Ip v The Queen - [2020] VSCA 211

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2020 0003

TSUN SHING IP	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	24 August 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 211
JUDGMENT APPEALED FROM:	[2017] VCC 1169 (Judge Tinney)

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CRIMINAL LAW – Appeal – Sentence – Parity – Disparity resulting from co-offender’s successful sentence appeal – Attempting to possess commercial quantity of border controlled drug – Dealing with money reasonably suspected of being proceeds of crime –Co-offender sentenced on equivalent charges – Co-offender’s sentence reduced on appeal – Whether original sentencing differential should be restored – Crown concession – Appeal allowed – Applicant resentenced – Total effective sentence of 8 years and 5 months’ imprisonment – Non-parole period of 5 years – Tregenza v The Queen [2015] VSCA 163 applied.

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REPRESENTATION:	Counsel	Solicitors
For the Applicant	Mr C Carr	Lethbridges
For the Respondent	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

MAXWELL P
WEINBERG JA:

Summary

The applicant, Tsun Shing Ip, and a co-offender, Kai Yang Kao (‘Kao’), each pleaded guilty to one charge of attempting to possess a commercial quantity of a border controlled drug and two charges of dealing with money reasonably suspected of being proceeds of crime. The applicant and Kao were engaged in joint offending but each was sentenced for his own dealings, rather than being charged as a co-offender in the dealings of the other.

The applicant was sentenced to a total effective sentence of nine years’ imprisonment, and a non-parole period of 5 years and 4 months was fixed. Kao was sentenced to a total effective sentence of 11 years’ imprisonment, with a non-parole period of 6 years and 10 months. The sentencing relativities between the two offenders were arrived at by the judge after careful consideration of their respective roles, the seriousness of their respective offences and the mitigating factors on which each offender could rely.

In April 2019, Kao appealed his sentence to this Court. The sentences on the proceeds of crime charges were held to be manifestly excessive and were reduced, resulting in a lower total effective sentence. The non-parole period was reduced to 6 years and 6 months.

The applicant now seeks leave to appeal against his sentence on two grounds: first, that his sentence is manifestly excessive for essentially the same reasons that Kao’s sentence was found to be manifestly excessive; and second, on the basis of parity, that the resentencing of Kao resulted in insufficient differentiation between their sentences.

The respondent concedes that the applicant should be granted leave to appeal, and that the appeal should be allowed, on ground 2. She further concedes that the applicant should be resentenced so as to restore the original sentencing relativities between himself and Kao.

That was, in our view, a proper concession to make in the circumstances. We will make orders accordingly. The applicant will be resentenced 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 Ip v The Queen

Details

AGLC: Tsun Shing Ip v The Queen [2020] VSCA 211
Case: [2020] VSCA 211
Decision Date: 24 August 2020

CaseChat Overview and Summary

Ip was convicted and sentenced to imprisonment for attempting to possess a commercial quantity of a border controlled drug and dealing with money reasonably suspected of being proceeds of crime. The applicant appealed the sentence on the basis that the sentence imposed was disproportionate when compared to the sentence of a co-offender who was sentenced on equivalent charges but had his sentence reduced on appeal. Ip submitted that the original sentencing differential should be restored. The Crown conceded that the applicant’s sentence was excessive and that the appeal should be allowed. The court held that the appropriate course was to allow the appeal and to resentence the applicant. The total effective sentence of imprisonment imposed was 8 years and 5 months, with a non-parole period of 5 years. The court applied the decision in Tregenza v The Queen.

The issue before the court was whether the original sentencing differential should be restored given the co-offender’s successful appeal against sentence. The court considered the principles of parity and proportionality in sentencing. It was noted that where a co-offender has had their sentence reduced on appeal, the original sentencing differential may need to be restored to ensure parity. The court also considered the need to maintain public confidence in the criminal justice system and to ensure that sentences reflect the seriousness of the offending. The court held that the appropriate course was to allow the appeal and to resentence the applicant to ensure parity with the co-offender’s reduced sentence.

Orders