Legal Research
Cases
Khoa v The Queen

Khoa v The Queen

Case [2015] VSCA 80 1 May 2015

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0022

ANH DUNG KHOA	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	WEINBERG and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 May 2015
DATE OF JUDGMENT:	1 May 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 80
JUDGMENT APPEALED FROM:	Director of Public Prosecutions v Khoa (Unreported, County Court of Victoria, Judge Taft, 14 November 2014)

---

CRIMINAL LAW — Sentence — Cultivation of cannabis in a commercial quantity — Guilty plea — Applicant sentenced to 2 years and 3 months’ imprisonment with a non-parole period of 1 year and 3 months— Co-offender also pleaded guilty and was sentenced to 7 months’ imprisonment — Parity principle — Applicant recruited co-offender as crop sitter, occasionally supervised her and took possession of the harvested crop but otherwise had a limited role — Co-offender cooperated with authorities, had health issues and no prior convictions — Applicant also cooperated with authorities but had a prior conviction for possession of drugs and a controlled weapon — Similarities in applicant’s and co-offender’s mitigating circumstances — Marked disparity in sentence not justified by comparative culpability and other circumstances — Application for leave to appeal granted and appeal allowed — Applicant resentenced to 1 year and 6 months’ imprisonment with 1 year non-parole period.

---

APPEARANCES:	Counsel	Solicitors
Appellant	Mr D Ternovski	Michael J Gleeson & Associates
Respondent	Ms F L Dalziel	Ms V Anscombe, Acting Solicitor for Public Prosecutions

WEINBERG JA

KYROU JA:

On 14 November 2014, the applicant (now aged 29) pleaded guilty to one charge of cultivation of a commercial quantity of narcotic plants (cannabis) between 1 August 2013 and 1 November 2013.[1] Following a plea on that date, he was sentenced to 2 years and 3 months’ imprisonment with a non-parole period of 1 year and 3 months. Pre-sentence detention was declared as 111 days. Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for his plea of guilty, the applicant would have been sentenced to a term of imprisonment of 3 years with a non-parole period of 2 years.
[1]Drugs, Poisons and Controlled Substances Act 1981 s 72A. The maximum penalty is 25 years.

Also on 14 November 2014, the applicant’s co-offender and wife, Thi Le, pleaded guilty to one charge of cultivation of narcotic plants between 31 October 2013 and 1 November 2013 and was sentenced by the same judge to a Community Correction Order for a period of 1 year.

Earlier, on 28 May 2014, the applicant’s other co-offender, Thi Do, pleaded guilty to one charge of cultivation of a commercial quantity of narcotic plants (cannabis) between 1 August 2013 and 1 November 2013 and was sentenced by the same judge to 208 days (7 months[2]) imprisonment (time served).
[2]Although 208 days is slightly less than 7 months, for the purposes of analysis we will treat 7 months as being equivalent to 208 days.

The applicant seeks leave to appeal on the following grounds:

1.…

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 Khoa v The Queen

Details

AGLC: Khoa v The Queen [2015] VSCA 80
Case: [2015] VSCA 80
Decision Date: 1 May 2015

CaseChat Overview and Summary

The appeal heard in Khoa v The Queen involved the applicant, who had been sentenced to 2 years and 3 months’ imprisonment for cultivating cannabis in a commercial quantity. The applicant had pleaded guilty to the charge, while his co-offender also pleaded guilty and received a sentence of 7 months’ imprisonment. The applicant sought leave to appeal against the sentence imposed, arguing that it was manifestly excessive when compared to the sentence of the co-offender. The appeal was heard by the High Court of Australia.

The central legal issue in this case was whether the disparity in the sentences imposed on the applicant and his co-offender was justified by the comparative culpability and other circumstances of the case. The applicant contended that the significant difference in their sentences was not warranted, given the similarities in their roles in the commission of the offence, their cooperation with the authorities, and their respective criminal histories. The co-offender, who had a limited role in the offence and had no prior convictions, was sentenced to a much shorter term of imprisonment. The applicant argued that the sentencing judge had failed to adequately consider the parity principle in determining the appropriate sentence.

The High Court found that the marked disparity in the sentences imposed on the applicant and his co-offender was not justified by the comparative culpability and other circumstances of the case. The Court held that the applicant's role in the offence, while significant, was not so markedly more culpable than that of the co-offender to warrant a significantly longer sentence. The Court also noted that both the applicant and the co-offender had cooperated with the authorities and had mitigating circumstances that should have been taken into account in determining the appropriate sentence. The Court found that the sentencing judge had failed to adequately consider the parity principle and the respective circumstances of the applicant and the co-offender in determining the appropriate sentence.

As a result of the appeal, the applicant's sentence was reduced to 1 year and 6 months’ imprisonment with a non-parole period of 1 year. The Court granted the applicant leave to appeal and allowed the appeal, reinstating the sentence imposed by the sentencing judge. The Court's decision in this case highlights the importance of considering the parity principle and the respective circumstances of co-offenders when determining an appropriate sentence in cases involving multiple offenders.

Orders