Lang v The King

`SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0211

JIMMY KWONG YEW LANG	Applicant
v
THE KING	Respondent
S EAPCR 2024 0020

YONG SENG CHENG	Applicant
v
THE KING	Respondent
S EAPCR 2024 0023

JANET TRAN	Applicant
v
THE KING	Respondent
S EAPCR 2024 0032

KHAI MONG	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH and McLEISH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 March 2025
DATE OF JUDGMENT:	28 March 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 49

JUDGMENTS APPEALED FROM:

DPP v Lang [2023] VCC 2152 (Judge Carmody)
DPP v Cheng [2023] VCC 2151 (Judge Carmody)
DPP v Tran [2023] VCC 2155 (Judge Carmody)
DPP v Mong [2023] VCC 2153 (Judge Carmody)

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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence by one of five co-offenders – Trafficking in a drug of dependence in a large commercial quantity – TES 16 years 4 months with NPP 12 years – Co-offender given same TES and NPP – Manifest excess – Not reasonably arguable that sentence manifestly excessive – Parity – Not reasonably arguable that individual sentences, orders for cumulation or TES infringe parity principles – Differences between co-offenders as to prior criminal history and prospects of rehabilitation – Not open to judge to impose identical NPPs given differences between co-offenders’ circumstances – Leave to appeal granted – Appeal allowed – NPP set aside – Resentenced to NPP of 11 years – All other sentences and orders confirmed.

CRIMINAL LAW – Sentence – Applications for extensions of time within which to seek leave to appeal against sentence by three of five co-offenders – Trafficking in drugs of dependence in commercial quantities and large commercial quantities – Total effective sentences of 11 years 4 months, 7 years 7 months and 12 years 6 months – Manifest excess – Not reasonably arguable that any sentence manifestly excessive – Parity – Not reasonably arguable that any sentence infringes parity principles – Applications for leave to appeal and extensions of time refused.

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Counsel
Applicant in S EAPCR 2023 0211 (Lang):	Mr PJ Smallwood
Applicant in S EAPCR 2024 0020 (Cheng):	Ms E Clark
Applicant in S EAPCR 2024 0023 (Tran):	Mr J Connolly
Applicant in S EAPCR 2024 0032 (Mong):	Mr PJ Smallwood
Respondent in all proceedings:	Ms E Ramsay with Mr B Kerlin
Solicitors
Applicant in S EAPCR 2023 0211 (Lang):	Garde Wilson Lawyers
Applicant in S EAPCR 2024 0020 (Cheng):	Giorgianni & Laing
Applicant in S EAPCR 2024 0023 (Tran):	Theo Magazis & Associates
Applicant in S EAPCR 2024 0032 (Mong):	Valos Black & Associates
Respondent in all proceedings:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
MCLEISH JA:

On 16 October 2023, the applicants, Jimmy Kwong Yew Lang (‘Lang’), Yong Seng Cheng (‘Cheng’), Janet Tran (‘Tran’) and Khai Mong (‘Mong’) pleaded guilty before Judge Carmody in the County Court to trafficking in a drug of dependence (in the cases of Lang and Cheng, in a large commercial quantity; and in the cases of Tran and Mong, in a commercial quantity) and other related offences. At the same time, a co-offender, Wei Chuan Teoh (‘Teoh’) pleaded guilty to trafficking in a large commercial quantity of a drug of dependence and related offending.
On 24 October 2023, the judge sentenced Lang,[1] Cheng,[2] Mong[3] and Teoh;[4] and on 30 October 2023, his Honour sentenced Tran.[5]
[1]DPP v Lang [2023] VCC 2152 (‘Lang Reasons’).
[2]DPP v Cheng [2023] VCC 2151 (‘Cheng Reasons’).
[3]DPP v Mong [2023] VCC 2153 (‘Mong Reasons’).
[4]DPP v Teoh [2023] VCC 2154 (‘Teoh Reasons’).
[5]DPP v Tran [2023] VCC 2155 (‘Tran Reasons’).
Lang was sentenced by his Honour as follows:

Charge on Indictment C2215435	Offence	Max Penalty	Sentence	Cumulation
4	Trafficking in a drug of dependence – large commercial quantity (contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981)	Life	14 years 3 months	Base
8	Knowingly dealing with proceeds of crime (contrary to s 194(2) of the Crimes Act 1958)	15 years	4 years	1 year
9	Knowingly dealing with proceeds of crime (contrary to s 194(2) of the Crimes Act 1958)	15 years	4 years	1 year
10	Knowingly dealing with proceeds of crime (contrary to s 194(2) of the Crimes Act 1958)	15 years	6 months	1 month
Total Effective Sentence:		16 years 4 months
Non-Parole Period:		12 years
Pre-sentence Detention Declared:		508 days
Section 6AAA Statement:		TES 19 years 6 months, NPP 16 years

Cheng was sentenced as follows:

Charge on Indictment N11095497	Offence	Max Penalty	Sentence	Cumulation
1	Trafficking in a drug of dependence – large commercial quantity (contrary to s 71(1) of the Drugs, Poisons and Controlled Substances Act 1981)	Life	11 years, 3 months	Base
2	Possession of a drug of dependence (contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981)	1 year[6]	3 months	1 month
Total Effective Sentence:		11 years 4 months
Non-Parole Period:		8 years 3 months
Pre-sentence Detention Declared:		511 days
Section 6AAA Statement:		TES 16 years, NPP 13 years

[6]Drugs, Poisons and Controlled Substances Act 1981, s 73(1)(b). See also Cheng Reasons, [1].

Tran was sentenced as follows:

Charge on Indictment C2215435	Offence	Max Penalty	Sentence	Cumulation
3	Trafficking in a drug of dependence – commercial quantity (contrary to s 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981)	25 years	7 years, 6 months	Base
11	Knowingly deal with proceeds of crime (contrary to s 194(2) of the Crimes Act 1958)	15 years	4 month	1 month
Total Effective Sentence:		7 years, 7 months
Non-Parole Period:		4 years, 6 months
Pre-sentence Detention Declared:		36 days
Section 6AAA Statement:		TES 11 years 6 months, NPP 7 years 9 months

Mong was sentenced as follows:

Charge on Indictment C2215435	Offence	Max Penalty	Sentence	Cumulation
1	Trafficking in a drug of dependence – commercial quantity (contrary to s 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981)	25 years	12 years, 6 months	Base
12	Possession of a drug of dependence (contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981)	1 year[7]	1 month	Nil
13	Possession of a drug of dependence (contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981)	1 year[8]	7 days	Nil
14	Possession of a drug of dependence (contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981)	1 year[9]	7 days	Nil
Total Effective Sentence:		12 years 6 months
Non-Parole Period:		9 years
Pre-sentence Detention Declared:		454 days
Section 6AAA Statement:		TES 16 years, NPP 13 years

[7]Drugs, Poisons and Controlled Substances Act 1981, s 73(1)(b). See also Mong Reasons, [1].

[8]Ibid.

[9]Ibid.

Teoh was sentenced as follows:

Charge on Indictment C2215435	Offence	Max Penalty	Sentence	Cumulation
2	Trafficking in a drug of dependence – large commercial quantity (contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981)	Life	16 years, 3 months	Base
6	Possession of a drug of dependence (contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981)	1 year[10]	3 months	1 month
7	Possession of a drug of dependence (contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981)	5 penalty units[11]	Convicted and discharged	N/A
Total Effective Sentence:		16 years 4 months
Non-Parole Period:		12 years
Pre-sentence Detention Declared:		511 days
Section 6AAA Statement:		TES 19 years 9 months, NPP 16 years 6 months

[10]Drugs, Poisons and Controlled Substances Act 1981, s 73(1)(b). See also Teoh Reasons, [1].

[11]Drugs, Poisons and Controlled Substances Act 1981, s 73(1)(a). See also Teoh Reasons, [1].

Lang now seeks leave to appeal against his sentence on the following proposed grounds:
1.The orders for cumulation were each manifestly excessive and resulted in a total effective sentence that was manifestly excessive.
2.That the applicant was sentenced to the same total effective sentence and non-parole period as that imposed on Teoh (and not to a total effective sentence and non-parole period less than Teoh) reveals an error in the application of the parity principle.
On 9 February 2024, some 79 days after the time limited for Cheng to file an application for leave to appeal against sentence, Cheng filed an application for an extension of time within which to seek leave to appeal against his sentence. Cheng’s proposed grounds of appeal are as follows:
1.The individual sentence imposed on charge 1, total effective sentence and non-parole period do not comply with the principle of parity when considered against the sentences imposed on Teoh and Lang.
2.The individual sentences imposed on charges 1 and 2, order for cumulation, total effective sentence and non-parole period are each manifestly excessive.
Particulars
The judge erred in finding that the applicant’s prospects of rehabilitation were guarded as a result of the lengthy term of imprisonment he was to serve.
On 13 February 2024, some 77 days after the time limited for Tran to file an application for leave to appeal against sentence, Tran filed an application for an extension of time within which to seek leave to appeal against her sentence. Tran’s proposed ground of appeal is that the sentence imposed on charge 3 (trafficking in a drug of dependence in not less than a commercial quantity) was manifestly excessive.
On 26 February 2024, some 96 days after the time limited for Mong to file an application for leave to appeal against sentence, Mong filed an application for an extension of time within which to seek leave to appeal against his sentence. Mong’s proposed ground of appeal is that the sentence imposed on charge 1 (trafficking in a drug of dependence in not less than a commercial quantity) and the non-parole period were each manifestly excessive.
As has been said before, the question of whether a court should exercise its discretion to extend time must always be informed by what the interests of justice require in the particular circumstances of the case.[12] Factors relevant to the exercise of that discretion include the length of the delay, the reasons for the delay, and the prospects of success of the proposed appeal.[13] In the present case, and particularly having regard to the fact that Lang’s application for leave to appeal was filed within time, it is convenient to begin our analyses by considering the merits of each of the four matters before us.
[12]Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).
[13]Ibid.

Circumstances of the drug trafficking

The circumstances of the applicants’ offending were set out in an Amended Prosecution Opening for Plea Hearing (‘the prosecution opening’), which the judge attached to the reasons for sentence for each applicant.
In short compass, in 2021, the Victoria Police Major Drug Squad commenced Operation Kingfisher, which was an investigation into large scale drug trafficking in the western suburbs of Melbourne. The applicants’ offending was detected during the course of this investigation.
From 28 March 2022 to 31 May 2022 (when Teoh was arrested), interception of Teoh’s communications with his co-offenders, and others (together with related CCTV, surveillance and other evidence) revealed that Teoh and Lang conducted a substantial ongoing business of drug trafficking. Teoh’s primary focus was heroin, and he trafficked at least 14 kilograms of heroin in this period. He also trafficked 28 grams of methylamphetamine during the period.[14]
[14]Reference to a larger amount (800 grams) in the prosecution opening was abandoned by the prosecutor during the course of the plea hearing.
Lang was Teoh’s trusted associate and co-principal. In the period from 26 April to 31 May 2022, Lang trafficked at least 14 kilograms of heroin. This included 4.1 kilograms of heroin, seized by police from a safe house operated by Lang, which Lang possessed for the purpose of sale.
In essence, Teoh and Lang headed a syndicate of predominantly Malaysian nationals, who were selling heroin in ‘block’ form. The product was generally sold in 700 gram lots. There was a superior grade product, with minimal impurities, and an inferior grade product. 700 grams of the superior grade product generally sold for between $128,000 and $140,000. The same quantity of the inferior grade product generally sold for between $115,000 and $130,000.
Teoh acted in the capacity of a sales manager, actively seeking out customers, dealing with complaints and promoting the product. Lang was effectively the production and warehouse manager, with the responsibility of managing safe houses where product was received, refined, tested, pressed, repackaged and stored.
In his sales role, Teoh would utilise ‘brokers’, who would identify potential customers and facilitate the sale of large quantities of heroin. Tran was one such ‘broker’, who used her contacts within the Vietnamese community to arrange for other drug syndicates/traffickers within Victoria and interstate to be supplied with large quantities of heroin by Teoh and Lang.
Teoh also maintained relationships with several commercial level drug traffickers who would obtain large quantities of heroin from Teoh and/or Lang in order to supply their own customers. Mong was one such trafficker. Mong also acted as a mentor and advisor to Teoh regarding the managing of the drug distribution side of the business and the sourcing of drugs.
Cheng worked under Teoh’s direct control. He acted as a dedicated driver/courier for Teoh and Lang. Cheng was regularly tasked by Teoh with delivering drugs, collecting money from customers, collecting drugs from the safe houses, and assisting Lang with the preparation of drugs for sale.
As we have already observed, Lang, Cheng and Teoh pleaded guilty to trafficking quantities of heroin that exceeded the large commercial quantity threshold. While Mong and Tran were each involved in trafficking quantities of heroin that exceeded the large commercial quantity threshold, the prosecution accepted pleas by each of them to between dates trafficking of a commercial quantity of heroin, in circumstances where the prosecution did not allege knowledge of (and hence intention to traffick in) the specific weight of the product sold in all of the 45 transactions identified and set out in Schedule A of the prosecution opening.

Lang Reasons

At the start of the Lang Reasons, the judge identified the four charges to which Lang pleaded guilty, noting:
(a)charge 4 (trafficking in a large commercial quantity of a drug of dependence) carried a maximum penalty of life imprisonment, and was also a standard sentencing offence with a standard sentence of 16 years;
(b)charge 8 (knowingly dealing with the proceeds of crime) related to cash in the sum of $398,246.30, and carried a maximum penalty of 15 years’ imprisonment;
(c)charge 9 (knowingly dealing with the proceeds of crime) related to jewellery, gold items, luxury watches, luxury handbags and shoes, to the total value of $319,248;
(d)charge 10 (knowingly dealing with the proceeds of crime) related to cash in the sum of $1,850; and
(e)Lang had no prior criminal history.[15]
[15]Lang Reasons, [1]–[3].
After referring to the prosecution opening, the judge summarised Lang’s offending,[16] noting that:
(a)Lang was Teoh’s trusted associate and co-principal ‘in this drug distribution syndicate’;
(b)Lang’s offending was for the period of 26 April 2022 to 31 May 2022, during which time he trafficked a total of 14 kilograms of heroin; and
(c)the knowingly dealing with the proceeds of crime charges (charges 8, 9 and 10) involved the amounts to which we have already referred.
[16]Ibid [4]–[21].
Under the heading ‘Your personal circumstances’,[17] the judge referred to the following matters:
(1)At the time of the offending, Lang was 27, but would turn 29 some two months after being sentenced.
(2)Lang fell to be sentenced as a person with no prior criminal history.
(3)At the time of sentencing, Lang had been in a relationship for some nine years. One of his two daughters has multiple medical conditions which had required no less than 11 hospital admissions. One of the exhibits tendered on Lang’s behalf noted that this daughter was ‘at risk of sudden and extreme life-threatening health deterioration’.
(4)Lang’s partner could not visit him in prison because she is serving a Community Correction Order. His children were being taken to visit him by his sister.
(5)Lang is a Malaysian citizen, on a bridging visa since 2013. He and his partner were trying to stay in Australia, no doubt (as the judge put it) to obtain the best medical help and treatment for their daughter. Lang’s offending and imminent deportation had put an end to that chance for his daughter.
(6)Lang reported that his father was an alcoholic and violent towards him.
(7)Lang had been educated to the equivalent of Year 12. He gave a history of being an ice user since 2015. He had relied on gambling income to support his family. His stated reason for offending was the escalation in his drug use and gambling.
(8)On 5 October 2023, Lang was assessed by Luke Armstrong, a consulting psychologist. As a result of that assessment, Mr Armstrong concluded that Lang suffered from a borderline personality disorder; stimulant use disorder; opioid use disorder; and gambling disorder. Lang had engaged in a number of courses while on remand to assist in his rehabilitation.
[17]Ibid [23]–[30].
In the course of setting out the relevant sentencing considerations, the judge noted that Lang had pleaded guilty at an early stage, and that his plea had ‘the utilitarian value of allowing for the orderly and effective administration of justice’.[18] The judge said that Lang’s plea was also a clear acknowledgement by him that he accepted responsibility for his criminal behaviour; and also recognised that he was willing to facilitate the course of justice. The judge accepted that the plea of guilty indicated and demonstrated ‘some remorse’ on Lang’s behalf.[19]
[18]Ibid [35].
[19]Ibid [36].
After referring to Lang’s plea of guilty having been entered when there was a delay in the criminal trial listings due to the COVID-19 pandemic, the fact that Lang was entitled to rely on the principles set out in Worboyes,[20] and making reference to the standard sentencing regime, the judge said:
[20]Worboyes v The Queen [2021] VSCA 169 (Priest, Kaye and T Forrest JJA) (‘Worboyes’).
Your offending is serious as indicated by the following matters:
(a)You were directly involved in a drug trafficking syndicate from 26 April 2022 to 31 May 2022, a little over one month.
(b)      You were in charge of the safe houses, that is, two of them, where the drugs were prepared, packaged, and stored.
(c)      You were involved in five separate transactions in the period of trafficking heroin.
(d)     You were in possession, for sale, of 4.2 kilograms of heroin on 31 May 2022 at safe house 2.
(e)      The total of your drug involvement was 19 times a large commercial quantity.
(f)      When your home and safe houses were searched you were in possession of approximately $400,000 in cash which was the proceeds of crime, which are Charges 8 and 10.
(g)      In your home jewellery, watches, handbags and other luxury items, gold, et cetera, to the value of $391,000 which are the proceeds of crime were also located.
You are clearly a principal, together with Teoh, in the drug trafficking syndicate. Your moral culpability is high for the overall offending to which you have pleaded.
In terms of parity of sentence with your co-accused Teoh, your offending is over a shorter period, that is, one month, instead of the two months in his case, and you do not have any relevant prior criminal history that Teoh has admitted. Nevertheless, you were in this together and driven by the financial rewards which were apparent when your home and safe houses were raided by the police.[21]
[21]Lang Reasons, [42]–[44].

The judge again referred to Lang’s likely deportation and the consequences that would have (including consequences for his daughter), before assessing Lang’s prospects of rehabilitation as ‘fair’.[22]
[22]Ibid [45]–[46].
The judge said that he had cumulated parts of the sentences in respect of charges 8, 9 and 10 on the base sentence of charge 4 ‘to reflect the additional criminality relevant to the proceeds of crime offences’. He went on to say, however, that he had taken into account the sentencing principles of totality ‘so as not to impose a crushing sentence’.[23] The Lang Reasons concluded:
The predominant sentencing principle is general deterrence. Sentencing principles of general and specific deterrence, just punishment, protection of the community, denunciation of your actions and your rehabilitation dictate that the only just sentence is a substantial term of imprisonment and a fixed non-parole period.[24]
[23]Ibid [47].
[24]Ibid [48].

Cheng Reasons

At the start of the Cheng Reasons, the judge identified the two charges to which Cheng pleaded guilty, noting:
(a)charge 1 (trafficking in a large commercial quantity of a drug of dependence) carried a maximum penalty of life imprisonment, and was also a standard sentencing offence with a standard sentence of 16 years;
(b)charge 2 (possessing a drug of dependence) carried a maximum penalty in Cheng’s circumstances of 1 year’s imprisonment; and
(c)Cheng had no prior criminal history.[25]
[25]Cheng Reasons, [1]–[2].
After referring to the prosecution opening, the judge summarised Cheng’s offending,[26] noting that:
(a)Cheng took instructions and orders from Teoh. He drove a black Lexus and acted as a dedicated driver or courier for Teoh and Lang. He was regularly tasked by Teoh to deliver drugs, collect money from customers, collect drugs from safe houses and assist Lang with the preparation of drugs for sale;
(b)the prosecution had accepted a plea to trafficking a large commercial quantity of heroin based on an intention to traffick 6.3347 kilograms of heroin, which was 8.4 times the large commercial quantity threshold, in circumstances where the prosecution did not allege that Cheng had knowledge of (and hence an intention to traffick) the specific weight of the product sold in respect of those transactions;
(c)between 30 March 2022 and 31 May 2022, Cheng was involved in 41 of the 43[27] transactions referred to in the prosecution opening. His role was as a trusted person by Teoh and Lang in the conduct of their drug distribution syndicate. He delivered significant amounts of heroin on numerous occasions, collected cash payments and delivered them predominantly to Teoh. He had access to the safe houses where the drugs were stored by Lang; and
(d)when police searched the place where Cheng lived, amongst other things, they found 6.8 grams of methylamphetamine. This was the basis for charge 2.
[26]Ibid [3]–[11].
[27]For completeness, we note that there are in fact 45 transactions referred to in the prosecution opening.
Under the heading ‘Your personal circumstances’, the judge referred to the following matters:
(1)At the time of sentencing, Cheng was 28 years of age. He was born in Malaysia and was a Malaysian citizen. Both his parents were still alive and live in Malaysia. Cheng left Malaysia when he was 19, coming to Australia on a student visa in 2014/15 — although he had never formally enrolled in any form of study.
(2)On 29 September and 11 October 2023, Cheng was assessed by Gina Cidoni, a registered psychologist. Cheng told Ms Cidoni that he commenced using cannabis in 2018 and then methylamphetamine and then ketamine. Ms Cidoni assessed him as being ‘at a slow average range for auditory attention and working memory’. Ms Cidoni’s opinion was that he suffered from substance use disorder and gambling use disorder.
(3)Cheng has phone contact with his parents from prison, but otherwise no family support in Australia.
In the course of setting out the relevant sentencing considerations, the judge noted that, of this group of offenders, Cheng was ‘the last to indicate a plea of guilty’ — his plea having been ‘finalised on 18 September 2023’.[28] The judge accepted that Cheng’s plea of guilty was indicated at an early stage; and that the plea had ‘the utilitarian value of allowing for the orderly and effective administration of justice’.[29] The judge said that Cheng’s plea of guilty was also a clear acknowledgement by him that he accepted his responsibility for his criminal behaviour; and also recognised that he was willing to facilitate the course of justice. The judge accepted that the plea of guilty indicated and demonstrated remorse on Cheng’s part.[30]
[28]Cheng Reasons, [21].
[29]Ibid [22].
[30]Ibid [23].
The judge noted that Cheng’s plea was given at a time when there was still a delay in trial proceedings due to the COVID-19 pandemic, saying that Cheng was entitled to a Worboyes[31] discount.
[31][2021] VSCA 169.
The judge assessed Cheng’s offending ‘at the lower end of the mid-range offending’,[32] before noting that Cheng will be deported from Australia at the completion of his sentence.[33]
[32]Reasons, [27].
[33]Ibid [28].
The judge noted again that Cheng had no direct family support in Australia, accepting that Cheng’s poor English language skills and his lack of family support and the prospect of deportation would make his time in custody more onerous.[34]
[34]Ibid.
The judge noted that Cheng’s explanation for his offending was that he needed the money for his gambling addiction, before saying that there was little evidence to support that submission. In any event, the judge did not accept that Cheng’s gambling problems decreased his level of moral culpability.[35]
[35]Ibid [29].
Finally, the judge said:
Your prospect of rehabilitation is difficult to assess. On the one hand you have no criminal history and were working as a plasterer. At the same time over a two-month period you are an integral part of sophisticated large scale drug distribution syndicate. There is little independent evidence about your life and supports. After serving a lengthy term of imprisonment your prospects are to be assessed as guarded.
The only sentence that satisfies the sentencing principles of general and specific deterrence, denunciation of your criminal behaviour, just punishment, protection of the community and your rehabilitation is a substantial term of imprisonment with a fixed non-parole period.[36]
[36]Ibid [30]–[31].

Tran Reasons

At the start of the Tran Reasons, the judge identified the two charges to which Tran pleaded guilty, noting:
(a)charge 3 (trafficking in a commercial quantity of a drug of dependence) carried a maximum penalty of 25 years’ imprisonment;
(b)charge 11 (knowingly dealing with the proceeds of crime) related to cash in the sum of $19,500, and carried a maximum penalty of 15 years’ imprisonment; and
(c)Tran had a criminal history ‘of limited significance’, although that history included ‘a previous court appearance for proceeds of crime offending’.[37]
[37]Tran Reasons, [1]–[5].
After referring to the prosecution opening, the judge summarised Tran’s offending,[38] noting that:
(a)Tran’s role was that ‘of a broker or commission agent between Teoh and other dealers in the trafficking of heroin’;
(b)Tran was ‘involved in trafficking quantities of heroin that exceeded the large commercial quantity threshold’;
(c)the prosecution did not allege that Tran had knowledge of the amounts (and hence the intention to traffick in the specific weight) of the product sold, and had accepted Tran’s plea to trafficking in a commercial quantity of heroin in the period between 3 April 2022 and 29 May 2022;
(d)Tran was involved in 10 of the 45 transactions referred to in the prosecution opening, involving 7.1 kilograms of heroin ‘which [was] an unspecified amount as to [Tran’s] precise knowledge’;
(e)Tran had a direct role in brokering the deals between Teoh and the ultimate recipient of the transacted product, and earned commissions on those transactions; and
(f)the knowingly dealing with the proceeds of crime charge (charge 11) involved $19,500 in cash found at Tran’s premises.
[38]Ibid [7]–[16].
Under the heading ‘Personal circumstances’,[39] the judge referred to the following matters:
(1)At the time of the offending, Tran was 49. At the time of sentencing, she was 50. She had a prior criminal record, but her offending was of limited relevance when considering the overall offending for which she fell to be sentenced.
(2)Tran’s parents passed away when she was a young child. She was raised by a woman who she thought was her mother until she was told otherwise when she was 15.
(3)Tran was born in Vietnam. She was a good student. She came to Australia at the age of 12 as a refugee.
(4)Tran’s first intimate partner was a violent drug addict and a chronic gambler. She had a son with that man, but now has little contact with that son. Later, she had another child by another partner. That second son is referred to in the prosecution opening as being a part of the heroin transactions referred to therein.
(5)Tran later had another child with another partner. At the time of her offending, she was in another relationship — this time with a man who is a chronic heroin addict.
(6)By 1994, Tran was a regular gambler. By 2017, she had commenced taking antidepressant medication. Her gambling ‘spiralled out of control yet again’.
(7)On 25 September and 6 October 2023, Tran was assessed by Mr Armstrong. He assessed her cognitive function in the borderline to low-average range. He diagnosed her ‘with dependent personality disorder’ and ‘with gambling abuse disorder’.
(8)At the time of sentencing, Tran’s youngest child was in high school and living with her two older children.
[39]Ibid [17]–[31].
After setting out relevant sentencing considerations, the judge referred to a submission made by Tran’s counsel that a combination sentence of imprisonment and ‘a lengthy CCO with rehabilitation conditions’ was the appropriate disposition. The judge rejected that submission, saying that Tran’s offending was ‘far too serious’ and that ‘any sentence short of a head sentence with a fixed non-parole period would be wrong in law’.[40] The judge said that the seriousness of Tran’s offending was indicated by the following matters:
[40]Ibid [38].
(a)your offending occurred over a period of almost two months;
(b)you were engaged in a total of 10 separate drug transactions;
(c)the total amount of the drug heroin transacted was 7.14 kilograms. It is not alleged and not a part of, obviously the allegations against you, and you are not sentenced on the basis you knew that the amounts of the drugs transacted on each occasion, hence the charge of commercial quantity, not large commercial quantity.
(d)you had an active role of a broker or conduit between Teoh, the seller, and the ultimate buyers;
(e)your motivation for your offending was financial reward;
(f)you were trusted by both Teoh and the buyers you introduced to Teoh. On occasions you argued with Teoh over the price of the product;
(g)your financial gain was not to support a lavish lifestyle. The money was used to finance your gambling and perhaps finance Thanh’s drug use;
(h)the amount of the financial gain is hard to determine but at the time of your arrest you were in possession $19,500 which was Charge 11.[41]
[41]Ibid [39].
The judge assessed Tran’s level of offending in respect of the trafficking in a commercial quantity charge as ‘greater than the mid-range offending’.[42]
[42]Ibid [40].
The judge said that Tran’s pleas of guilty ‘were indicated at an early stage’; had ‘the utilitarian value of allowing for the orderly and effective administration of justice’; and were a clear acknowledgement by Tran that she accepted responsibility for her criminal conduct. The judge also accepted that Tran’s plea of guilty to her charges indicated and demonstrated remorse on her part.[43]
[43]Ibid [40]–[41].
After referring to treatment Tran had received from her psychologist, Tracey Allen, the judge said that he took into account the principles enunciated in Worboyes — Tran’s plea of guilty having come at a time when the courts were still affected by lengthy delays due to the COVID-19 pandemic.[44]
[44]Ibid [42]–[43].
The judge took into account the delay between Tran’s offending and the final disposition of the prosecution (some 18 months), noting that Tran had engaged in a rehabilitation process with some success in order to address her gambling addiction. The judge said that this reflected on Tran’s prospects of rehabilitation, which he assessed as ‘fair’.[45]
[45]Ibid [44].
The judge accepted that Tran’s mental health condition of depression and anxiety would make her time in custody more burdensome than for a person of normal mental health. He also accepted that the separation from her children would be an additional burden.[46]
[46]Ibid [47].
Finally, the judge said:
The overriding sentencing considerations are general deterrence and protection of the community. The principles of specific deterrence just punishment and denunciation of your actions together with your rehabilitation dictate that the only just sentence is a lengthy term of imprisonment with a fixed non parole period.[47]
[47]Ibid [48].

Mong Reasons

At the start of the Mong Reasons, the judge identified the four charges to which Mong pleaded guilty, noting:
(a)charge 1 (trafficking in a commercial quantity of a drug of dependence) carried a maximum penalty of 25 years’ imprisonment;
(b)charges 12, 13 and 14 (possessing a drug of dependence) carried a maximum penalty in Mong’s circumstances of 1 year’s imprisonment;
(c)Mong had a relevant criminal history, having been convicted in December 2002 on two charges of trafficking heroin and sentenced to a total effective sentence of 9 years’ imprisonment, with a non-parole period of 6 years and 6 months; and, having been sentenced again in November 2013 for trafficking in a large commercial quantity of heroin, to a total effective sentence of 11 years and 6 months, with a non-parole period of 8 years and 6 months; and
(d)Mong was a ‘long-term and persistent trafficker in the drug heroin’, having just completed the sentence imposed in November 2013 when he commenced the offending for which he fell to be sentenced by the judge.[48]
[48]Mong Reasons, [1]–[4].
After referring to the prosecution opening, the judge summarised Mong’s offending,[49] noting that:
(a)Teoh maintained a relationship with Mong in order to supply Teoh’s customers — Mong being one of Teoh’s traffickers;
(b)Mong acted as a mentor and advisor to Teoh regarding the management of drug distribution and the sourcing of drugs;
(c)Mong and Tran were each involved in trafficking quantities of heroin that exceeded the large commercial quantity threshold, which was the basis for sentencing — albeit that the prosecution had accepted pleas by each of them ‘to between dates trafficking in a commercial quantity of heroin, in circumstances where the prosecution [did] not allege knowledge of, and hence intention to traffick in, the specific weight of the product sold’;
(d)given Mong’s prior criminal history and connections, it was not surprising that he was in a position to advise and counsel Teoh;
(e)Mong was involved in a ‘hands-on manner’;
(f)between 28 March 2022 and 20 May 2022, Mong was involved in six separate transactions in amounts totalling 5.6 kilograms of heroin;
(g)Mong fell to be sentenced on the basis that the prosecution did not allege that he had knowledge of the specific weights and consequently did not have the intention to traffick a large commercial quantity; and
(h)the possession charges were ‘not significant offending’, involving small amounts of cannabis, MDMA and methylamphetamine.
[49]Ibid [7]–[17].
Under the heading ‘Your personal circumstances’,[50] the judge referred to the following matters:
(1)At the time of sentencing, Mong was 73 years of age. His surviving siblings live in Vietnam. He reported that he finished school in Year 8, before working in a steel mill in Vietnam.
(2)In 1978, when he was 28 years of age, Mong migrated to Australia with his wife. They have three adult children. His marriage broke down due to his periods in custody. He still has contact with one of his children. He is a ‘single man, old and in custody with limited prospects in the future’.
(3)On 25 May 2023, Mong was assessed by Daniella Kocic, a psychologist. Ms Kocic assessed him as suffering from generalised anxiety disorder and major depressive disorder. She also assessed his risk of reoffending as ‘high even at [his] advanced stage in life’.
(4)Mong had two relevant prior convictions for trafficking in heroin, to which we have already referred. He had now offended for a third separate time in trafficking in a commercial quantity of heroin. He had a very limited work history since coming to Australia, mainly supporting himself ‘by the proceeds of crime’.
[50]Ibid [18]–[24].
The judge noted that Mong had told Ms Kocic that he was very remorseful for his offending. The judge said that he found Mong to be ‘more regretful’ that he had been apprehended and would now serve a substantial term of imprisonment.[51]
[51]Ibid [24].
After setting out relevant sentencing considerations, the judge said that Mong’s prior criminal history was particularly relevant when considering the charge of trafficking in a commercial quantity of heroin. The judge noted that, due to his prior convictions in 2013 for trafficking in a large commercial quantity of heroin, Mong fell to be sentenced as a serious drug offender within the meaning of s 6B of the Sentencing Act 1991, and that the judge was required to have regard to the protection of the community as the principal purpose for which sentence was to be imposed.[52]
[52]Ibid [28].
The judge said that Mong’s plea of guilty ‘was indicated at an early stage’; had ‘the utilitarian value of allowing for the orderly and effective administration of justice’; and was a clear acknowledgement by Mong that he accepted responsibility for his criminal behaviour. The judge also accepted that Mong’s plea of guilty recognised his willingness to facilitate the course of justice, and indicated and demonstrated some remorse on his part.[53]
[53]Ibid [29]–[30].
The judge also noted that Mong’s plea was indicated at a time when the court was labouring under the trial backlog as a result of COVID-19 pandemic, and that the Worboyes discount was applicable in his case.[54]
[54]Ibid [31].
The judge said that Mong’s offending was serious as indicated by the following matters:
(a)Your offending took place over a two-month period.
(b)In that period you were engaged in six separate transactions.
(c)The total quantity of the heroin was 5.6 kilograms. I repeat, it is not alleged by the prosecution, and I am not sentencing you on the basis that you knew exactly how much it was.
(d)The telephone intercepts show that you were advising Teoh how to source the drugs on occasions. You were a mentor to him.
(e)You have significant prior convictions for drug trafficking in heroin. That is, you know the trade and you know the risks.
(f)You have shown limited remorse despite your statements to Ms Kocic.
(g)The possession charges relating to the cannabis and two forms of methylamphetamine are less significant.
(h)You were a facilitator in the movement of heroin from the syndicate conducted by Teoh and Lang to people further down the chain of drug trafficking.[55]
[55]Ibid [32].

The judge accepted that limb five of Verdins[56] (being the existence of a mental health condition which could mean that a given sentence would weigh more heavily on an offender than it would on a person in normal health) had some application in Mong’s case due to his diagnosed condition of generalised anxiety disorder and major depressive disorder.[57]
[56]R v Verdins (2007) 16 VR 269 (‘Verdins’).
[57]Mong Reasons, [33].
The judge assessed Mong’s prospects of rehabilitation as ‘poor’, noting his prior criminal history, lengthy sentences and ‘return to the trade that [he knew] that is, drug trafficking, upon release from prison’, all pointed to a return to criminality when he is released.[58]
[58]Ibid [34].
Finally, the judge said:
You are now a 73-year old man and I am required to take into account your declining years in finalising your sentence and I will do so.
The sentencing principles of protection of the community, general and specific deterrence, denunciation of your actions, just punishment and your rehabilitation dictate that the only just sentence is a substantial term of imprisonment with a fixed non-parole period.[59]
[59]Ibid [35]–[36].

Relevant legal principles to be applied

Two of the applicants (Lang and Cheng) were sentenced for the offence of trafficking in a large commercial quantity of a drug of dependence, with the remaining two (Mong and Tran) being sentenced for trafficking in a commercial quantity.
All four applicants (Lang, Cheng, Tran and Mong) complain that the sentences imposed on them were manifestly excessive, and two of the applicants (Lang and Cheng) make complaints about parity.
In the circumstances, it is convenient to set out in short compass the relevant principles to be applied when dealing with manifest excess and parity complaints, as well as the principles generally applicable to sentencing for offences involving the trafficking of drugs in commercial quantities.

Sentencing commercial quantity drug traffickers

In Lieu v The Queen,[60] this Court dealt with the principles applicable in the sentencing of offenders who had engaged in commercial quantity drug trafficking. The Court said:[61]
The principles applicable to the offences to which the applicant pleaded guilty are well established, and need not be rehearsed at length. Essentially, the determination of the seriousness of the offending is informed by a range of factors, including the role of the offender, the position of the offender in the drug trafficking (or importing) hierarchy, the nature and extent of the offender’s involvement in the enterprise, the sophistication of the enterprise, and the amount of drugs involved, or intended to be involved, in the enterprise. In describing the role of the offender in the hierarchy, it is important that any shorthand label attaching to that role does not obscure the nature and extent of the actions and involvement of the offender.
In determining the seriousness of the offence, the weight or amount of the drugs involved is a factor of some importance. That circumstance is relevant to determining the dimension of the enterprise in which the offender is involved, and the amount of profit that was expected from the enterprise, which generally constitutes the primary if not sole motive for the offending. The weight or amount of the drugs involved might also indicate that the enterprise, in which the offender has been involved, was far reaching, and sophisticated. On the other hand, that factor, per se, is not necessarily the primary or overriding factor in determining the gravity of the offending under consideration.
It is well recognised that in cases such as this significant weight is attached to the principle of general deterrence. The difficulty of detecting importation offences, and the great and far reaching social consequences stemming from the proliferation of illicit drugs in the community, are factors which support the importance of the concept of general deterrence in sentencing for such offences. In particular, it is recognised that, in light of the very large profits that motivate importation and trafficking offences, it is important that the sentence imposed by the courts “… must signal to would be traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment …”. On the other hand, the previous good character, and personal circumstances, of an offender in drug trafficking or importation offences are generally attributed less weight as a mitigating factor.[62]

Manifest excess

[60](2016) 263 A Crim R 173; [2016] VSCA 277 (Redlich, Beach and Kaye JJA) (‘Lieu’).

[61]Beach and Kaye JJA, Redlich JA agreeing.

[62]Lieu (2016) 263 A Crim R 173, 185–6 [41]–[43] (emphasis added, footnotes omitted).

As has been said many times before, the ground of manifest excess will only succeed if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[63] That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did if proper weight had been given to all of the relevant circumstances of the offending and to the offender. As has also been said many times, this is a stringent requirement, difficult to satisfy.[64]

Parity

[63]Clarkson v The Queen (2011) 32 VR 361, 384 [89].

[64]Ibid.

The principles governing parity are well known. They were conveniently summarised by this Court in Anthony v The Queen,[65] as follows:
As has been said before, equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a ‘marked’ or ‘manifest’ disparity between sentences which gives rise to a justifiable sense of grievance on an appellant’s part, then the principle of parity may be said to have been infringed. However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in a way in which he or she did. Where an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way in which he or she did, the approach is relevantly analogous to that which arises when it is said that a sentence is manifestly excessive.[66]
[65][2016] VSCA 22.
[66]Ibid [12]. The Court referred to Lowe v The Queen (1984) 154 CLR 606; R v Postiglione (1997) 189 CLR 295; Green v The Queen (2011) 244 CLR 462; Hilder v The Queen [2011] VSCA 192, [38]–[39]; Khoa v The Queen [2015] VSCA 80; McCloskey-Sharp v The Queen [2015] VSCA 87; Roujnikov v The Queen [2015] VSCA 97, [24]–[25]; Collins v The Queen [2015] VSCA 106, [23]. See also Marchei v The Queen [2021] VSCA 58, [49]; Grey v The King [2024] VSCA 75, [61]–[66].
In Abdullahi v The King,[67] the Court noted the similarity between the grounds of manifest excess and want of parity:
An argument based on an apparent disparity in treatment of co-offenders has a close similarity to an argument of manifest excess in a sentence. In both cases, the exercise of the sentencing discretion is impugned on the basis that, without necessarily ascribing the asserted miscarriage in the discretion to any specific error, the sentence imposed lay outside permissible bounds.[68]
[67][2024] VSCA 156.
[68]Ibid [51] (Emerton P and McLeish JA).
The Court then set out the following passage from the judgment in Kellway (a pseudonym) v The King[69]:
The purpose of parity in sentencing is to ensure consistency in punishment.[70] As Kaye AJA (as his Honour then was) said in Dawid v Director of Public Prosecutions, ‘the principle of parity is based on the broad principle of equal justice’.[71] Significant disparities in sentences ‘should be capable of a rational explanation’.[72] However, that is not to say that there will be a ‘scientifically precise answer to the quantification of disparities between offenders’.[73] The assessment of the amount of disparity between offenders is ‘[u]ltimately … an evaluation based on impression’.[74]
A ground of appeal complaining about disparity should be approached within the same analytical framework as the ground of manifest excess.[75] As this Court said in Barbaro v The Queen:
[T]he question for consideration is whether it was reasonably open to the sentencing judge to differentiate — or fail to differentiate — between the co‑offenders in the way he/she did, if proper weight were given to the similarities and differences between them as regards culpability, criminal record and personal circumstances.[76]
For an appellate court to intervene on the basis of disparity, the disparity must be ‘marked’ or ‘manifest’ and such as to produce a legitimate and justifiable sense of grievance in the objective observer’.[77] The question whether there is such a sense of grievance depends on whether there were reasonable grounds for differentiation (or lack thereof) between the co-offenders.[78] As Gaudron, Gummow and Hayne JJ said in Wong v The Queen: ‘Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect’.[79]
[69][2023] VSCA 109, [124]–[127] (Emerton P, Niall and Kaye JJA) (citations in original).
[70]Abdou v The Queen [2015] VSCA 359, [62] (Redlich, Beach JJA and Beale AJA) (‘Abdou’). See also Green v The Queen (2011) 244 CLR 462, 473 [28] (French CJ, Crennan and Kiefel JJ) (‘Green’); Nipoe v The Queen [2020] VSCA 137, [38] (Maxwell P, Niall and Emerton JJA).
[71][2013] VSCA 64, [43] (‘Dawid’).
[72]R v Tien [1998] VSCA 6, [40] (Tadgell JA).
[73]Ah-Kau v The Queen [2018] VSCA 296, [51] (McLeish and T Forrest JJA).
[74]Ibid.
[75]Barbaro v The Queen (2012) 226 A Crim R 354, 371 [63] (Maxwell P, Harper JA and T Forrest AJA); [2012] VSCA 288.
[76]Ibid 371–2 [63] (Maxwell P, Harper JA and T Forrest AJA).
[77]R v Mercieca [2004] VSCA 170, [17] (Winneke P).
[78]Abdou [2015] VSCA 359, [62] (Redlich, Beach JJA and Beale AJA).
[79](2001) 207 CLR 584, 608 [65] (emphasis in original).
The Court concluded:
As this passage reveals, the traditional test for describing a case where the sentencing discretion has miscarried as a result of the differential treatment of two or more co-offenders is that the difference, or disparity, in their treatment gives rise to a ‘justifiable sense of grievance’ in an objective observer. The word ‘grievance’ has subjective overtones, but the test is objective. Reduced to its essentials, a ‘justifiable sense of grievance’ means simply that the difference in sentencing outcomes was not reasonably open. That is what gives rise to the objective ‘sense of grievance’. It is the unreasonableness of the difference that makes the grievance ‘justifiable’.[80]
[80]Abdullahi v The King [2024] VSCA 156, [54] (Emerton P and McLeish JA).

Lang’s application in this Court

Lang’s submissions

Under proposed ground 1, Lang contended that the orders for cumulation on charges 8, 9 and 10 were each manifestly excessive and resulted in a total effective sentence that was itself manifestly excessive. The orders for cumulation and resulting total effective sentence were submitted to be manifestly excessive having regard to the combination of:
•the length of the base sentence;
•totality;
•Lang’s early guilty pleas;
•Lang having no prior criminal record;
•Lang’s personal background, in particular his exposure to violence and abuse which Mr Armstrong had said had had a profound impact on Lang’s personality development;
•Lang’s daughter’s ‘very complex life-threatening medical needs’;
•the progress that Lang had made towards rehabilitation while on remand and his prospects for rehabilitation;
•the impact of the COVID-19 pandemic on the administration of criminal justice and the hardship experienced by those in custody;
•Lang’s inevitable deportation; and
•proportionality.
Lang submitted that the imposition of the same total effective sentence as was imposed on Teoh, notwithstanding that Lang’s trafficking was over a shorter period of time and Teoh had a relevant criminal history (having been convicted of trafficking heroin in 2019 and sentenced to a term of imprisonment of eight months)[81] and had prospects for rehabilitation which were poor,[82] demonstrated that the total effective sentence imposed on Lang was manifestly excessive. Lang also submitted that there was an unacceptable lack of disparity between the non-parole periods imposed on him and Teoh. It was submitted that it was not open to the judge to impose the same non-parole periods on both Lang and Teoh, in circumstances where:
•Lang had no prior convictions, whereas Teoh had a relevant criminal history;
•Lang had more significant matters in mitigation than did Teoh; and
•the judge had found that Lang’s prospects of rehabilitation were ‘fair’, whereas Teoh’s were ‘poor’.
[81]Teoh Reasons, [2].
[82]Because of his (Teoh’s) prior conviction for trafficking: Teoh Reasons, [38].
Under proposed ground 2, Lang contended that the imposition of the same total effective sentence and non-parole period as that imposed on Teoh revealed an error in the application of the parity principle. It was submitted that a lower total effective sentence and non-parole period should have been imposed on Lang compared to that imposed on Teoh.

Lang: consideration and conclusion

There is no substance in Lang’s first proposed ground of appeal. Lang’s offending was extremely serious. He was the co-principal with Teoh in a large commercial drug trafficking business. The maximum sentence was life imprisonment and the standard sentence for the offence is 16 years’ imprisonment. The sentence imposed on charge 1 and the total effective sentence imposed on Lang were, if anything, moderate in all the circumstances. Moreover, but for parity considerations, about which we will say more below, there is no basis upon which it could be concluded that the non-parole period was manifestly excessive.
The fact that Lang received the same total effective sentence as Teoh does not demonstrate any error in the application of principles of parity or suggest that the sentence imposed on Lang on charge 1, or any of the orders for cumulation or the total effective sentence were manifestly excessive. It is to be observed that Lang’s offences of knowingly dealing with the proceeds of crime were far more serious than Teoh’s offences of possessing a drug of dependence.
Additionally, the imposition of the shorter sentence on Lang for trafficking in a large commercial quantity of a drug of dependence than the sentence imposed on Teoh for the same offence well reflected the differences which Lang now relies upon in support of his submission that he should not have received the same total effective sentence as Teoh. Lang received a shorter sentence on the trafficking charge, but at the same time fell to be sentenced for the proceeds of crime charges, which were serious offences that involved separate and distinct criminality.[83]
[83]See Phillips v DPP (Cth) [2024] VSCA 132, [48] (McLeish and Niall JJA).
The issue of the lack of disparity between Lang and Teoh’s non-parole periods is in a different position. As the authorities referred to earlier show, the question is whether there were reasonable grounds for imposing the same non-parole period in respect of Lang and Teoh. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen: ‘Equal justice requires … different outcomes in cases that are different in some relevant respect’.[84]
[84](2001) 207 CLR 584, 608 [65] (emphasis in original).
For sentencing purposes, there are remarkably few relevant differences between the two cases here. The principal ones are that Teoh had a prior conviction for trafficking, for which he had served a term of 8 months’ imprisonment, whereas Lang had no relevant prior convictions. Substantially on that account, the judge assessed Teoh as having ‘poor’ prospects of rehabilitation whereas those of Lang were ‘fair’.
In our view these differences required a different outcome when it came to fixing the non-parole periods for Lang and Teoh. A person’s prospects of rehabilitation are ‘almost always a significant consideration’ in fixing a non-parole period.[85] No other sentencing consideration accounts for the lack of difference.[86] In all the circumstances, it was not open to the judge to impose the same non-parole period in respect of both Lang and Teoh.
[85]DPP v Josefski (2005) 13 VR 85, 94 [43] (Callaway JA); Kumova v The Queen (2012) 37 VR 538, 545 [27] (Redlich and Osborn JJA); Constantinou v The King [2024] VSCA 79, [125] (Macaulay, Kaye and T Forrest JJA).
[86]It is of some interest to note that the judge’s declarations under s 6AAA of the Sentencing Act 1991 did allow for a difference of 6 months between the non-parole periods.
For the reasons given above, Lang’s application for leave to appeal against sentence must be allowed. In place of the non-parole period of 12 years, we will fix a term of 11 years. In doing so, we observe that considerations of ‘tinkering’, which can arise in the context of arguments about manifest excess (or inadequacy), do not necessarily apply in the same way when it comes to parity. Here, as we have explained, the issue is simply whether it was reasonably open to treat Lang and Teoh in the same way when it came to fixing the non-parole period. Having found that it was not, the comparison that is more apt is between the non-parole periods of the two offenders, not the period imposed by the judge and that we would impose, in respect of the offender before the Court.

Cheng’s application in this Court

Cheng’s submissions

Under proposed ground 1, Cheng contended that the individual sentence imposed on him on charge 1, the total effective sentence and the non-parole period did not comply with the principle of parity when compared with the sentences imposed on Teoh and Lang. Cheng does not take issue with the judge’s characterisation of his role as being a ‘trusted transporter of drugs and money on behalf of [his] two principal co-accused, Lang and Teoh’, who was involved in the offending for over two months, taking part in some 41 transactions, with a direct involvement in transactions totalling some 8.4 times the large commercial quantity for heroin. Cheng submits that the sentences imposed on him, when compared to the sentences imposed on Teoh and Lang, do not adequately reflect the differences in their respective roles.
Additionally, Cheng submitted that the fact that Teoh and Lang were convicted for trafficking at least 14 kilograms of heroin (and, in Teoh’s case, an additional 28 grams of methylamphetamine), whereas he (Cheng) was only convicted in respect of a little over six kilograms of heroin, was also not adequately reflected in the sentence imposed upon him when compared with the sentences imposed upon Teoh and Lang.
Under proposed ground 1, Cheng ultimately submitted that, having regard to the disparity in role, quantum, knowledge and enrichment, the sentence imposed with respect to charge 1, the total effective sentence and the non-parole period did not adequately reflect the differences identified between himself (on the one hand) and Teoh and Lang (on the other hand).
Under proposed ground 2, Cheng submitted that the judge ‘erred in finding that [his] prospects of rehabilitation were guarded as a result of the lengthy term of imprisonment he was to serve’. In support of that submission, Cheng made the following points:
(1)First, it was contrary to the purpose of orders made under the Sentencing Act (being orders which are intended to deter, punish, denounce and rehabilitate offenders) to find that an applicant’s prospects would be guarded upon release by the very fact of his having served a lengthy period of incarceration.
(2)Secondly, the characterisation of Cheng’s prospects of rehabilitation could not be reconciled with the findings on rehabilitation the judge made in relation to Lang (‘fair’ prospects) and Teoh (‘poor’ prospects).
(3)Thirdly, it was submitted that the erroneous finding that Cheng’s prospect of rehabilitation was guarded must have resulted in a sterner sentence being imposed than would otherwise have been the case if the judge had found his prospects to be good or even fair.

Cheng: consideration and conclusion

There is no substance in either of Cheng’s proposed grounds of appeal. Cheng’s offending, like the offending of Lang and Teoh, was extremely serious. The reasons given by the judge in sentencing Cheng, and the sentence imposed by the judge, well demonstrate that the judge took into account the circumstances of Cheng’s offending, each of the differences between Cheng (on the one hand) and Teoh and Lang (on the other hand) and the matters in mitigation relied upon by Cheng.
On the commercial quantity trafficking charge, Cheng received a sentence which was three years shorter than the sentence imposed on Lang, and five years shorter than the sentence imposed on Teoh. When one considers individually the matters required to be taken into account in the sentencing syntheses of Cheng, Lang and Teoh, it cannot be said that the sentence imposed on Cheng was wholly outside the permissible range of sentencing options available to the judge, or that there was some impermissible (not open) lack of disparity between Cheng’s sentence when compared with the sentences imposed on Lang and Teoh.
Specifically, the difference of five years between Cheng’s sentence for trafficking in a large commercial quantity and Teoh’s sentence for the same offence well reflected the differences in their roles and respective circumstances. While the difference between Cheng’s sentence and Lang’s sentence on the same charge was only three years, we think that this difference also reflected the differences in their roles and circumstances — particularly so, having regard to the fact that Lang’s sentence for his large commercial quantity trafficking offence was likely compressed, so as not to infringe principles of totality, given the periods of cumulation he was ordered to serve in respect of the charges of knowingly dealing with the proceeds of crime for which he also fell to be sentenced.
As to Cheng’s complaint about the judge’s treatment of his prospects of rehabilitation, we see no error in the judge saying that Cheng’s prospects of rehabilitation were difficult to assess.[87] Plainly, the judge so concluded because of the incongruity between Cheng’s work history and his offending, coupled with the fact that there was ‘little independent evidence about [Cheng’s] life and supports’.[88]
[87]Cheng Reasons, [30].
[88]Ibid.
Contrary to Cheng’s submissions, the judge did not conclude that his prospects of rehabilitation were guarded because he was to serve a lengthy term of imprisonment. Fairly read, his Honour said no more than that, after serving a lengthy term of imprisonment, Cheng’s prospects of rehabilitation, which were difficult to assess for the reasons given by the judge, had to be assessed as guarded.
Moreover, the fact that Lang’s prospects of rehabilitation, determined by the judge on the evidence tendered on behalf of Lang, were assessed as fair throws no light on whether it was open to the judge to conclude, on the evidence tendered in relation to Cheng, that Cheng’s prospects were guarded.
For the reasons given above, Cheng’s proposed application for leave to appeal is not reasonably arguable. In the circumstances, it would be futile to grant him the extension of time he seeks within which to apply for leave to appeal against sentence. Accordingly, that application must be refused.

Tran’s application in this Court

Tran’s submissions

Under her sole proposed ground of appeal, Tran contended that the sentence imposed on charge 3 was manifestly excessive. In support of that contention, she submitted that the factors relied upon by the judge at Tran Reasons [39] when, ‘properly analysed, could not properly justify the sentence imposed’.
Tran also took issue with the judge’s references to the total amount of the drug heroin transacted by her, being 7.14 kilograms, and any reasoning by his Honour that this amount was in any way relevant to the seriousness of her offending — given that she had pleaded guilty to trafficking in only a commercial quantity in circumstances where the prosecution did not seek to prove that she had the requisite knowledge or intention to traffick in a large commercial quantity.
Tran submitted that hers was a case where, in the absence of evidence of knowledge, the court should have looked to external factors to identify the level of her criminality, such as the reward given. As to reward, Tran submitted that the only matter that his Honour could point to was her possession of $19,500 — noting his Honour’s conclusion at Tran Reasons [39(g)] that her financial gain ‘was not to support a lavish lifestyle’.
Tran submitted that the judge was incorrect to categorise her level of offending as ‘greater than the mid-range offending’.[89]
[89]Tran Reasons, [40].
Finally, in mitigation, Tran again relied upon her early plea of guilty; remorse and her acceptance of responsibility; the Worboyes discount; delay; her demonstrated rehabilitation; her rehabilitation prospects being further informed by her limited criminal history and children as a protective factor; Verdins; her anxiety flowing from the separation of her from her children; and the circumstances of her offending, ‘namely a gambling addiction coinciding with her partner’s drug addiction and son’s drug addiction and violence’.

Tran: consideration and conclusion

There is no substance in Tran’s proposed ground of appeal.
First, there was no error in the judge’s treatment of the amount actually trafficked by Tran in the transactions to which she was a party. Whatever the intention (as to amount) of an offender who trafficks drugs of dependence, the amount actually trafficked is always a relevant fact in the sentencing synthesis. A fair reading of the Tran Reasons shows that his Honour was careful to distinguish between the amount actually trafficked and the amount for which Tran was criminally responsible having regard to her knowledge and intention.
Secondly, in the circumstances of this case, and bearing in mind that the maximum penalty for trafficking in a commercial quantity of a drug of dependence is 25 years, it cannot sensibly be contended that a sentence of 7 years and 6 months for someone in Tran’s position was wholly outside the permissible range of sentencing options available to the judge. Indeed, to our minds, notwithstanding the various matters that Tran was able to rely on in mitigation, the sentence imposed by the judge appears moderate. More particularly, as both the Tran Reasons and the sentence itself discloses, in sentencing Tran, the judge gave careful consideration to each of the matters she relied upon in mitigation.
Finally, bearing in mind that the judge was sentencing Tran for commercial quantity drug trafficking, we see no error in his Honour’s categorisation of her offending as ‘greater than the mid-range’. That said, the issue in this Court is not whether that categorisation was open to his Honour, but, as we have said, whether the sentence was within the permissible range. And as we have already said, it was.
For these reasons, Tran’s proposed application for leave to appeal is not reasonably arguable. In the circumstances, it would be futile to grant her the extension of time she seeks within which to apply for leave to appeal against sentence. Accordingly, that application must be refused.

Mong’s application in this Court

Mong’s submissions

Under his sole proposed ground of appeal, Mong contended that the sentence imposed on charge 1 and the non-parole period were each manifestly excessive. In support of that contention, Mong submitted that, while the judge noted that he was 73 years of age, his Honour ‘did not however set out how [his] age was relevant to the sentencing task’. Mong then observed that in R v RLP,[90] this Court, when resentencing a 77 year old offender in ill-health, said:
[90](2009) 213 A Crim R 461; [2009] VSCA 271 (Neave and Redlich JJA, and Hollingworth AJA) (‘RLP’).
We approach the conjunction of the appellant’s advanced years and ill health with these propositions in mind.
1.The age and health of an offender are relevant to the exercise of the sentencing discretion.
2.Old age or ill health are not determinative of the quantum of sentence.
3.Depending upon the circumstances, it may be appropriate to impose a minimum term which will have the effect that the offender may well spend the whole of his remaining life in custody.
4.It is a weighty consideration that the offender is likely to spend the whole or a very substantial portion of the remainder of their life in custody.
5.Other sentencing considerations may be required to surrender some ground to the need to exercise compassion to take account of the real prospect that the offender may not live to be released and that the offender’s ill health will make his or her period of incarceration particularly onerous.
6.Just punishment, proportionality and general and specific deterrence remain primary sentencing considerations in the sentencing disposition notwithstanding the age and ill health of the offender.
7.Old age and ill health do not justify the imposition of an unacceptably inappropriate sentence.[91]
[91]RLP (2009) 213 A Crim R 461, 476 [39] (footnotes omitted).
Mong submitted that the weight that fell to be given to general deterrence and other relevant sentencing purposes was to be assessed ‘in the context that each year of the sentence imposed represented a more significant proportion of the life left to [him] (relative to a younger offender)’. He also submitted that, given his personal circumstances, the sentence imposed by the judge ‘destroyed any reasonable expectation of useful life after release’.
Additionally, Mong submitted that the non-parole period fixed (not being a shorter period relative to the total effective sentence, in circumstances where he had previously completed parole) also pointed to insufficient weight having been given to his age and the prospect of him spending the whole or a very substantial portion of the remainder of his life in custody.
In the course of his submissions, Mong also referred to and relied upon the various matters in mitigation which he relied upon at sentencing (mental ill-health, early guilty plea and the effects of the COVID-19 pandemic).

Mong: consideration and conclusion

There is no substance in Mong’s proposed ground of appeal. The reasons given by the judge in sentencing Mong, and the sentence imposed by the judge, well demonstrate that the judge took into account Mong’s personal circumstances, including his age at the time of offending (the judge describing Mong as a ‘single man, old and in custody with limited prospects in the future’)[92] and Mong’s mental health conditions.[93] Indeed, contrary to Mong’s submissions, having noted that Mong was a 73 year old man, the judge said that he was required to take into account Mong’s ‘declining years’ in sentencing him, which his Honour said he would do.[94]
[92]Mong Reasons, [19], [35].
[93]Ibid [20], [33].
[94]Ibid [35].
As the judge correctly observed, having regard to Mong’s conviction in 2013 for trafficking in a drug of dependence in a large commercial quantity,[95] Mong fell to be sentenced as a serious drug offender — requiring the judge to have regard to the protection of the community from Mong as the principal purpose for which sentence was to be imposed on him. Given this purpose, and Mong’s drug trafficking history, it can hardly be sensibly suggested that the sentence imposed by the judge was wholly outside the permissible range of sentences open to his Honour. Indeed, in all the circumstances, we think that the sentence imposed by the judge was entirely appropriate. Moreover, we see no arguable error in the fixing of the non-parole period.
[95]As to the circumstances of which, see Mong v The Queen [2015] VSCA 33.
For these reasons, Mong’s proposed application for leave to appeal is not reasonably arguable. In the circumstances, it would be futile to grant him the extension of time he seeks within which to apply for leave to appeal against sentence. Accordingly, that application must be refused.

Conclusion

Lang’s application for leave to appeal against sentence will be allowed and the non-parole period imposed in respect of him will be set aside; in its place a non-parole period of 11 years will be fixed. The applications for extensions of time made by Cheng, Tran and Mong will be refused.
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[2025] VSCA 49

28 March 2025