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DPP (Cth) v Thai

DPP (Cth) v Thai

Case [2014] VSCA 122 16 June 2014

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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 [1^st 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…

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 DPP (Cth) v Thai

Details

AGLC: DPP (Cth) v Thai [2014] VSCA 122
Case: [2014] VSCA 122
Decision Date: 16 June 2014

CaseChat Overview and Summary

The case of the Director of Public Prosecutions (Commonwealth) versus Thai was heard in a court of appeal in Australia. The respondent, Thai, was convicted and sentenced for conspiring to import a marketable quantity of heroin and trafficking the same quantity of the drug. The Director of Public Prosecutions appealed the sentence imposed on the respondent, arguing it was manifestly inadequate. The appeal hinged on whether the total effective sentence of nine years, with a non-parole period of five years, was too lenient considering the gravity of the crimes committed.

The court had to determine whether the sentence was manifestly inadequate, whether the sentence relative to that imposed on a co-offender offended the principle of parity, and whether mitigating factors such as the respondent's age, previous good character, and rehabilitation efforts warranted a reduction in sentence. The appeal also questioned whether the respondent had control over the delay between arrest and sentencing. These issues were evaluated in light of relevant legal precedents and statutory provisions, particularly sections 11.5(1), 302.3(1), and 307.2(1) of the Criminal Code.

The court found that the sentence imposed was not manifestly inadequate, noting the significant delay in the proceedings and the respondent's efforts towards rehabilitation. The court rejected the appeal, affirming the original sentence. The court emphasised that the mitigating factors, including the respondent's age, good character, and delay in proceedings, were adequately considered by the sentencing judge. The principle of parity was also taken into account, ensuring the sentence was proportionate to that of the co-offender. The appeal was dismissed, and the original sentence was upheld.

Orders