DPP (Cth) v Thai
[2014] VSCA 122
•16 June 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0016
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Appellant |
| v | |
| KIM HOANG THAI | Respondent |
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| JUDGES | NETTLE and BEACH JJA and ALMOND AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 16 June 2014 |
| DATE OF JUDGMENT | 16 June 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 122 [1st Revision, 19 June 2014, [2]] |
| JUDGMENT APPEALED FROM | DPP v Thai (Unreported, County Court of Victoria, Judge Allen, 19 December 2013) |
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CRIMINAL LAW – Crown appeal against sentence – One charge of conspiring to commit an offence of importing marketable quantity of a border controlled drug, namely heroin – One charge of trafficking a marketable quantity of a controlled drug, namely heroin – Whether total effective sentence of 9 years with a non-parole period of 5 years’ imprisonment manifestly inadequate – Parity – Whether sentence relative to sentence imposed on co-offender offended principle of parity – Mitigating considerations – Previous good character – Respondent aged 55 years with no prior offending – Vulnerable to co-offenders’ requirements – Delay – Whether respondent had control over length of delay – Rehabilitation – Respondent achieved considerable rehabilitation between arrest and sentencing – De La Rosa v R (2010) NSWLR 1, Nguyen & Pham v R (2010) 205 A Crim R 106, DPP v Bui (2011) 31 VR 673 referred to – Criminal Code (Cth) ss 11.5(1), 302.3(1) and 307.2(1).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr O P Holdenson QC | Solicitor for the Commonwealth Director of Public Prosecutions |
| For the Respondent | Mr L W Hartnett with Mr P J Doyle | Revill & Papa Lawyers |
NETTLE JA
BEACH JA
ALMOND AJA:
This is a Crown appeal against a total effective sentence of nine years’ imprisonment with a non-parole period of five years imposed on the respondent (‘Thai’) on pleading guilty to one charge of conspiracy to import a marketable quantity of a border controlled drug, namely, heroin, contrary to ss 11.5(1) and 307.2(1) of the Commonwealth Criminal Code (‘the Code’) and one charge of trafficking a marketable quantity of a controlled drug, namely, heroin, contrary to s 302.3(1) of the Code.
The individual sentences, orders for cumulation and ancillary orders are as follows:
Charge on indictment Offence Maximum Sentence 1. Conspiracy to commit an offence of imported a marketable quantity of a border controlled drug contrary to ss 11.5(1) and 307.2(1) Criminal Code (Cth). 25 years’ imprisonment and/or 5,000 penalty units. 7 years’ imprisonment to commence on 19 December 2015. 2. Trafficking a marketable quantity of a controlled drug contrary to ss 302.3(1) Criminal Code (Cth). 25 years’ imprisonment and/or 5,000 penalty units. 4 years’ imprisonment to commence on 19 December 2013. Total effective sentence: 9 years’ imprisonment with a period of 5 years’ imprisonment to be served before being eligible for parole. Pre-sentence detention declared: 382 days. 6AAA Statement: 12 years’ imprisonment with a period of 8 years’ imprisonment to be served before being eligible for parole.
The Crown contends that the individual sentences, total effective sentence and non-parole period are manifestly inadequate.
The facts of the offending
The facts are not in dispute. The judge summarised them, as follows:
Charge 1 relates to the allegation that you conspired with your de facto partner, Quang Vo, and two other uncharged conspirators, Phuong Map and Ahn Sao, who was in Vietnam, to import a total of 1251.97 grams of pure heroin from Vietnam into Melbourne. Nine couriers, who had been recruited by Mr Vo, were utilised to import this heroin and did so by internally concealing pellets of compressed heroin powder in their bodies. The particular importations which were carried out pursuant to the conspiracy are set out in a table at paragraph 15, p.4 of Exhibit A. That table demonstrates that, between 16 February 2009 and 1 March 2009, nine separate importations were effected by nine separate couriers who had been recruited by Mr Vo.
Those couriers on the whole arrived at Melbourne Airport but also, in one case, at Darwin and, in two other cases, at Perth, having concealed pellets of heroin within their bodies. Several of them were arrested on arrival, but at least four were not. In relation to Charge, 1 it is estimated that the wholesale value of the heroin that was conspired to be imported - namely the 1251.97 grams - was between $550,000 and just under $800,000.
In relation to the context of the offending concerning Charge 1, as I have said, you were the de facto partner of Mr Vo. He had been involved in the recruitment of couriers — that is heroin couriers — on behalf of other people in Melbourne for several years. He and other co-conspirators Phuong Map and Ahn Sao had been engaged in the importation of heroin since earlier in 2008. You were introduced to Mr Vo by a mutual friend early in 2008 and he moved in to live with you at your house in Arthur Street, St Albans, in about mid-2008. There is no issue, as I understand it, that initially you had no knowledge of his illicit activities in relation to heroin importation and trafficking.
Of course, not only did you have no knowledge of those matters, there is no evidence or suggestion that you had any prior involvement in such importation or trading. You did become aware quickly that Mr Vo was engaged heavily in gambling at the casino, which seemed to be at a problematic level. Eventually you became aware that he was involved in drug importation and trafficking, probably to fund his gambling and gambling debts. Once you became aware of these drug importation and trafficking activities on the part of Mr Vo, you agreed to take an active role, under his instructions.
Mr Vo’s role, as I have mentioned, was to recruit and cultivate contacts at Crown Casino and to persuade them to become drug couriers on behalf of the syndicate effectively operated by Mr Phuong Map. Mr Vo was paid $5,000 for each recruited courier who completed the successful importation of heroin by Mr Map. Mr Vo was also given the opportunity to purchase heroin from every fourth successful importation, at cost price, which he in turn would sell to at least two established dealers in Melbourne.
In relation to the couriers, having recruited them, Mr Vo would then arrange for them to travel to Vietnam. He would communicate with the courier, providing instructions and information about the arrangements he was making. He would provide monetary advances to them to assist them to fund their trips. He would make arrangements with Ahn Sao in Vietnam for the courier to be supplied with the pellets of heroin. He would provide specific instructions to the couriers as to the manner and method of internally concealing the pellets of heroin, as well as how to deal with the Australian Customs authorities on their return.
Having travelled to Vietnam and obtained and concealed the heroin, the couriers would return to Australia, usually arriving in Melbourne as I have said, where Mr Vo would arrange to meet them either at the airport or a day or two later at an agreed place, in order to obtain the heroin from them. Mr Vo would meet with the couriers to discuss and calculate the final payment owed to them. You were involved with Mr Vo in various ways, including being present and helping him to calculate the final sums payable to couriers.
In the Crown’s submissions on sentence, the Crown have helpfully summarised at paragraph 13(d) on p.4 of Exhibit B the specific acts you carried out in performing your role in Mr Vo’s drug importation enterprise. Amongst other things, you maintained contact with Ahn Sao in Vietnam and Mr Map in Melbourne, including placing orders with Mr Map so that Ahn Sao would be supplied with heroin to supply Mr Vo’s couriers in Vietnam. You would receive regular updates from Mr Vo as to the status of pending couriers and dealings with Ahn Sao and Phuong Map. You were present during telephone conversations between Mr Vo and Ahn Sao. You discussed advanced payments with the family member of a particular courier prior to his return from Vietnam. You kept records in relation to advanced payments made to other couriers who had been recruited by Mr Vo. You attended meetings, as I have said, where successful couriers handed over the imported heroin to Mr Vo, and helped to calculate the final payments to be made to those couriers upon their return, after deducting any advanced payments that had been made. You transferred money to Ahn Sao in Vietnam in relation to advanced payments he was making to some couriers. Whilst Mr Vo was, on at least one occasion, in Vietnam, you managed the couriers and coordinated the Australian side of the importation activities which Mr Vo was conducting through these couriers.
In relation to Charge 2, the allegation is that you engaged in trafficking heroin to local drug traffickers on a wholesale level, usually at the direction of Mr Vo but on some occasions independently and without his knowledge. The total amount trafficked, in which you were involved, was some 490 grams; that is 343 grams of pure heroin. The wholesale value of that heroin trafficked was between $225,000 and just under $240,000. In relation to Charge 2 the context of your role in the offending was that, while Mr Vo was on occasions involved in selling some of the uncut heroin, which had been imported by his couriers, to local drug traffickers, you assisted him in those activities under his direction by keeping track of finances to ensure that purchasers accounted for heroin obtained on credit. You were also responsible for the storage of some of the heroin product.
As I have said, on some occasions you engaged directly and independently of Mr Vo in trafficking to two of his customers, Cuong Hien Tran and Than Hung Nguyen as the Crown have conceded, ‘at least in part because you were concerned that Cuong Vo would gamble the proceeds of such sales’. As part of your role in assisting Mr Vo you also requested your son, Minh Hoang Thai, to allow some of the imported heroin product to be stored in the garage of his family home. To your shame and regret, I accept, that resulted in your own son having been sentenced by me to a term of imprisonment recently, as a result of what you asked him to do on your behalf.
In relation to the specific steps that you took in assisting Mr Vo in the trafficking of heroin and engaging on some occasions in heroin trafficking yourself to his customers, again the Crown have conveniently summarised these matters at paragraph 13(d), p.5 of Exhibit B, Crown Submissions on Sentence.
Your role included keeping records of finances of the heroin trafficking business and ensuring that purchasers accounted for heroin obtained on credit; storing and collecting the heroin when it was required for sale; arranging for, as I have said, heroin to be stored at your son’s residence in Taylors Hills, and having independent access to his garage for the purpose of collecting it from time to time; transporting heroin from your son’s property in Taylors Hill for storage elsewhere and sale respectively; asking your son on occasions to transport heroin from his garage to your premises in St Albans on at least two occasions; and, as I have said now several times, engaging in trafficking independently without Mr Vo’s direct knowledge on some occasions.
As is well documented, all of this activity came to light as a result of an extensive police investigation which involved a great deal of surveillance and telephone intercept material being gathered. As a result of all that, search warrants were obtained and executed in March 2009. On 2 March 2009 you were arrested at the time of the execution of a search warrant at your home in Arthur Street, St Albans. That is your home where you live with Mr Vo. You were subsequently interviewed and made false denials. As I have said, eventually, to your credit, you entered a plea of guilty in relation to these matters in January this year [2014]..
Quantity and value of drugs
The weight of pure heroin comprised in charge 1 was 1,251.97 grams and the estimated value of it was:
·$555,520–$793,800 wholesale;
·$1,043,175 street value at 20 per cent purity; and
·$2,086,350 street value at 10 per cent purity.
For charge 2, the salient details of the offending were that:
· Between 1 October 2008 and 2 March 2009, Thai trafficked heroin to local drug traffickers on a wholesale level, often but not always at the direction of Vo.
· The total quantity so trafficked was 343 grams of pure heroin.
· The estimated (wholesale) value of that heroin was between $227,500 and $236,250.
The sentence imposed on Vo
Thai’s co-offender, Vo, entered a plea of guilty at a much earlier stage and on 30 March 2012 was sentenced to a total effective sentence of only two years and 10 months’ imprisonment with an order that he be released after serving 12 months’ imprisonment on a Commonwealth recognisance order of $500. The remarkable leniency of that sentence was explicable in part by reason of the fact that, at the time of sentencing, Vo was terminally ill with cancer, had provided substantial past co-operation to the authorities and had undertaken to provide substantial future co-operation.
The Crowns contentions
Despite the leniency of the sentence imposed on Vo (against which the Crown did not appeal), the Crown contends that Thai’s sentence was manifestly inadequate in view of the serious nature and gravity of her offending; the need for general deterrence of drug importation and trafficking offences; the need for consistency in sentencing and, therefore, consistency with sentences imposed in similar cases in Victoria and throughout the Commonwealth; the fact that Thai’s plea came only late, after a contested committal hearing and after the matter had been set down for trial; the limited extent of Thai’s remorse; the extent to which she was responsible for the delay between her arrest in 2009 and her sentencing in 2013; and the limited significance of her past good character in sentencing for drug importation offences.
It is appropriate to deal sequentially with the sentencing considerations so identified by the Crown.
Nature and gravity of the offending
To begin with, as the Crown submitted, the gravity of drug importation and trafficking offences is largely informed by the quantity of drugs involved.[1] Value is also important. Here, the quantity of heroin involved in charge 1 was substantial. The pure weight of 1,251.97 grams was more than 600 times the minimum marketable quantity of two grams and only just shy of the commercial quantity threshold of 1.5 kilograms. The potential value of that was anywhere between half a million dollars and $2 million. The quantity involved in charge 2 was not as great — the pure weight was 343 grams — but the potential value of it was still in excess of $200,000.
[1]Wong v The Queen (2001) 207 CLR 584, 609 [67]–[69] (Gaudron, Gummow and Hayne JJ); R v Pidoto (2006) 14 VR 269, [40]–[41]; R v Bala (2010) 201 A Crim R 505, [12]; Nguyen v R (2011) 31 VR 673, 676 [2]; Mokbel v R [2013] VSCA 118, [107]; Dao v R [2014] VSCA 93, [14].
In this case, the scope of the offending was significant, too. It involved no less than nine couriers bringing substantial quantities of heroin into Australia. Thai played an active hands-on and managerial role in the enterprise and her involvement was prolonged and critical. The extent of her moral culpability was high. She was aware of the nature and approximate quantity of the drugs and she must be taken to know that, once distributed, they were likely to inflict real and lasting harm on the community.[2] She nevertheless embraced the risk of facilitating the importation and movement of the drugs with a view to the profits which she hoped that Vo and she would derive from the offending. It followed, as the Crown submitted, that the second to ninth sentencing considerations identified by Maxwell P in Nguyen v R[3] were engaged.
[2]DPP (Cth) v Bui (2011) 32 VR 149, 157 [42].
[3](2011) 31 VR 673, 681-2 [34].
Need for general deterrence
Next, as the Crown submitted, authority makes plain that the principal sentencing consideration in cases of drug importation and trafficking is general deterrence. As Maxwell P remarked in Nguyen,[4] the sentence to be imposed ‘must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment’. The importance of achieving consistency with sentences passed in comparable cases goes hand in glove with that requirement.[5] We accept that, judged by comparison to comparable cases, the sentence imposed in this case is prima facie unduly lenient.[6]
[4]Ibid [34(8)].
[5]Hili v The Queen (2010) 242 CLR 520 536-538 [53]-[57]; DPP (Cth) v Bui (2011) 32 VR 149, 157-158 [44]-[46]; DPP (Cth) De La Rosa (2010) 79 NSWLR 1,31-32 [123]-[126] (Basten JA); Nguyen & Pham v R (2010) 205 A Crim R 106, 133 [109].
[6]Cf De La Rosa (2010) 79 NSWLR 1,53 [224].
Remorse and extent of co-operation
Turning to subjective considerations, the position becomes more complex. The Crown criticized the limited extent of Thai’s remorse and degree of co-operation with the authorities, and the extent to which she claimed that delay should operate as a mitigatory circumstance. Although she co-operated in relation to the execution of a pecuniary penalty order, and it was accepted that was indicative of remorse,[7] the Crown emphasised that she did not offer any other assistance of the kind freely given by Vo. The Crown conceded that Thai’s guilty plea could be seen as reflecting a degree of willingness to facilitate the course of justice and therefore as further evidence of remorse. But, as the Crown stressed, Thai’s plea came late, on 31 January 2013, and only after the trial had been fixed to commence on 21 January 2013, a contested committal hearing had been conducted between 13 and 15 September 2010 and a Basha enquiry had been undertaken between 11 and 23 April 2012.
[7]Cameron v The Queen (2002) 209 CLR 339, 343.
The Crown acknowledged that there was a very substantial delay between Thai’s arrest in 2009 and her sentencing in December 2013. But counsel for the Crown argued that, until Thai pleaded guilty at the eleventh hour on 31 January 2013, the Crown was compelled to proceed through a contested committal hearing, several directions hearings, a Basha enquiry and pre-trial argument. Thereafter, the delay was largely due to Thai requiring time to obtain psychological material to tender in support of her plea in mitigation of penalty. In those circumstances, counsel for the Crown submitted, it was important to keep in mind the observation of Redlich JA in Arthars v R[8] that, ‘when considering whether a delay requires the element of fairness to be taken into account as a mitigating factor, the court must have regard to the degree to which the accused had control over the length of that delay’.
[8][2013] VSCA 258 [28].
Previous good character
The Crown acknowledged that Thai stood to be sentenced as a first offender without prior criminal conviction and with much to commend the way in which she had risen above hardship and adversity in Vietnam and since coming to this country. But, as counsel for the Crown rightly emphasised, in cases of sentencing for the importation of drugs, previous good character ordinarily has less significance than it may have in other cases.[9]
[9]Nguyen and Phommalysack v R (2011) 31 VR 673, 681-2 [34(10)].
Non-parole period
Finally, by way of alternative submission, counsel for the Crown contended that, even if the court were not persuaded that the individual sentences and total effective sentence were inadequate, the non-parole period of five years, representing only 56 per cent of the head sentence, was plainly inadequate for offending of the nature and gravity in question.
Respondent’s contentions
Counsel for the Thai argued that it was apparent from the judge’s sentencing remarks that his Honour gave close and careful attention to each of the sentencing imperatives urged by the Crown and that the sentence imposed reflected a principled synthesis of relevant considerations.
In counsel’s submission, it was also evident that the judge had made a number of findings which were contrary to the Crown’s contentions and that there was no proper basis for the Crown now to gainsay them.
For example, the judge found that the delay was not referable to any fault or neglect on Thai’s part and the Crown had not challenged that finding. It followed, counsel said, that there was no reason to dilute the mitigating force of delay; indeed to the contrary, its significance was enhanced by the judge’s further finding that, during the period of delay, Thai had achieved a considerable degree of rehabilitation.
Counsel argued that the judge was also entitled to find, as his Honour did, that Thai experienced deep and genuine shame and remorse as a result of her conduct and had accepted that what she had done was wrong. That bore significantly upon her prospects of rehabilitation. In counsel’s submission, the judge was right, too, to treat Thai’s previous good character as significant because, in view of it and the degree of rehabilitation she had achieved since her arrest, it was likely that Thai would never offend again.
As counsel said, the judge was correct too, to regard Thai’s moral culpability as substantially mitigated by the circumstances of her adverse background and the extent to which she had been vulnerable and prone to compliance with Vo’s requirements. All such things considered, counsel submitted, the sentence at which his Honour arrived was not unduly lenient.
Analysis
As is often remarked, the question whether a sentence is manifestly inadequate does not permit of much discussion. Presumably, that reflects the notion that a sentence ought not be regarded as manifestly inadequate unless it is so far under the appropriate sentencing range as to shock the public conscience. In cases of this kind, however, the idea of shocking the public conscience is of limited utility. Understandably, few members of the public have much idea of the sentence properly to be imposed for the unlawful importation of prescribed drugs, and those who do tend not to be shocked by occasional sentencing error. Consequently, it is generally more fruitful to conceive of an appeal of this kind as simply an exercise in consistency. It requires an assessment of whether the circumstances of the case are sufficiently akin to those in others in which greater sentences have been imposed to demand an increase in sentence in the interests of conformity; and, since we are concerned with Commonwealth offences, the comparison must be with comparable cases throughout the country.
Putting aside the requirements of parity,[10] we would accept that the sentence imposed in this case was inadequate. Despite the substantial mitigatory considerations which operated in favour of Thai, the nature and gravity of her offending, the high level of her moral culpability and the undoubted need for general deterrence of this kind of criminality would ordinarily demand a significantly more punitive penalty. Judged as best we can by comparison to otherwise comparable cases, a sentence of nine years’ imprisonment with a non-parole period of five years for the nature and gravity of offending here involved presents as prima facie too merciful.[11]
[10]Lowe v The Queen (1984) 154 CLR 606, 609; Green v The Queen (2011) 244 CLR 462, [29].
[11]See and compare De La Rosa v R (2010) 79 NSWLR 1, 64-6 [267]; Nguyen & Pham v R (2010) 205 A Crim R 106, 133 [109]; Nguyen v R (2011) 31 VR 678, 683 [36]; OPQ v R (2012) 221 A Crim R 424, 431.
In particular, the sentence of seven years’ imprisonment imposed on charge 1 does not sit at all well with sentences for like offending imposed in the bulk of comparable cases and, as counsel for the Crown pointed out in the course of oral argument, it is remarkable, too, in that it is not a great deal more than the individual sentences imposed on some of the couriers who worked under Thai at a lower level in the hierarchy.
On the other hand, as counsel for the Crown very properly acknowledged, there are cases in which comparable sentences have been imposed for similar offending;[12] and, as counsel for Thai submitted, it is also open to conclude that the judge may have moderated the sentence imposed on charge 1 in accordance with the requirements of totality.[13] Perhaps most importantly, however, as counsel for the Crown ultimately conceded, the fact is that the judge was bound to take the requirements of parity into account. As his Honour observed in his sentencing remarks:
Mr Vo, although he was the principal offender, although he caused your involvement in these matters and that you acted as his assistant, received a sentence which was dramatically less than the sentence you will receive, by reason of a combination of circumstances that apply to his case, including his terminal illness, his past assistance to authorities and his promise of future assistance. Nevertheless, I accept that it will be a bitter pill indeed for you to swallow that Mr Vo’s sentence was so low compared to yours when, without you having met him, you would never have been involved in this offending at all and given the differences in your respective roles. I am not entitled to give that significant weight — that is that potential sense of grievance and injustice on your part — but I do give it some weight. It seems to me to be appropriate. [14]
[12]See, for example, R v Nikolovska [2010] NSWCCA 169 and other cases listed in the Schedule appended to OPQ v R (2012) 221 A Crim R 434, 434; and, most recently in this court, Alavy v R [2014] VSCA 25.
[13]Mill v The Queen (1988) 166 CLR 59, 67; Johnson v The Queen (2004) 205 ALR 346, 356 [26].
[14]Sentencing Remarks, [46].
Therein, it seems to us, lies the essence of the matter. Vo’s level of criminality was greater than Thai’s and yet Vo received a sentence of only two years and 10 months’ imprisonment with a minimum term of only one year. Certainly, the reasons for that included Vo’s parlous state of health and the extent of his cooperation with the authorities. But, as the judge said, the fact that Vo received a much lesser sentence than Thai is in one sense hardly fair; especially given that it was Vo who pushed and pulled Thai into the ways of offending. More precisely, even though Vo’s particular circumstances demanded that he receive a lesser
sentence than Thai,[15] the parity principle still required that, up to a point,[16] due proportion be maintained between Vo and Thai in light of their personal circumstances and the respective degrees of their individual criminality. The sentence which the judge imposed was calculated to achieve that balance.
[15]Postiglione v The Queen (1997) 189 CLR 295, 301-2 (Dawson and Gaudron JJ); Wong v The Queen (2001) 207 CLR 584, 608 (Gaudron, Gummow and Hayne JJ).
[16]Wilson v The Queen (2000) 116 A Crim R 90, 98, [23]; Taleb v The Queen [2014] VSCA 96 [48] and 52].
Sentence and non-parole period not inadequate
Counsel for Thai submitted that, all things considered, any greater degree of disparity would have been too much. In our view there is force in that submission. In the end, this case may be finely balanced but, giving due weight to the requirements of parity, we are not persuaded that a sentence of nine years’ imprisonment with a non-parole period of five years is so inadequate as to be ‘an affront to the administration of justice which risks undermining public confidence in the criminal justice system’.[17]
[17]Green v The Queen (2011) 244 CLR 462, 479 [42] (French CJ, Crennan and Kiefel JJ).
We are also unconvinced by the Crown’s submission as to the inadequacy of the non-parole period. Admittedly, a non-parole period of five years represents a lesser proportion of the head sentence than in the past was sometimes conceived of as the usual range of between 66 per cent and 75 per cent of head sentence.[18] But as this court has since stressed repeatedly, there is no usual non-parole period. The question is whether in all of the circumstances of the case and of the offender, it was reasonably open to the judge to fix the non-parole period which his Honour did. Given Thai’s age and antecedents, the judge’s finding that Thai was most unlikely ever to offend again and, therefore, the very limited need for community protection which applied in this case, we consider that it was open to his Honour to take the view he did.
[18]R v Bolton & Barker (1998) 1 VR 692, 699; R v Tran and Tran [2006] VSCA 222, [27]-[28] (footnotes omitted); R v Detanamo [2007] VSCA 160 [24]-[26] (Redlich JA); cf Wallace v R (2012) 35 VR 520, 521 [2] (Maxwell ACJ and Buchanan JA).
Conclusion
For those reasons, the appeal is dismissed.
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