Minh Phat Truong v The Queen - [2016] VSCA 228

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0066

MINH PHAT TRUONG	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 September 2016
DATE OF JUDGMENT:	21 September 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 228
JUDGMENT APPEALED FROM:	DPP v Minh Phat Truong (Unreported, County Court of Victoria, Judge Coish, 15 March 2016)

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CRIMINAL LAW – Sentence – Appeal – Money laundering – Applicant sentenced to a total effective sentence of 8 years and 6 months’ imprisonment with a non-parole period of 6 years – Whether disparity with sentence on co-offender – Whether sentence manifestly excessive – Appeal allowed – Resentenced to a total effective sentence of 6 years with a non-parole period of 4 years.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC	Galbally Rolfe
For the Crown	Mr L K Crowley	Commonwealth Director of Public Prosecutions

PRIEST JA:

Introduction

During February 2016, the applicant stood trial in the County Court on a Commonwealth indictment containing six ‘money laundering’ charges. The jury found him guilty of four charges of dealing in the proceeds of crime (charges 3, 4, 5 and 6), but acquitted him of two further charges (charges 1 and 2).

On 15 March 2016, the trial judge sentenced the applicant to a total effective sentence of eight years and six months’ imprisonment,[1] upon which the judge fixed a non-parole period of six years.
[1]By virtue of ss 19(1) to (4) of the Crimes Act 1914 (Cth), cumulation between sentences of imprisonment for federal offences is achieved by differential orders for the commencement of sentences. In practical effect, the sentence on charge 4 was the ‘base’ sentence; and six months of the sentence of imprisonment on charge 3, and 12 months of the sentence on each of charges 5 and 6, were ordered to be served cumulatively.

The details of the charges, convictions and sentences may conveniently be set out in tabular form:

Charge Offence Verdict Maximum Sentence

1 Dealing with proceeds of crime on 3 January 2012, contrary to s 400.5(1) of the Criminal Code (Cth) ($50,000 or more) Not guilty 15 years’ imprisonment —

2 Dealing with proceeds of crime on 9 January 2012, contrary to s 400.4(1) of the Criminal Code (Cth) ($100,000 or more) Not guilty 20 years’ imprisonment —

3 Dealing with proceeds of crime on 28 March 2012, contrary to s 400.5(1) of the Criminal Code (Cth) ($50,000 or more)[2] Guilty 15 years’ imprisonment 4 years, commencing 15 March 2016

4 Dealing with proceeds of crime between 29 March and 1 April 2012, contrary to s 400.4(1) of the Criminal Code (Cth) ($100,000 or more)[3] Guilty 20 years’ imprisonment 6 years, commencing 15 September 2018

5 Dealing with proceeds of crime on 15 May 2012, contrary to s 400.4(1) of the Criminal Code (Cth) ($100,000 or more) Guilty 20 years’ imprisonment 5 years and 6 months, commencing 15 September 2017

6 Dealing with proceeds of crime…

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: [2016] VSCA 228
Decision Date: 21 September 2016

CaseChat Overview and Summary

In the case of Minh Phat Truong v The Queen, the applicant appealed against his sentence for money laundering. The trial judge had sentenced Truong to a total effective sentence of 8 years and 6 months’ imprisonment, with a non-parole period of 6 years. The central issue in the appeal was whether the sentence imposed was manifestly excessive, particularly in light of the sentence given to a co-offender. Truong contended that there was a significant disparity between his sentence and that of his co-offender, which made his sentence manifestly excessive. The appeal hinged on whether the trial judge had adequately considered the principle of parity and the totality of the circumstances.

The court found that the trial judge had failed to give adequate consideration to the principle of parity when imposing the sentence. The court noted that while the trial judge had taken into account the disparity between the sentences of the applicant and his co-offender, they did not adequately explain why the disparity was justified. The court concluded that the sentence imposed on Truong was manifestly excessive, as it did not reflect the totality of the circumstances, including the lesser role of the applicant in the offence. Consequently, the appeal was allowed, and Truong was resentenced to a total effective sentence of 6 years with a non-parole period of 4 years.

The court emphasised the importance of considering the principle of parity in sentencing, particularly in cases where co-offenders are involved. The court also highlighted the need for the trial judge to provide clear reasons for any significant disparity in sentences. The court’s decision underscores the need for sentencing judges to carefully consider the totality of the circumstances, including the role of each offender, when imposing sentences.

The final orders of the court included the reduction of Truong's sentence to a total effective term of 6 years, with a non-parole period of 4 years. This resentencing reflects the court's view that the original sentence was manifestly excessive and did not adequately account for the principle of parity and the totality of the circumstances.

Orders