Ho v The Queen - [2012] VSCA 26

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0522

BILL HO	Appellant
v
THE QUEEN	Respondent

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ELECTION TO HAVE AN APLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION AND SENTENCE DETERMINED BY THE COURT OF APPEAL
PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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JUDGES:	BUCHANAN and HANSEN JJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	24 February 2012
DATE OF JUDGMENT/ORDER:	24 February 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 26
JUDGMENTS APPEALED FROM:	Section 315 Application for Leave to Appeal, Court of Appeal, 14 October 2011, Weinberg JA R v Nguyen, Ho and Nguyen [2007] VSC 540 (Williams J)

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CRIMINAL LAW – Murder and attempted murder – Verdicts of guilty not unsafe or unsatisfactory – No point of principle.

CRIMINAL LAW – Sentence – Total effective sentence of 22 years and 4 months’ imprisonment with a minimum term of 19 years’ imprisonment not manifestly excessive – No point of principle.

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DETERMINED ON THE PAPERS

APPEARANCES:	Counsel	Solicitors
For the Appellant	No appearances
For the Respondent	No appearances

BUCHANAN JA:

After a trial in the Supreme Court the applicant was found guilty on one count of murder and one count of attempted murder. A plea was conducted and the applicant was sentenced to be imprisoned for a term of 20 years on the count of murder and for a term of 10 years on the count of attempted murder. Two years and four months of the sentence on the count of attempted murder were cumulated on the sentence on the count of murder, creating a total effective sentence of 22 years and 4 months’ imprisonment. A non-parole period of 19 years’ imprisonment was fixed pursuant to s 14(1) of the Sentencing Act 1991.

The applicant sought leave to appeal against his conviction and sentence. The applications were dismissed by a single judge of this Court. The applicant has elected to have the applications heard by this Court.

The applicant and a man called Khoa were engaged in trafficking heroin to one Mau. On 8 November 2004 Mau owed the applicant and Khoa $5,000 for a quantity of heroin that had been supplied to him.

The applicant and Khoa went to a flat in Carlton in order to find Mau. They were accompanied by another man, Quang. The three men entered the flat. The applicant was armed with a revolver while Quang had a samurai sword. A number of persons were present in the flat.

The applicant believed that those in the flat were hiding Mau. One of the persons in the flat attempted to telephone Mau, but could not contact him. The applicant was upset. He played with the magazine of his revolver. Quang cut the neck of one of those present with his sword and slashed another on the knee and shin.

The applicant shot one Chau Minh Nguyen in the head. Chau Minh said in his evidence that he woke from sleep to…

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 Ho v The Queen

Details

AGLC: Ho v The Queen [2012] VSCA 26
Case: [2012] VSCA 26
Decision Date: 24 February 2012

CaseChat Overview and Summary

The appeal was brought by the defendant against his conviction for murder and attempted murder. The respondent was the Crown. The matter was heard in the High Court of Australia. The defendant was convicted of murdering one person and attempting to murder another. He appealed against his conviction and sentence, arguing that the verdicts were not safe and satisfactory, and that the sentence was manifestly excessive.

The legal issues the court had to decide were whether the verdicts of guilty for murder and attempted murder were unsafe and unsatisfactory, and whether the sentence of 22 years and 4 months’ imprisonment with a minimum term of 19 years was manifestly excessive. The court found that there was no error in the trial judge’s direction to the jury regarding the onus of proof and the standard of proof. The evidence was sufficient to support the verdicts, and the trial judge’s summing up did not result in a miscarriage of justice. The sentence was not manifestly excessive, as it was within the range of sentences that could be imposed for such crimes.

The High Court dismissed the appeal. The verdicts of guilty were not unsafe or unsatisfactory, and the sentence was not manifestly excessive. The court found that there was no point of principle of general importance that required the court to allow the appeal. The appeal was dismissed, and the convictions and sentences were upheld.

Orders