R v Con Chi Huynh - [2004] VSCA 128

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

---

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

---

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).

---

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.

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 R v Con Chi Huynh

Details

AGLC: R v Con Chi Huynh [2004] VSCA 128
Case: [2004] VSCA 128
Decision Date: 5 August 2004

CaseChat Overview and Summary

In the case of R v Con Chi Huynh, the defendant was charged with trafficking in heroin in a quantity that was not less than commercial. The matter was heard in the relevant Australian court. The dispute centred around the volume of drugs trafficked and the profits made, as well as the sentencing considerations that should be applied given the defendant's personal circumstances, including his gambling addiction and status as a youthful offender.

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