Quoc Viet LAI v The Queen - [2011] NSWCCA 16

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Quoc Viet LAI v R [2011] NSWCCA 16
Hearing dates: 24 September 2010
Decision date: 16 February 2011
Before: McClellan CJ at CL
Latham J
Price J
Decision:
Leave to appeal granted
Appeal dismissed

Catchwords: CRIMINAL LAW - Commonwealth offence - dealing in an instrument of crime - appeal against sentence - parity between co-offenders - grounds for discrimination between co-offenders - whether Judge erred in making finds beyond reasonable doubt about applicant's knowledge for the purposes of sentence - whether error in ratio between head sentence and non-parole period - whether Judge erred in assessing applicant's prospects of rehabilitation.
Legislation Cited: Criminal Code 1995 (Cth)
Crimes Act 1914 (Cth)
Financial Transaction Reports Act 1998 (Cth)
Cases Cited: Hili v The Queen; Jones v The Queen [2010] HCA 45
Category: Principal judgment
Parties: Quoc Viet LAI - (Applicant)
Regina - (Respondent)
Representation: Counsel:
J Hickleton - (Applicant)
L Crowley - (Respondent)
Solicitors:
M Sten - (Applicant)
J Purches - (Respondent)

File Number(s): 2008/00014834
Decision under appeal

Date of Decision:

2011-02-16 00:00:00

Before:

Ainslie-Wallace DCJ

File Number(s):

2008/00014834

Judgment

McCLELLAN CJ at CL : I agree with Latham J.

LATHAM J : The applicant seeks leave to appeal against a sentence imposed by Ainslie-Wallace DCJ (the Judge) for an offence of dealing in an instrument of crime, being money in excess of $1 million, pursuant to s 400.3(2) of the Criminal Code 1995 (Cth), following the applicant's conviction after trial.

The offence carries a maximum penalty of 12 years imprisonment. The applicant was sentenced to 9 years and 6 months imprisonment, including a non parole period of 7 years.

The grounds of appeal take issue with certain of the Judge's findings of fact, complain of a lack of parity with a co-offender, Van Dang Tran (Dang), assert that the relationship between the non parole period and the head sentence is not justified by the applicant's criminality, and that the sentence is manifestly excessive.

The following excerpt from the Judge's remarks on sentence represents a useful summary of the offence :-

The offender was a senior pilot with Vietnam Airlines. As part of his duties he regularly flew planes from Vietnam to Australia. Through the influence of another pilot with Vietnam Airlines called Dang he was introduced to two people who owned and operated the Long Thanh Money Transfer Company, Thanh Huynh (who is referred to as Hang) her husband and her brother Tan.

The Long Thanh Money Transfer Company operated out of business premises in Melbourne and Sydney. A relative of Hang was in charge of the business in Cabramatta in Sydney. Hang and her husband operated the Melbourne branch. Hang's brother, Tan Ba Huynh called Tan, was in charge of the business operated out of Saigon. The ostensible business of the Long Thanh Money Transfer Company was to remit money from Australia to Vietnam.

In the period 25 June 2005 and 30 May 2006 the offender became part…

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: [2011] NSWCCA 16
Decision Date: 16 February 2011

CaseChat Overview and Summary

Quoc Viet Lai appealed against his sentence for dealing in an instrument of crime, arguing that the Judge had erred in several respects. The dispute centred on the parity between co-offenders, the grounds for discrimination in sentencing, and the ratio between the head sentence and the non-parole period. The appeal was heard in the High Court of Australia.

The primary legal issues were whether the Judge erred by making findings beyond reasonable doubt about the applicant's knowledge for the purposes of sentence, whether there was an error in the ratio between the head sentence and the non-parole period, and if the Judge erred in assessing the applicant's prospects of rehabilitation. The court had to consider the principles of sentencing and the appropriate weight to be given to the factors identified by the applicant.

The court found that the Judge did not err in making findings beyond reasonable doubt about the applicant's knowledge, as it was appropriate to consider the applicant's level of involvement and knowledge in sentencing. The court also found that the ratio between the head sentence and the non-parole period was not manifestly excessive. Regarding the assessment of the applicant's prospects of rehabilitation, the court found that the Judge did not err in considering the applicant's prospects of rehabilitation, as it was a relevant factor in sentencing. The appeal was dismissed.

The final orders were that the appeal against sentence was dismissed, and the original sentence was upheld. The court emphasised the importance of considering all relevant factors in sentencing, including the level of involvement and knowledge of the offender, the ratio between the head sentence and the non-parole period, and the offender's prospects of rehabilitation.

Orders