SUPREME COURT OF VICTORIA
COURT OF APPEAL
| THE QUEEN | |
| v. | |
| CON CHI HUYNH KIM NGOC TA LONG TAN PHAM THUY PHUONG NGO and BINH TAN PHAM | No. 203 of 2003 No. 205 of 2003 No. 206 of 2003 No. 207 of 2003 No. 210 of 2003 |
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JUDGES: | BATT, VINCENT and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 21 and 22 July 2004 | |
DATE OF JUDGMENT: | 5 August 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 128 | |
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CRIMINAL LAW – Sentence – Trafficking in heroin in not less than a commercial quantity – Trafficking heroin in less than commercial quantity – Findings of fact as to volume of drugs trafficked and profits made – Parity as between offenders for same and different offences – Gambling addiction – Non-parole period – Youthful offender – Drugs Poisons and Controlled Substances Act 1981, ss.71(1)(a) and (b).
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. with Dr S.B. McNicol | K. Robertson, Solicitor for Public Prosecutions |
| For C.C. Huynh | Mr M.J. Croucher | Haines & Polites |
| For K.N. Ta | Mr M.J. Croucher | Valos Black & Assoc. |
| For L.T. Pham | Mr O.P. Holdenson, Q.C. | Tony Hargreaves & Partners |
| For T.P. Ngo | Mr L. Carter | Lewenberg & Lewenberg |
| For B.T. Pham | Mr M. Kowalski | Koutsantoni & Assoc. |
BATT, J.A.:
I have had the benefit of reading the reasons for judgment of Eames, J.A. Except in the case of the application of Ta, I agree with the dispositions his Honour proposes and with his reasons.
As regards Ta, I am not persuaded that the difference or disparity in sentence between Huynh and Ngo on the one hand and Ta on the other is manifestly inadequate or such as to engender a justifiable sense of grievance. In my view, the difference of two years in the head sentence is adequate to reflect the different offence and the derivative nature of Ta’s business as well as the relatively minor fact that she was “seduced” into the trade by Ngo. I agree with Eames, J.A. that the sentence is not manifestly excessive. There were other grounds relied on for Ta, namely, that the sentencing judge failed to give any or sufficient weight to the plea of guilty, the delay and the applicant’s prospects of rehabilitation and gave too much weight to general deterrence having regard to the applicant’s personal circumstances. In view, however, of the seriousness of the offending, as demonstrated by Eames, J.A., general deterrence was the paramount sentencing consideration and the mitigatory factors relied on had, in substance, largely to yield to it. In essence, I consider that the sentencing judge’s sentence upon Ta places her in the appropriate relative position and at the appropriate distance from the other offenders in the calculus of penalties even after Ngo’s non-parole period is varied by this Court.
Accordingly, I would dismiss the application by Ta.
VINCENT, J.A.:
I agree with the disposition of these matters as proposed by Eames, J.A. for the reasons advanced by him in his judgment.
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- AGLC
- R v Con Chi Huynh [2004] VSCA 128
- Case
- [2004] VSCA 128
- Decision Date
CaseChat Overview and Summary
The legal issues that the court needed to address involved determining the appropriate sentence for the defendant, taking into account the specific findings of fact regarding the quantity of drugs trafficked and the profits made. The court also had to consider whether there was parity in sentencing between the defendant and others who had committed similar or different offences. Additionally, the court needed to weigh the mitigating factors, such as the defendant's gambling addiction and his youth, against the seriousness of the offence.
The court examined the statutory provisions under the Drugs Poisons and Controlled Substances Act 1981, specifically sections 71(1)(a) and (b), to establish the appropriate sentence. It assessed the facts of the case, including the volume of drugs involved and the profits made from the trafficking. The court took into account the defendant's personal circumstances, recognising his gambling addiction and his status as a youthful offender. After considering all these factors, the court determined the non-parole period and issued its ruling.
The court ordered that Con Chi Huynh be sentenced to a non-parole period, reflecting the seriousness of the offence but also taking into account the mitigating factors presented. The specific details of the sentence, including the total custodial term, were set out in the judgment.
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
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Ratio Decidendi
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