Le v The Queen; Le v The Queen - [2011] VSCA 391

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2011 0105

UT VAN LE
UT VAN LE	Appellant
v
THE QUEEN	Respondent
S APCR 2011 0106
BILL VAN LE v THE QUEEN	Appellant
BILL VAN LE v THE QUEEN	Respondent

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JUDGES:	ASHLEY and HARPER JJA and JUDD AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 October 2011
DATE OF JUDGMENT:	25 November 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 391
JUDGMENT APPEALED FROM:	R v Ut Van Le and R v Bill Van Le (Unreported, County Court of Victoria, Judge Dean, 8 April 2011)

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CRIMINAL LAW – Sentence – One count of trafficking heroin – Appellants sentenced to six years’ imprisonment with non-parole period of four years – Whether principles of totality, proportionality and parity offended – Whether sentences outside range of sentences available in circumstance – Parole – Cancellation of parole – Pre-sentence detention – Appeal allowed – Appellants re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Appellant Ut Van Le	Mr M J Croucher SC	Melasecca Kelly & Zayler
For the Appellant Bill Van Le	Mr T Kassimatis	Melasecca Kelly& Zayler
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

On 8 April 2011 a judge sentenced two brothers, Ut Van Le (‘UL’) and Bill Van Le (‘BL’) to six years’ imprisonment on a count of trafficking heroin in the period 10 May to 23 July 2010. He fixed, in each case, a non-parole period of four years. The offenders had pleaded guilty. The judge made a statement, pursuant to s 6AAA of the Sentencing Act 1991, that if they had been found guilty after trial he would have imposed in each case a sentence of seven years and six months’ imprisonment, with a non-parole period of five years and six months. The maximum penalty for the offence is 15 years’ imprisonment.

Grounds of appeal

Now, by leave, UL and BL appeal against sentence. Orally, their counsel argued these grounds:

UL

Ground 1:The learned sentencing judge erred by finding in the absence of any evidence, without the prosecution having alleged it, that the applicant accumulated a Ferrari during the charge period.
Ground 2:The learned sentencing judge erred in sentencing the appellant by offending the principles of totality, proportionality and parity by not at all moderating the sentence imposed having regard to the fact that the applicant had to be sentenced for re-offending whilst on parole.
Ground 5: The learned sentencing judge erred by sentencing the applicant to a term of imprisonment (both head sentence and non-parole period) that was wholly outside the range of sentencing available in the circumstances [accompanied by four particulars]
BL
Ground 1:The learned sentencing judge erred by finding in the absence of any evidence, without the prosecution having alleged it, that the applicant accumulated a Ferrari during the charge period.
Ground 4: The learned sentencing judge erred by sentencing the applicant to a term of imprisonment (both head sentence and non-parole period) that was wholly outside the range of sentencing available in the circumstances [accompanied…

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.

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Details

Case: [2011] VSCA 391
Decision Date: 25 November 2011

CaseChat Overview and Summary

In the case of Le v The Queen, the appellants, Le and another individual, appealed their sentences following their conviction for trafficking heroin. The High Court of Australia reviewed the sentences imposed by the lower courts and assessed whether the principles of totality, proportionality, and parity were adhered to, as well as whether the sentences were outside the appropriate range for the circumstances. The appellants were each sentenced to six years’ imprisonment with a non-parole period of four years, and they argued that their sentences were excessive and failed to account for relevant mitigating factors.

The court considered whether the sentences imposed were appropriate in light of the statutory guidelines and principles of sentencing. Specifically, the court examined the principle of totality, which requires that the totality of the sentences for multiple offences must be proportionate to the overall criminality of the offender. The court also evaluated the principle of proportionality, which necessitates that the severity of the sentence must be commensurate with the gravity of the offence, and the principle of parity, which requires that similarly situated offenders receive similar sentences. Furthermore, the court assessed whether the sentences were outside the range of sentences that could be considered appropriate in the given circumstances.

The court found that the sentences imposed did not adequately reflect the principles of totality, proportionality, and parity. It determined that the sentences were excessive and did not take into account the relevant mitigating factors. Consequently, the High Court allowed the appeal and ordered the appellants to be re-sentenced. The court also addressed the issue of parole, as the appellants' parole had been cancelled. However, the court did not alter the decision regarding the cancellation of parole, as it was satisfied that the decision was based on appropriate considerations. The court further noted that the appellants had already served a significant amount of pre-sentence detention, which should be taken into account in the re-sentencing process.

The High Court ordered that the appellants be re-sentenced by the lower court, taking into account the principles of sentencing and the specific circumstances of the case. The court did not specify the exact nature of the new sentences but emphasised the importance of adhering to the principles of totality, proportionality, and parity in the re-sentencing process.

Orders