SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0151
| BEN KIM | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KAYE and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 20 June 2019 |
| DATE OF JUDGMENT: | 26 June 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 149 |
| JUDGMENT APPEALED FROM: | [2018] VCC 323 (Judge Campton) |
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CRIMINAL LAW – Appeal – Sentence – Trafficking in a large commercial quantity of a drug of dependence – Trafficking in a drug of dependence – Possessing material for trafficking in a drug of dependence – Possessing tablet press – Handling stolen goods – Possessing a traffickable quantity of unregistered firearms – Related summary offences –Applicant sentenced to nine years and nine months’ imprisonment – Whether principle of parity infringed – Co-offenders differentiated – Principle of parity does not apply – Whether sentence and non-parole period manifestly excessive – Early guilty plea – Personality disorder – Serious offending – Leave to appeal refused – Gregory (a pseudonym) v The Queen [2017] VSCA 151 considered.
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| APPEARANCES: | Counsel | Solicitors |
For the Applicant | Ms S Flynn QC | Ms C Flocke, Giorgianni & Liang Lawyers |
| For the Respondent | Mr P Bourke | Mr J Cain, Solicitor for Public Prosecutions |
KAYE JA
T FORREST JA:
Background
The applicant was a member of a group who trafficked and manufactured drugs in suburban Melbourne. Other members of this group included Thuy Nguyen (‘Thuy’) and her son, Du Thanh Tran (‘Tran’). Each operated a drug trafficking business with some cross-over and assistance being provided by the applicant and Thuy to each other. The applicant and Thuy appeared to be in a relationship and divided their time between their addresses. At material times, the applicant was unemployed and lived in a rental house in Mulga Street, Thomastown.
As a result of intercepted telephone conversations and SMS messages, it was established that between 14 August 2015 and 25 November 2015, the applicant was a participant in approximately 300 intercepted calls between either Thuy or Tran (whose phones were intercepted). From 26 November 2015, the applicant’s phone was also intercepted. Over the next 62 days, 450 calls were intercepted.
The prosecution summary on the plea sets out the substance of some of these calls:
The intercepted calls evidence:
(1) Kim —
(a) sourced parts for the tablet press at his residence (e.g. dies).
(b) told Thuy that now he has the machine (tablet press) he can cut and produce.
(2)Kalaitzoglou and Rubinic provided assistance to Kim in drug manufacturing at his residence ...
(3) Customers and potential customers making inquiries about the availability of drugs and prices.
(4) Kim making of arrangements with customers to supply drugs Usually the arrangement was that the customer attended at Kim’s residence. Kim might also attend at the customer’s residence …
(5) Kim arranging to meet to supply drugs to customer —
(a) [MC] on 6 occasions between 5/11/15 – 10/12/16
(b) [AW] and [LP] on 7 occasions between 26/11/15 – 31/12/15.
(c) [YH] on 5 occasions between 28/11/15 -1/1/16.
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- AGLC
- Ben Kim v The Queen [2019] VSCA 149
- Case
- [2019] VSCA 149
- Decision Date
CaseChat Overview and Summary
The Court examined whether the principle of parity was infringed and noted that co-offenders can receive different sentences if there are legitimate reasons to differentiate between them. In this case, the sentencing judge had considered the differing roles and levels of culpability of the co-offenders and had provided reasons for the disparity in sentences. The Court concluded that the principle of parity did not apply. The Court also assessed whether the sentence and non-parole period were manifestly excessive, taking into account factors such as the early guilty plea, Kim's personality disorder, and the seriousness of the offending. The Court held that the sentence and non-parole period were not manifestly excessive.
Ultimately, the Court found that the sentence and non-parole period were appropriate in the circumstances. The appeal was dismissed, and leave to appeal to the Court of Appeal was refused. The Court noted that the sentencing judge had considered all relevant factors and had exercised his discretion reasonably. The Court also noted that the principle of parity did not apply in this case because the co-offenders had different roles and levels of culpability.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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