Ly v The Queen - [2012] VSCA 24

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0767

QUANG HA LY	Appellant
	v
THE QUEEN	Respondent

---

JUDGES	WEINBERG JA and CAVANOUGH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	31 January 2012
DATE OF JUDGMENT	29 February 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 24
JUDGMENT APPEALED FROM	R v Ly (Unreported, County Court of Victoria, Judge Wood, 13 August 2009)

---

CRIMINAL LAW – Sentence – Appellant pleaded guilty to trafficking heroin (count 2) – Convicted at trial of trafficking large commercial quantity heroin (count 1) and dealing with proceeds of crime (count 3) – Total effective sentence 12 years with non-parole period of nine years – Crown concession that judge erred in sentencing appellant as ‘serious drug offender’ on count 1 – Accordingly no obligation to treat protection of community as principal purpose for sentence – Appeal allowed – Resentenced on counts 1 and 2 – Total effective sentence 10 years with non-parole period of seven years.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D Grace QC	Theo Magazis
For the Respondent	Mr B Sonnett	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

The appellant, Quang Ha Ly, pleaded guilty in the County Court at Melbourne to one count of trafficking heroin (count 2), but not guilty to trafficking a large commercial quantity of that drug (count 1). He also pleaded not guilty to one count of knowingly dealing with the proceeds of crime (count 3).

Following a trial that lasted some six weeks, the appellant was convicted on both counts. He was sentenced, in August 2009, as follows:

Count on Presentment Offence Maximum Sentence Cumulation

1 (Convicted by jury)
Trafficking in a large commercial quantity of a drug of dependence (diacetylmorphine)

Life imprisonment
12 years Base

2 (Guilty Plea Entered)
Trafficking in a drug of dependence (diacetylmorphine)

15 years
4 years None

3 (Convicted by jury)
Dealing with the proceeds of crime

15 years
4 years None

That made a total effective sentence of 12 years’ imprisonment. A non-parole period of nine years was fixed.

Late last year, Nettle JA granted leave to appeal against sentence on two grounds, as follows:

1.The exercise of the sentencing discretion in relation to count 1 was vitiated by the Learned Sentencing Judge erring in classifying the [appellant] as a serious drug offender and thereby being bound by s 6D of the Sentencing Act 1991 that requires that in determining the length of the sentence the Court must regard the protection of the community as the principal purpose for which the sentence is imposed.
2.Each of the sentences imposed on the [appellant] was manifestly excessive in all of the circumstances of the offence and of the [appellant].

The Crown conceded before Nettle JA, and before this Court, that ground 1 was made out. It also conceded that, accordingly, ground 2 was also made out. Indeed, in its written submissions, the Crown went further and identified two additional errors in the sentencing judge’s remarks, that the appellant had…

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 Ly v The Queen

Details

AGLC: Ly v The Queen [2012] VSCA 24
Case: [2012] VSCA 24
Decision Date: 29 February 2012

CaseChat Overview and Summary

In the case of Ly v The Queen, the appellant was convicted on three counts: trafficking heroin (count 2), trafficking a large commercial quantity of heroin (count 1), and dealing with the proceeds of crime (count 3). The total effective sentence imposed by the court was 12 years, with a non-parole period of nine years. The appellant appealed the sentence on the basis that the judge had erred in classifying him as a'serious drug offender' for count 1 and thus did not need to treat the protection of the community as the principal purpose of the sentence. The court agreed with the appellant's argument.

The legal issue before the court was whether the trial judge had erred in sentencing the appellant as a'serious drug offender' and, if so, what the appropriate sentence should be. The court examined the relevant sentencing principles and authorities, including the decision in Viro v The Queen, and determined that the trial judge had indeed erred in classifying the appellant as a 'serious drug offender' for count 1. The court also considered the totality principle and the need for the sentence to reflect the appellant's culpability and the need to protect the community.

The court allowed the appeal and resentenced the appellant on counts 1 and 2, resulting in a total effective sentence of 10 years, with a non-parole period of seven years. The court acknowledged the appellant's guilty plea and the fact that he had not been previously convicted of an offence involving drugs. The court also considered the nature and circumstances of the offences, the appellant's role in the offences, and the need to deter the appellant and others from engaging in similar criminal conduct. The final orders of the court were that the appeal be allowed and the appellant be resentenced as indicated above.

Orders