SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0090
| HUNG VAN LUONG |
| Applicant |
| V |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| Respondent |
AND
S APCR 2012 0025
| MINH QUANG NGUYEN |
| Applicant |
| V |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| Respondent |
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| 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
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- AGLC
- Luong v Director of Public Prosecutions (Cth) [2013] VSCA 296
- Case
- [2013] VSCA 296
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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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