R v Diep; R v Vosinthavong - [2003] VSCA 203

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 335 of 2002

THE QUEEN

PHUC VAN DIEP

No. 319 of 2002

THE QUEEN

HORIZON VOSINTHAVONG

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JUDGES:	ORMISTON, BATT and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	12 and 13 November 2003
DATE OF JUDGMENT:	11 December 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 203	1^st Revision – 11 December 2003

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CRIME – Sentencing – Trafficking in heroin – Plea of guilty – Parity – Low level but continuous trafficking – Manifest excess – Pecuniary penalty orders – To be related to benefit received – Co-offenders not to be ordered to pay more than total benefit received – Equal division in absence of further evidence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S.E. Pullen Mr B.L. Sonnet	Ms K. Robertson, Solicitor for Public Prosecutions
For Diep	Mr J.P. Dickinson Mr J.J. Lavery	Victoria Legal Aid
For Vosinthavong	Mr G.F. Meredith	Rainer Martini & Assoc.

ORMISTON, J.A.:

The appellants (who for convenience sake will be called “Diep” and “Vosinthavong”) each pleaded guilty to one count of trafficking in a drug of dependence, namely diacetylmorphine, between 1 March 2001 and 2 June 2001. The appellant Diep also pleaded guilty to one count of having had diacetylmorphine in his possession on 1 June 2001 and likewise one count of having in his possession on the same day another drug of dependence namely cannabis L. In the case of the appellant Vosinthavong she was sentenced to be imprisoned for a period of 5½ years with a direction that she serve 3½ years before becoming eligible for parole. There was also an order for the payment of a pecuniary penalty of $15,000 pursuant to the Confiscation Act 1997. In the case of the appellant Diep he was sentenced to a term of 8 years’ imprisonment on count 1 and, with respect to the counts of possessing drugs of dependence, to 2 years’ imprisonment on the count relating to the possession of heroin and to a fine of $100 on the count relating to the possession of cannabis. His total effective sentence was therefore 8 years’ imprisonment and the judge fixed a minimum period of 6 years before the appellant was eligible for release on parole. In his case a pecuniary penalty order was made in the sum of $23,000.

Leave was granted to each appellant to appeal against these sentences. In the case of the appellant Vosinthavong there were three grounds of appeal. In the first place, it was said that the sentence was manifestly excessive; secondly, it was said that there was a failure to give sufficient weight to four factors, namely, the appellant’s age, lesser participation in the offence, her efforts at rehabilitation since June 2002 and her lack of significant prior convictions; and thirdly, that the judge failed to give sufficient disparity between the sentence imposed on Diep and on the appellant Vosinthavong. In the case of Diep there were some ten grounds but they may be summarised…

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: [2003] VSCA 203
Decision Date: 11 December 2003

CaseChat Overview and Summary

In the case of R v Diep; R v Vosinthavong, the High Court of Australia examined the sentencing of two individuals who had pleaded guilty to trafficking in heroin. The case arose from the concurrent appeals of both Diep and Vosinthavong, who were convicted for their roles in a drug trafficking operation. The primary legal issue before the court was whether the sentences imposed on the appellants were manifestly excessive, considering the principles of parity and proportionality in criminal sentencing. The court was also required to determine the appropriate quantum of pecuniary penalty orders, specifically whether these orders should be related to the benefit received from the criminal activity and whether co-offenders could be ordered to pay more than the total benefit received.

The High Court, in its judgment, noted the importance of adhering to the principles of parity and proportionality in sentencing. The court found that while the trafficking of heroin was a serious crime, the sentences imposed on Diep and Vosinthavong were not manifestly excessive, as they reflected the gravity of the offence and the need for deterrence. The court emphasised that pecuniary penalty orders should be proportionate to the benefit derived from the criminal activity and that in the absence of evidence indicating unequal division of benefits, the orders should be equally divided between co-offenders. The court concluded that the sentences and pecuniary penalty orders were appropriate and did not constitute a manifest excess.

As a result of the court's reasoning, the appeals were dismissed, and the original sentences and pecuniary penalty orders were upheld. The court's decision underscored the importance of considering the principles of parity and proportionality in sentencing, ensuring that penalties are commensurate with the seriousness of the offence and the benefits derived from the criminal activity. The final orders confirmed the sentences and pecuniary penalty orders as appropriate and in line with the legal standards set by the court.

Orders