SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0057
| SEHWHY NIPOE | Applicant |
| v | |
| THE QUEEN | Respondent |
| S APCR 2018 0257 | |
| SAM TEAH | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, NIALL and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 7 February 2020 |
| DATE OF JUDGMENT: | 29 May 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 137 |
| JUDGMENT APPEALED FROM: | DPP v Nipoe [2018] VCC 1854 (Judge Hogan) DPP v Teah [2018] VCC 153 (Judge Cohen) |
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ELECTION TO RENEW APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY THE COURT OF APPEAL PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Appeal – Sentence – Parity – Attempt to possess border controlled drug (2 charges: charge 1 – marketable quantity, charge 2 – commercial quantity) – Sentenced to 8 years on charge 1, 9 years on charge 2 – Total effective sentence 15 years, non-parole period 11 years – Whether manifestly excessive – Whether sentence on charge 2 insufficiently differentiated applicant from co-offender – Whether sentence on charge 1 impermissibly took into account s 6AAA declaration in relation to co-offender – Error conceded – Whether different sentence should be imposed – Leave granted – Appeal dismissed.
CRIMINAL LAW – Appeal – Sentence – Parity – Attempt to possess marketable quantity of border controlled drug – Plea of guilty - Sentenced to 6 years and 6 months’ imprisonment, non-parole period of 3 years and 10 months – Co-offender pleaded not guilty – Sentenced to 8 years’ imprisonment – Whether insufficient differentiation in sentence – Serious offending – Late plea of guilty – No greater differential required – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant Nipoe | Ms G F Connelly | Ann Valos Criminal Law |
| For the Applicant Teah | Mr P J Smallwood | Giorgianni & Liang Lawyers |
| For the Respondent | Ms K Breckweg | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
NIALL JA
EMERTON JA:
Introduction
These two applications for leave to appeal against sentence are interrelated. The sentences flowed from convictions arising from two drug importations. The first importation involved both applicants (Sam Teah and Sehwhy Nipoe), along with a third man, Wilson Dahn (Teah’s nephew); the second importation involved Nipoe along with two co-offenders, Augustus Robinson and Raheem Kromah.
On 23 February 2018, Teah was sentenced by Judge Cohen to a term of imprisonment of 6 years and 6 months on a plea of guilty to a single charge of attempting to possess a marketable quantity of a border controlled drug, methamphetamine. A non-parole period of 3 years and 10 months was set.
On 8 November 2018, Nipoe was sentenced by Judge Hogan for two charges of attempting to possess a border controlled drug, methamphetamine. Charge 1 (attempting to possess a marketable quantity) concerned the importation in which Teah was also involved. Nipoe pleaded not guilty and was sentenced to 8 years’ imprisonment on that charge.
Teah complains that, when compared to the sentence imposed on Nipoe for the…
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- AGLC
- Nipoe v The Queen [2020] VSCA 137
- Case
- [2020] VSCA 137
- Decision Date
CaseChat Overview and Summary
The High Court examined the principle of parity in sentencing, which requires that sentences for similar crimes be comparable. The court held that the applicant's total effective sentence of 15 years, with a non-parole period of 11 years, was not manifestly excessive. While there was a difference in the sentences between the applicant and his co-offender, the court found that the disparity did not render the applicant's sentence unjust. Furthermore, the court rejected the argument that the sentence on charge 1 should not have considered the co-offender's section 6AAA declaration, as it was a relevant factor in assessing the seriousness of the offence. Consequently, the High Court dismissed the appeal, affirming the original sentencing decisions.
The High Court's decision underscores the importance of maintaining a balance in sentencing that considers both the individual circumstances of the offender and the broader principle of parity. The court's ruling emphasised that while sentences should be comparable for similar offences, significant differences in sentences can be justified based on the unique aspects of each case. This decision reinforces the judiciary's role in ensuring that sentences are fair and proportionate, taking into account all relevant factors, including the role of each offender in the criminal activity.
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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