DPP v Fatho

Case [2019] VSCA 311


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0150

DIRECTOR OF PUBLIC PROSECUTIONS Appellant
v
AYSAR FATHO Respondent

S APCR 2019 0149

DIRECTOR OF PUBLIC PROSECUTIONS Appellant
v
JAMES VAN Respondent

S APCR 2019 0151

DIRECTOR OF PUBLIC PROSECUTIONS Appellant
v
NGOC HUYNH Respondent

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JUDGES: MAXWELL P, PRIEST and BEACH JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 25 October 2019
DATE OF JUDGMENT: 19 December 2019
MEDIUM NEUTRAL CITATION: [2019] VSCA 311
JUDGMENT APPEALED FROM: [2019] VCC 1062 (Judge Cohen)

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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Trafficking commercial quantity of drug (1,4 Butanediol) – Burglary – First respondent was principal of syndicate – Quantity trafficked was 700 times commercial quantity – Burglary committed to obtain supply of drug – Trafficking sentence 4 years and 6 months’ imprisonment – Burglary sentence 12 months – Whether manifestly inadequate – Scale and persistence of trafficking activity – Lower reward compared to other drugs – Offending while on bail – Specific deterrence – Changed sentencing practice for trafficking commercial quantity – Parity with co-offenders – No basis for exercise of residual discretion – Appeal allowed – Respondent resentenced to 8 years for trafficking, 3 years for burglary – Gregory v The Queen [2017] VSCA 151 applied, DPP (Cth) v Maxwell [2013] VSCA 50 considered.

CRIMINAL LAW – Appeal – Sentence – Crown appeal – Conspiracy to traffick commercial quantity of drug (1,4 Butanediol) – Second respondent was active member of acquiring syndicate – Quantity to be acquired was 250 times commercial quantity – Sentence 2 years and 6 months’ imprisonment – Lower reward compared to other drugs – Whether manifestly inadequate – Scale of proposed trafficking – Serious prior convictions – Offending while on bail – Specific deterrence – Changed sentencing practice for trafficking commercial quantity – Parity with co-offenders – No basis for exercise of residual discretion – Appeal allowed – Respondent sentenced to 5 years’ imprisonment – Gregory v The Queen [2017] VSCA 151 applied.

CRIMINAL LAW – Appeal – Sentence – Crown appeal – Conspiracy to traffick commercial quantity of drug (1,4 Butanediol) – Third respondent was active member of acquiring syndicate – Quantity to be acquired was 250 times commercial quantity – Sentence 139 days’ imprisonment with 3 year community correction order subject to treatment conditions – Whether manifestly inadequate – Position of third respondent materially different from second respondent – No prior convictions, no offending on bail – Exceptional progress in rehabilitation – Open to judge to impose non-custodial order – Punitive and rehabilitative purposes served simultaneously – Treatment conditions address causes of offending – Public interest in rehabilitation – Sentence not manifestly inadequate – Appeal dismissed – Boulton v The Queen (2014) 46 VR 308 followed.

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APPEARANCES: Counsel Solicitors
For the Appellant Mr B F Kissane QC
with Ms E Ruddle
Mr J Cain, Solicitor for Public Prosecutions
For the Respondent (Fatho) Mr D A Dann QC
with Mr M P McGrath
Giorgianni & Liang Lawyers
For the Respondent…

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Details
AGLC
Director of Public Prosecutions v Aysar Fatho [2019] VSCA 311
Case
[2019] VSCA 311
Decision Date

CaseChat Overview and Summary

The case of DPP v Fatho involved the Crown appealing the sentences of three respondents convicted of various drug-related offences, including trafficking and conspiracy to traffic commercial quantities of 1,4 Butanediol. The respondents were part of a syndicate that had engaged in large-scale drug trafficking activities. The primary legal issue for the court was whether the sentences imposed on the respondents were manifestly inadequate given the scale and nature of their criminal activities. The court had to consider factors such as the respondents' roles within the syndicate, the commercial quantities of drugs involved, their offending history, and the sentencing practices established in prior cases.

The court examined the sentences under the lens of the sentencing principles set out in Gregory v The Queen, as well as other relevant authorities. The court found that the sentences for the first and second respondents were indeed manifestly inadequate. The sentences did not reflect the seriousness of their criminal conduct, particularly considering the large scale of the drug trafficking and the respondents' roles within the syndicate. The court noted that the respondents had engaged in persistent criminal activity, with the first respondent being the principal of the syndicate and the second respondent being an active member. The sentences also failed to appropriately address the need for specific deterrence and to align with the changed sentencing practices for trafficking commercial quantities of drugs.

In light of these findings, the court allowed the appeal and resentenced the first respondent to 8 years for trafficking and 3 years for burglary, to be served concurrently. The second respondent was resentenced to 5 years for conspiracy to traffick. The court dismissed the appeal in relation to the third respondent, finding that the original sentence of 139 days’ imprisonment with a 3-year community correction order was appropriate given the respondent's exceptional progress in rehabilitation and lack of prior convictions. The treatment conditions of the community correction order were deemed to serve both punitive and rehabilitative purposes effectively.

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Background

Background to the litigation

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Evidence Before The Court

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