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Kim v The Queen

Kim v The Queen

Case [2019] VSCA 149 26 June 2019

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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.

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 Kim v The Queen

Details

AGLC: Ben Kim v The Queen [2019] VSCA 149
Case: [2019] VSCA 149
Decision Date: 26 June 2019

CaseChat Overview and Summary

The applicant, Kim, appealed against his sentence imposed by the County Court of Victoria, contending that the principle of parity was infringed. Kim was found guilty of various drug and firearm offences, and sentenced to nine years and nine months’ imprisonment, with a non-parole period of seven years. Kim argued that the principle of parity was violated because his co-offenders received lesser sentences, despite similar roles in the offending. He also argued that his sentence and non-parole period were manifestly excessive.

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