tom Danos of counsel, revealed that Mr Tony Danos has little recollection of the matter and Mr Tom Danos none at all.
Inquiries undertaken by Ms Cassimatis with Mr Hannebery of counsel, who had appeared at the trial, revealed that Mr Hannebery had prepared a detailed advice on the prospects of a conviction appeal dated 12 November 2013 which he had forwarded to Victoria Legal Aid. The advice was to the effect that there was no basis for an argument that the verdicts were unsafe and unsatisfactory, that there was no basis for complaint as to the judge’s rulings or the charge, and that, while there was a potential issue of ‘controversy’ concerning the question of intoxication, in counsel’s view, the manner in which that issue had been addressed had not produced a substantial miscarriage of justice.
After the sentence on 11 December 2013, the applicant maintains he gave instructions to Mr Tony Danos to appeal his conviction. He was told that Mr Hannebery had advised that there was no prospect of a conviction appeal succeeding.
According to Ms Cassimatis’ affidavit, at that time the applicant was ‘focused solely on trying to overturn his convictions’, and he did not seek advice as to a sentence appeal. Ms Cassimatis deposes that whilst the applicant does not remember Mr Tony Danos saying anything about the merits of a sentence appeal, he believed as a result of discussion with him that Legal Aid would not fund an appeal against conviction or sentence.
The applicant sought to raise funds for a conviction appeal from his mother. Ms Cassimatis deposes that at this time, according to the applicant’s instructions, the applicant ‘still wanted to pursue a conviction appeal’.
By some time in 2017 the applicant’s mother had raised a sum which the applicant recalls as being around $3,000–$4,000. Ms Cassimatis then deposes, on the basis of instructions from the applicant:
By this time, Mr Nguyen had served more than 12 years of his sentence. He had lost his appetite for a conviction appeal and thought that, in any event, the amount saved by his mother was unlikely to be enough to fund the conviction appeal and he had no way of obtaining further funds. He therefore decided to pursue a sentence appeal instead.
In 2017 the applicant engaged Papa Hughes Lawyers. Mr Andrew Papadimitropoulos sent the applicant his contact details on 23 May 2017. In correspondence with Gallant Law Pty Ltd, Mr Papadimitropoulos has advised that Tony Danos Lawyers had previously forwarded the file to Haines and Polites and that he had obtained a single disc from that firm with the brief on approximately 22 November 2017.
Ms Cassimatis deposes that her instructions are that the applicant was given a cost estimate of $3,000 for the appeal, that he arranged for that sum to be deposited with Papa Hughes Lawyers, and that he instructed them to proceed.
Mr Papadimitropoulos in his affidavit deposes that he was given instructions to seek leave to appeal sentence on 7 October 2017. In relation to the delay to that point he deposes that he was given the following instructions:
I was instructed by the applicant that he had been previously advised that he would not be able to appeal his conviction and that VLA would not fund the conviction appeal. The applicant instructed me that he misunderstood this to mean that he had no basis for an appeal against conviction and/or sentence.
Mr Papadimitropoulos deposes that he contacted counsel in relation to the proposed sentence appeal on 11 October 2017. Between that date and February 2018 he sought and obtained materials, principally from the transcript provider. The last of the material sought was forwarded to counsel on 2 February 2018. In his affidavit of 6 March 2018 Mr Papadimitropoulos deposed that counsel had advised him that the applicant’s written case was ‘now ready for filing’.
Assessment of the explanation for delay
In substance, the explanation for delay is that until 2017 the applicant was ‘focused’ upon a conviction appeal. He had not sought advice in relation to a sentence appeal, although it is suggested that he understood the negative advice which had been received in relation to a conviction appeal also affected his position in relation to a sentence appeal and that Legal Aid would not fund either appeal. From October 2017, the delay was caused by the need to obtain relevant materials.
The applicant first gave instructions to pursue a sentence appeal in October 2017. By then, his proposed application was 3 years 9 months out of time.
If one accepts that there is a reasonable explanation for the delay between October 2017 and March 2018, that leaves a very considerable period of delay where the only explanation given is that the applicant was ‘focused’ upon bringing a conviction appeal and that he says he had a misunderstanding that advice he had been given about a conviction appeal would also affect his position in relation to a sentence appeal.
This is a matter where there has been a very considerable delay. The explanation for that very considerable delay is unsatisfactory. In the circumstances here, an extension of time of the period required could only be granted if there were proposed grounds of appeal which were compelling.
Proposed grounds of appeal
There are four proposed grounds of appeal:
1.The learned sentencing judge erred by failing to take into account the delay between the applicant’s arrest and his second sentencing.
2.The learned sentencing judge erred in finding that the applicant had entered into an agreement with the co-offender Bill Ho to kill or at least cause really serious injury to Hieu Trung Luu.
3.The learned sentencing judge erred by imposing a sentence that violates the principle of parity viz a viz the co-offender Bill Ho.
4.The learned sentencing judge erred by imposing a higher sentence than the sentence originally imposed by Williams J after the first trial.
Circumstances of the offending
The applicant has filed a revised written case in support of the proposed grounds of appeal should an extension of time be granted. The proposed written case sets out a summary of the facts relevant to the offending. For present purposes it is sufficient to set out that summary, which reads as follows:
Khoa Nguyen [the applicant] ran a heroin trafficking business with his subordinate, the co-offender Bill Ho. The business was supplying heroin to a wholesale customer, Mau Duong, on credit. On 7 November 2004, Khoa Nguyen became concerned that Mau Duong had absconded without paying. That night, Khoa Nguyen, Bill Ho and Khoa Nguyen’s brother, Quang Nguyen, went to Mau Duong’s last known address — a Housing Commission flat in Carlton.
On arrival, they found a number of people in the loungeroom. Some of them were sleeping, others watching TV. Mau Duong was not there. Bill Ho and Quang Nguyen repeatedly asked those present for Mau Duong’s whereabouts. The people in the flat told the co-offenders that Mau Duong did not live there and that they did not know where he was. But the co-offenders did not believe them.
Quang Nguyen waved a sword around. At one point, Khoa Nguyen pulled his brother away from the person he was threatening.
Bill Ho brought a revolver with him. Khoa Nguyen knew that his co-offenders took weapons to the flat but did not know that one of the weapons was a firearm. Bill Ho produced his gun and starting pointing it at various people in the room, spinning the barrel whilst demanding that they reveal Mau Duong’s whereabouts. At one point, the first victim, Chau Nguyen, woke up. Bill Ho was kneeling opposite him while Khoa Nguyen was sitting on a speaker at the end of the room. Khoa Nguyen said to Bill Ho ‘fuck him off’ or ‘get him off’. Bill Ho then pointed his gun at Chau Nguyen and asked: ‘That guy?’ Khoa Nguyen nodded and Bill Ho shot Chau Nguyen in the head (Charge 1 — Attempted murder). Miraculously, Chau Nguyen survived.
After this shot, the second victim, Hieu Luu — who had been sleeping on the bed in the loungeroom — woke up and started to stand up. Bill Ho then shot and killed him (Charge 3 — Murder). Quang Nguyen checked Hieu Luu’s pulse and said that he was dead. The co-offenders then fled, telling the occupants of the flat not to call the police or ambulance.
The sentencing reasons
Each of the sentencing judges, King J[10] and Williams J,[11] published detailed sentencing reasons.
[10][2013] VSC 674 (‘King J Reasons’).
[11][2007] VSC 540 (‘Williams J Reasons’).
King J began her reasons by setting out the maximum penalty and making some brief observations on the applicant’s background. He had come to Australia in 1970 as a 13 year old refugee. At the time of sentence in December 2013, he was 43 years of age. He had been 34 years of age at the time of the offence.[12]
[12]King J Reasons [2]–[3].
The applicant had extensive serious prior convictions for firearms offences, violent offences, and drug trafficking offences. The applicant’s criminal history was set out in detail by King J. Most notably, in 1994 he had been sentenced to a term of imprisonment of six years nine months with a non-parole period of four years for 15 counts of armed robbery, two counts of attempted armed robbery and two counts of causing injury intentionally or recklessly. At the time of the present offending the applicant was on a suspended sentence of imprisonment.[13]
[13]Ibid [4].
King J referred to the evidence revealing that the applicant was in the ‘business of trafficking heroin’ and that the co-offender Bill Ho was his ‘delivery man’. King J was satisfied beyond reasonable doubt that the applicant and his two co-offenders had gone to the premises looking for Mau Duong because of concern that he had absconded with heroin without having paid the applicant. King J did not accept that the applicant was an ‘equal partner’ with Bill Ho and found as a fact that the applicant was ‘the person in charge’.[14]
[14]Ibid [6]–[19].
After setting out the circumstances of the offending, including the fact that the two victims had had no prior association with drug trafficking or with any of the offenders, King J observed:
These offences are exceedingly high level examples of offences of murder and attempted murder. They are executions of entirely innocent young men who were asleep and had neither said nor done anything that could be seen as provoking, causing or in any way contributing to their death or injury.[15]
[15]Ibid [24].
King J was satisfied that the offenders had gone to the premises expressly to find Mau Dong. She found that the applicant intended to ‘demonstrate’ that he was ‘not to be taken lightly or trifled with’.[16] She was satisfied that Bill Ho had been acting under the applicant’s direction. She said:
I am satisfied that Bill Ho was acting under your direction, that he worked for you in your heroin trafficking business and this was not a frolic of his own, but an agreement that had been entered into prior to your attendance at the flat in Carlton. The agreement was to use violent means, if necessary, to recover the money or the heroin that was in the possession of Mau Duong, I am satisfied that when you told Bill Ho to fuck off Chau Nguyen, you were directing him pursuant to the agreement that you had entered into to use those violent means to kill Chau Nguyen, and as indicated you did nothing to say that the agreement was ended or that he must stop or not shoot anyone else. You remained in the position you occupied, sitting on top of the speaker, until after Hieu Luu had been shot and it was not until that point that you said that all of you should leave.[17]
[16]Ibid [26]–[27].
[17]Ibid [28].
King J was satisfied that the applicant had known that weapons were being taken into the flat, although she was not satisfied to the required standard that the applicant had known prior to entering the flat that one of the weapons was a firearm. She was satisfied that the applicant was aware Bill Ho was in possession of a firearm when he gave the specific instruction concerning Chau Nguyen.[18]
[18]Ibid [29].
The judge referred in some detail to the previous sentencing remarks of Williams J. She adopted in full Williams J’s description of the applicant’s personal circumstances.[19]
[19]Ibid [32].
In relation to the circumstances of the offence King J observed that the evidence in the trial before her had been different to that in the trial before Williams J. Before Williams J, Bill Ho had given evidence and the applicant had not. Before her, Bill Ho had not given evidence and the applicant had.[20]
[20]Ibid [31].
King J referred to and quoted extensively from authorities concerning sentences imposed after a re-trial, in particular, the judgment of this Court in Jeffrey Murdoch (a pseudonym) v The Queen[21] and the judgment of the High Court in R H McL v The Queen.[22] The judge said that she considered the sentence which had been imposed by Williams J to be manifestly inadequate.[23] She said that Williams J had found the applicant’s involvement to be ‘a different level’ to that which she found it to be.[24] King J said that on the evidence before her, and consistently with the jury verdict, the applicant ‘had entered into an agreement with Bill Ho to kill or at the least cause really serious injury to the two men who were shot’. She said that the applicant’s actions were consistent with him behaving like he was a ‘crime boss’. She observed that his ‘callous actions’ required condemnation ‘of a very high level’.[25]
[21](2013) 40 VR 451; [2013] VSCA 272 (‘Murdoch’). Murdoch has been overruled by the High Court in R v Bauer (a pseudonym) (2018) 359 ALR 359; [2018] HCA 40 but not in relation to this issue.
[22](2000) 203 CLR 452; [2000] HCA 46 (‘R H McL’).
[23]King J Reasons [39].
[24]Ibid [43].
[25]Ibid [43]–[44].
King J said that she would have imposed a sentence which was a great deal higher but for ‘the issue of parity with Bill Ho and the policy restraints that exist in relation to sentences from re-trials’.[26]
[26]Ibid [48].
Williams J’s Reasons need to be addressed only to the extent necessary to identify findings which bear upon the issue of whether it was open to King J to impose a greater sentence on the applicant than that imposed by Williams J.
Like King J, Williams J found that the conduct of the offenders in the flat was ‘cold blooded and ruthless’, and that they showed ‘callous and wanton disregard’ for their victims who had had no involvement in the drug transactions which had prompted the offenders to go to the flat and who were unknown to the offenders.[27]
[27]Williams J Reasons [49]–[50], [52].
Williams J’s conclusion as to the agreement made prior to the attendance in the flat was significantly different to that found by King J. Williams J did not accept a prosecution submission that she should be satisfied that the offenders went to the flat that night with the intention of killing ‘if necessary’ to recover the drug debt. She went no further than finding that the offenders went to the flat with the intention of recovering the drug debt.[28] In contrast, King J found there had been an agreement to use violent means if necessary.
[28]Ibid [29]–[30].
A further significant difference concerns the respective culpability of the applicant and Bill Ho. Williams J, on the basis of the evidence she heard, found that the applicant’s culpability in relation to the attempted murder (Chau Nguyen) was equal with that of Bill Ho.[29] In relation to the murder (Hieu Luu), Williams J found that the applicant played a ‘lesser role’ and that he was ‘less morally culpable’ than Bill Ho.[30] In contrast, King J found that the applicant was ‘the person in charge’ and the ‘boss’, under whose direction Bill Ho was acting. As King J observed, her findings placed the applicant’s involvement at ‘a different level’ to those of Williams J.
[29]Ibid [56].
[30]Ibid [57].
Submissions
The focus of the submissions on behalf of the applicant was on the proposed grounds of appeal. Counsel for the applicant accepted in the course of argument that the explanation for delay was such that an extension could not be granted in this case unless the prospects of success on an appeal were such that the appeal would probably succeed.
Counsel went through the proposed grounds in the sequence in which they appear in the proposed application; namely, delay, error in relation to the agreement, parity, an imposition of an increased term after a re-trial.
In relation to delay, counsel for the applicant relied upon Arthars v The Queen[31] where this Court explained that delay is to be taken into account as a mitigating factor because of the twin considerations of rehabilitation and fairness. Where there has been significant delay and a process of rehabilitation has begun, the sentence should not jeopardise that process. Further, where there has been considerable delay the sentence should reflect the fact that the matter has been ‘hanging over’ the offender’s head for some time. Counsel emphasised that the Court in Arthars had also observed that delay caused merely by the exercise of a right to contest criminal charges should never be regarded as ‘the fault’ of the accused. Counsel for the applicant referred to the very substantial delay, during which this matter had been ‘hanging over’ the applicant’s head by the time of sentence in 2013. That was a result of his contesting the criminal charges and of the series of appeals which eventually led to his re-trial. Counsel conceded that nothing had been put to the sentencing judge about delay on the plea. Counsel relied upon the fact that the sentencing judge had not referred to delay in her sentencing reasons and submitted that the inference must be drawn that she had failed to take it into account. It was submitted that counsel’s failure to raise delay as a mitigating factor on the plea should not preclude the matter being raised now on this application.
[31](2013) 39 VR 613, 620–1 [25]–[28]; [2013] VSCA 258, [25]–[28] (‘Arthars’).
In relation to proposed ground 2 concerning the agreement which the sentencing judge found the applicant had made with the co-offenders, counsel contrasted two passages in the King J Reasons. At one point King J said[32] that the applicant and his co-offenders had entered into an agreement prior to their attendance at the flat ‘to use violent means, if necessary, to recover the money or the heroin’. This finding was not challenged. Later, however, King J had said[33] that the applicant ‘had entered into an agreement with Bill Ho to kill or at least cause really serious injury to the two men who were shot’. It was submitted that the sentencing judge had made an error in concluding that there had been a specific agreement to shoot the second victim, Hieu Luu. It was submitted that the evidence could not possibly sustain a conclusion that there had been such a specific agreement in relation to Hieu Luu. It was submitted that the evidence was clear that Bill Ho shot Hieu Luu without any direct instruction in the flat from the applicant, unlike the position in relation to Chau Nguyen.
[32]King J Reasons [28], quoted at [41] above.
[33]King J Reasons [43], quoted at [45] above.
In relation to proposed ground 3 (parity), it was submitted by counsel for the applicant that Williams J’s finding of equal culpability in relation to the first shooting (Chau Nguyen) had been correct, and that King J ought to have found that Bill Ho’s culpability in relation to the second shooting (Hieu Luu) was greater than that of the applicant, as Williams J had found it to be. Bill Ho had been sentenced to a term of 20 years’ imprisonment for the murder, a year less than the applicant, and 10 years’ imprisonment for the attempted murder, two years less than the applicant.
In relation to proposed ground 4 (increased sentence after re-trial), counsel for the applicant relied upon R H McL and Murdoch.
The relevant passage from the High Court judgment in R H McL, with emphasis added by this Court in Murdoch, reads as follows:
If the appellant is convicted on any count at the re-trial, the sentencing judge will also have to take into account another important factor in the sentencing process. Ordinarily but not invariably, a successful appellant should not receive a longer sentence after conviction on a re-trial than he or she received at the original trial. If the sentencing judge at the re-trial thinks that the original sentence was manifestly inadequate, it is open to that judge in the exercise of the sentencing discretion to give a sentence higher than that imposed on the first occasion. But an exercise of discretion by a sentencing judge that increases the original sentence given to the accused is necessarily rare. That is because such an increase may be perceived, by the public and the accused, as containing a retributive element imposed because the accused had successfully appealed against his or her earlier conviction or sentence. If the raising of a sentence after a successful appeal became common, it might discourage appeals. Such a result would be contrary to the public interest, for an organised society has a vital interest in the proper administration of its criminal justice system. Rights of appeal are an important means of preventing the perpetuation of error in criminal trials.[34]
[34]R H McL (2000) 203 CLR 452, 475–6 [72]; [2000] HCA 46, [72], and Murdoch (2013) 40 VR 451, 488 [163]; [2013] VSCA 272, [163].
Counsel for the applicant emphasised these considerations and submitted that an increase in sentence after a re-trial could only be justified where the original sentence was shown to have been manifestly inadequate or where the factual findings were substantially different. It was submitted that Williams J’s sentence had not been manifestly inadequate and that, although there were different findings made, they were not of such significance as to warrant an increase in sentence.
In the course of submissions, counsel for the applicant was asked to address the issue of whether, if an extension was granted, leave to appeal would be refused because there was no reasonable prospect that the Court of Appeal would impose a less severe sentence than King J’s sentence. In response he submitted that if an extension were granted the Court of Appeal ought to impose a less severe sentence because of the overriding importance of the public policy principles governing the circumstances in which a sentence can be increased after a re-trial, and because of the disparity in sentence with Bill Ho.
In relation to delay, counsel for the respondent did not accept that the sentencing reasons were entirely silent on the issue. Reference was made to a passage where the judge had referred to the applicant’s participation in programs and his behaviour in prison.[35] It was said that this was a reference to the rehabilitative aspect of the delay. It was accepted that the sentencing judge had not referred to the other mitigating aspect of delay (‘hanging over the offender’s head’), but it was submitted that the leniency of the sentence was consistent with the sentencing judge having taken that matter into account.
[35]King J Reasons [50].
At this point counsel for the respondent made a submission repeated a number of times thereafter. It was that King J’s sentence (and Williams J’s sentence even more so) was a lenient one in the circumstances, and that if an extension were granted there was no reasonable prospect that the Court of Appeal would impose a lesser sentence. It was submitted that the sentence imposed by Williams J had been manifestly inadequate and that it was open to King J to reach that conclusion.
In relation to proposed ground 4 (increase sentence after re-trial) it was submitted that the reasons for the increase were clear. Not only had King J correctly concluded that Williams J’s sentence was manifestly inadequate, but she had formed a different conclusion as to the applicant’s role, as the ‘boss’; and as to the agreement made prior to the attendance at the flat.
As to proposed ground 2 (agreement error), it was submitted that the references to an agreement in the two passages were consistent and that King J had not erroneously proceeded on the basis that there was some further specific instruction in relation to Hieu Luu.
In relation to proposed ground 3, it was submitted that the assertion of disparity was not well founded. There was a significant difference in their respective roles. The applicant was seeking to recover his drug debt. He was the ‘boss’. He specifically directed the first shooting. King J found that Bill Ho was acting under the applicant’s direction at all times.
Analysis
In my opinion this application should be refused because if it were granted there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than that imposed by King J.
The applicant has a bad history of criminal offending, both of violence and drug trafficking. Prior to this offending he had been sentenced to a substantial term of imprisonment. At the time of this offending he was serving a suspended sentence.
The applicant, as the ‘boss’, was seeking to recover his drug debt. In the course of seeking to recover that debt he has murdered one individual and attempted to murder another. It is true that the ‘shooter’ was not the applicant. But the ‘shooter’ was acting pursuant to an agreement made with the applicant, and was acting under his direction.
The murder and the attempted murder involved callousness and ruthlessness beyond even that of the ‘execution’ of a drug debtor to recover a debt or as retribution for non-payment. These victims were entirely innocent. They were shot as a demonstration to others that the applicant was not a person ‘to be taken lightly or trifled with’.
In my opinion the sentences imposed, upon an offender who could not rely upon the mitigating effect of a guilty plea, could not be reduced on appeal even if all of the proposed grounds of appeal were found to be made out.
In any event, the explanation for delay is unsatisfactory and the delay here is extraordinarily long. The proposed grounds of appeal would need to be compelling in order to grant an extension of the duration required. In my view these proposed grounds cannot be so characterised.
The sentencing judge did not refer to the mitigating effect of delay, at least in relation to the ‘hanging over the head’ component of that consideration. In my view, however, it cannot be concluded from that failure that the judge had not taken delay into account. The sentencing judge was a very experienced judge and the delay here was obvious and substantial, as is graphically demonstrated by the sentencing judge’s declaration of 3,090 days’ pre-sentence detention. I find it impossible to accept that the sentencing judge overlooked the significance of delay in this case.
In relation to proposed ground 2, I do not consider that the sentencing judge made a specific error. The relevant agreement was the agreement which was made prior to entering the flat. Whilst the judge’s later reference to the two victims by name may be seen as ambiguous, and as suggesting a specific agreement in relation to each of those specific people, I do not consider that the reasons read as a whole reveal the existence of the error asserted.
In my view the applicant has no justifiable complaint of disparity in relation to the offender Bill Ho. I do not accept that his moral culpability was equal to that of Bill Ho in relation to the first victim and lower in relation to the second. This is because of the role of the applicant, as ‘the boss’, and the fact that all of the offenders were in the flat for the purpose of recovering the applicant’s drug debt.
In relation to proposed ground 4, in my view this is one of those rare cases where an increased sentence after a re-trial was justified both because the initial sentence was manifestly inadequate and because the factual findings as to the applicant’s role were significantly different after the re-trial.
In my opinion the application for an extension of time should be refused.
PRIEST JA:
I agree with Whelan JA.
WEINBERG JA:
I agree with Whelan JA.
0
12
0