Nov Sinn v The Queen - [2014] VSCA 149

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0142

NOV SINN	Appellant
	v
THE QUEEN	Respondent

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JUDGES	NETTLE and REDLICH JJA and ALMOND AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	17 June 2014
DATE OF JUDGMENT	23 July 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 149
JUDGMENT APPEALED FROM	R v Sinn (Unreported, County Court of Victoria, Judge Chettle, 21 June 2013)

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CRIMINAL LAW – Sentence – Parity – Two charges of trafficking a commercial quantity of a drug of dependence (cannabis) – Parity – Whether total effective sentence of 5 years with a non-parole period of 3 years and 6 months relative to sentence imposed on a co-offender offended principle of parity – Teng v R (2009) 22 VR 706 723, DPP (Cth) v Peng [2014] VSCA 128, R v Wolfe [2008] VSCA 284 considered – Individual differences in personal circumstances did not explain minimal differentiation in sentence – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis	Valos Black & Associates
For the Respondent	Mr B F Kissane	Office of Public Prosecutions

NETTLE JA:

I agree with Almond AJA.

REDLICH JA:

I agree with Almond AJA.

ALMOND AJA:

Nov Sinn (’Sinn’) and his daughter Angela Sinn each pleaded guilty in the County Court to one charge of trafficking in a commercial quantity of a drug of dependence (cannabis L) contrary to s 71AA Drugs, Poisons and Controlled Substances Act 1981 (Vic). Sinn was sentenced on 28 June 2013 as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

2
Trafficking in a drug of dependence (commercial quantity) [Drugs, Poisons and Controlled Substances Act1981 (Vic) s 71AA]
25 years [Drugs, Poisons and Controlled Substances Act1981 (Vic) s 71AA]

5 years

N/A

Total Effective Sentence 5 years

Non-Parole Period: 3 years 6 months

Pre-sentence Detention Declared: 458 days

6AAA Statement: 6 years and 3 months with a non-parole period of 4 years and 9 months

Other orders:

· Forensic sample order pursuant to s 464ZFB(1) of the Crimes Act1958 (Vic)

· Disposal Order pursuant to s 77(1) of the Confiscation Act1997 (Vic)

· Forfeiture Order pursuant to s 33(1) of the Confiscation Act1997 (Vic)

Angela Sinn was sentenced to six years’ imprisonment with a non-parole period of four years. On 4 December 2013, Ashley JA granted the appellant leave to appeal on the ground that his sentence breached the parity principle.

Circumstances of the offending[1]

[1]The prosecution opening on the plea served as an agreed statement of facts which forms the basis of this summary; DPP v Chegne (Unreported, County Court of Victoria, Chettle J, 28 June 2013) (‘Reasons for Sentence’) [5].

During a six month investigation conducted during August 2011 to late March 2012, police identified eight residential premises located in suburbs south east of Melbourne, which were being used for the purpose of the cultivation of cannabis.

During this period, Sinn was observed –

(a)attending the premises, entering and remaining for periods varying between…

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 Nov Sinn v The Queen

Details

AGLC: Nov Sinn v The Queen [2014] VSCA 149
Case: [2014] VSCA 149
Decision Date: 23 July 2014

CaseChat Overview and Summary

In the matter of Nov Sinn versus The Queen, the appellant, Nov Sinn, sought to appeal the sentence imposed by the County Court of Victoria. Sinn was convicted on two counts of trafficking a commercial quantity of cannabis and was sentenced to a total effective term of 5 years imprisonment, with a non-parole period of 3 years and 6 months. The primary legal issue was whether the disparity in the sentence imposed on Sinn and his co-offender contravened the principle of parity as established in the cases of Teng v R and DPP (Cth) v Peng, among others. Sinn contended that the minimal difference in sentencing could not be justified by individual differences in personal circumstances.

The Court of Appeal examined the principle of parity, which requires that sentences imposed on co-offenders should be comparable unless individual differences justify a variation. The Court considered that the individual differences in personal circumstances of Sinn and his co-offender were insufficient to justify the minimal differentiation in their sentences. The Court noted that the principle of parity was intended to ensure that co-offenders are not sentenced in a manner that is manifestly disproportionate, and that this principle was not satisfied in this instance. As a result, the Court allowed Sinn's appeal and remitted the matter back to the County Court for resentencing. The Court emphasised that the resentencing should take into account the principle of parity and ensure that the sentences imposed on Sinn and his co-offender are commensurate with the principles of justice.

Orders