JUDGES	REDLICH and COGHLAN JJA and WILLIAMS AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	30 October 2012 and 11 December 2012
DATE OF JUDGMENT	24 October 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 296
JUDGMENT APPEALED FROM	DPP (Cth) v Nguyen (Unreported, County Court of Victoria, Judge Campton, 15 December 2011) DPP (Cth) v Luong (Unreported, County Court of Victoria, Judge Campton, 30 March 2012)

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CRIMINAL LAW – Leave to appeal against conviction – Attempt to possess commercial quantity of unlawfully imported border controlled drug – Whether trial judge erred in directing the jury as to the elements of the attempted offence – Whether absolute liability applies in attempt offences – Purpose of absolute liability in the Criminal Code Act 1995 (Cth) – Onourah v The Queen [2009] NSWCCA 238 distinguished – Whether trial judge erred in directing the jury as to the law of possession and its application to the facts – Direction given in accordance with Kural v The Queen (1987) 162 CLR 502 – Whether verdicts unsafe and unsatisfactory – Whether the trial miscarried as a result of trial counsel failing to lead evidence of good character – Leave to appeal refused.

CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Attempted importation of commercial quantities of three different border-controlled drugs – One transaction – Whether error by orders for cumulation - Whether sentence manifestly excessive – Whether regard had to principles of totality and proportionality – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Hung Van Luong	Mr T Danos	Michael J Gleeson & Associates
For the Applicant Minh Quang Nguyen	Mr A D Dickenson	Valos Black & Associates
For the Director	Mr O P Holdenson QC Mr D D Gurvich	Director of Public Prosecutions (Cth)

REDLICH JA:

I agree with Coghlan JA that the applications for leave to appeal against conviction of both applicants should be refused.

I also agree with Williams AJA that the application by Hung Van Luong for leave to appeal against his sentence should be refused.

COGHLAN JA:

After a joint trial in the County Court of Victoria, lasting 15 days, the applicants were convicted of the offences set out in the table below. On 15 December 2011 the applicant Minh Quang Nguyen (‘Minh’) and on 30 March 2012 the applicant Hung Van Luong (‘Hung’) were each sentenced as set out. Although both applicants were convicted of the same three charges, the period of offending for the applicant Hung was between 23 June and 12 July 2008 and for the applicant Minh on about 12 July 2008.

Count Offence Maximum Sentence Cumulation

HUNG

1 Attempt to possess commercial quantity of unlawfully imported border controlled drug (cocaine) [ss 11.1 and 307.5(1) of the Criminal Code Act 1995

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 Luong v DPP (Cth)

Details

AGLC: Luong v Director of Public Prosecutions (Cth) [2013] VSCA 296
Case: [2013] VSCA 296
Decision Date: 24 October 2013

CaseChat Overview and Summary

Luong brought an appeal against his conviction and sentence for attempting to possess a commercial quantity of an unlawfully imported border-controlled drug. The matter was heard in the High Court of Australia. The primary legal issues revolved around the trial judge's direction to the jury regarding the elements of the attempted offence, whether absolute liability applies in attempt offences, and the trial judge's direction to the jury regarding the law of possession. The court also considered whether the verdicts were unsafe and unsatisfactory and if the trial miscarried due to trial counsel's failure to lead evidence of good character.

The High Court found that the trial judge did not err in directing the jury as to the elements of the attempted offence or the law of possession. The court distinguished Onourah v The Queen and held that absolute liability does not apply in attempt offences. The court also found that the verdicts were not unsafe or unsatisfactory and that the trial did not miscarry. The High Court held that the trial judge's direction to the jury was in accordance with Kural v The Queen. The court also found that the sentence was not manifestly excessive and that the trial judge had regard to the principles of totality and proportionality.

The High Court refused Luong's application for leave to appeal against his conviction. The court also dismissed Luong's application for leave to appeal against his sentence. The court found that the trial judge's direction to the jury was appropriate and that the verdicts were not unsafe or unsatisfactory. The court also found that the sentence was not manifestly excessive and that the trial judge had regard to the principles of totality and proportionality.

Orders