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Kev v The Queen

Kev v The Queen

Case [2015] VSCA 232 1 September 2015

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0114

CHHODAPHEA KEV	Applicant
v
THE QUEEN	Respondent

S APCR 2015 0029

SAMBATH SOK	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BEACH JA and ROBSON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 September 2015
DATE OF JUDGMENT:	1 September 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 232
JUDGMENT APPEALED FROM:	DPP v Kev (Unreported, County Court of Victoria, Judge Dean, 19 May 2014)

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CRIMINAL LAW – Sentence – Applications for leave to appeal – Importing commercial quantity of border controlled drug (12.36 kg of heroin) – Possessing a commercial quantity of a border controlled drug (12.36 kg of heroin) – Eight times the prescribed commercial quantity – Both applicants sentenced to a total effective sentence of 14 years and 9 months, with a non-parole period of 11 years – Parity – Parity principles not infringed – Errors contended for not reasonably arguable – Sentence not manifestly excessive – No reasonable prospect that sentence would be reduced – Applications for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant, Kev	Mr M A Thomas	Grigor Lawyers
For the Applicant, Sok	Mr B Walmsley QC	Condello Lawyers
For the Crown	Mr D D Gurvich	Commonwealth Director of Public Prosecutions

BEACH JA
ROBSON AJA:

Introduction

On 15 April 2014, following a 16 day trial in the County Court, the applicants, Chhodaphea Kev and Sambath Sok were each found guilty of one charge of importing a commercial quantity of a border controlled drug (heroin) contrary to s 307.1(1) of the Criminal Code 1995 (Cth) and one charge of possessing a commercial quantity of an unlawfully imported border controlled drug (heroin) contrary to s 307.5(1) of the Criminal Code 1995 (Cth). Following plea hearings on 16 April and 5 May 2014, the applicants were sentenced on 19 May 2014 as follows:

Applicant Kev

Charge on Indictment Offence Maximum Sentence Cumulation

1 Importing a commercial quantity of a border controlled drug
[Criminal Code 1995 (Cth) s 307.1 (1)] Life imprisonment [Criminal Code 1995 (Cth) s 307.1(1)] 14 years
9 months Concurrent

2 Possessing a commercial quantity of an unlawfully imported border controlled drug [Criminal Code 1995 (Cth) s 307.5 (1)] Life Imprisonment [Criminal Code 1995 (Cth)
s 307.5 (1)] 6 years Concurrent

Total Effective Sentence: 14 years 9 months

Non-Parole Period: 11 years

Pre-sentence Detention Declared: 130 days

Applicant Sok

Charge on Indictment Offence Maximum Sentence Cumulation

1 Importing a commercial quantity of a border controlled drug
[Criminal Code 1995 (Cth) s 307.1 (1)]
Life imprisonment

[Criminal Code 1995 (Cth) s 307.1(1)]
14 years
9 months Concurrent

3 Possessing a commercial quantity of an unlawfully imported border controlled drug
[Criminal Code 1995 (Cth) s 307.5 (1)]
Life Imprisonment

[Criminal Code 1995 (Cth) s 307.5(1)]
6 years Concurrent

Total Effective Sentence: 14 years 9 months

Non-Parole Period: 11 years

Pre-sentence Detention Declared: 164 days

On 10 November 2014, Priest JA refused Kev’s application for leave 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 Kev v The Queen

Details

AGLC: Chhodaphea Kev v The Queen [2015] VSCA 232
Case: [2015] VSCA 232
Decision Date: 1 September 2015

CaseChat Overview and Summary

Kev and another individual appealed against their sentences, imposed after being convicted of importing and possessing a commercial quantity of heroin, equivalent to eight times the prescribed commercial quantity. The High Court of Australia was tasked with determining whether the applicants' applications for leave to appeal against their sentences should be granted. The primary legal issues revolved around the applicants' arguments that the sentences imposed were manifestly excessive and not in parity with other cases. They contended that there were errors in the trial judge's assessment of the seriousness of the offending and the application of the principle of parity.

The Court examined the nature and extent of the offending, the principles of sentencing, and the precedents set by similar cases. It found that the trial judge had thoroughly considered the relevant factors and that the sentences imposed were not manifestly excessive. The Court held that the applicants' arguments did not present a reasonably arguable case that the sentences were excessive or that there had been a breach of the principle of parity. Consequently, the Court concluded that there was no reasonable prospect that the applicants' sentences would be reduced on appeal. As a result, the applications for leave to appeal were refused.

The Court's decision underscored the importance of thorough consideration of sentencing principles and the need for a high threshold to be met for leave to appeal to be granted in cases involving substantial quantities of border-controlled drugs. The Court's reasoning highlighted the careful balance between deterrence and proportionality in sentencing. The outcome of this case serves as a reminder of the stringent criteria that must be satisfied for an appeal against sentence to proceed, particularly in cases involving significant drug offences.

Orders