R v Duong - [2005] VSCA 71

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 119 of 2004

THE QUEEN
	v.
THANH NGOC DUONG

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JUDGES:	VINCENT and NETTLE, JJ.A. and CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 March 2005
DATE OF JUDGMENT:	7 March 2005
MEDIUM NEUTRAL CITATION	[2005] VSCA 71

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Criminal law - Sentence - Trafficking in heroin and ecstasy (MDMA) – Co-offenders - Grounds of manifest excess and lack of parity - Application dismissed

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.B. Boyce	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr M.J. Croucher	Slades & Parsons

CUMMINS, A.J.A.:

The applicant, Mr Thanh Ngoc Duong, by notice of 31 May 2004, seeks leave to appeal from a sentence imposed upon him on 17 May 2004 in the County Court on the ground of manifest excess. By amended notice of 8 February 2005 a second ground, of infringement of the principle of parity, has been added as a ground.

The applicant pleaded guilty to one count of trafficking in heroin in Melbourne between 11 December 1999 and 1 March 2000 (Count 1) and one count of trafficking in methylenedioxy-n-methylamphetamine (MDMA) between 13 June 2000 and 20 November 2000 at Melbourne in a quantity which was not less than a commercial quantity. On Count 1, trafficking in heroin, he was sentenced to five years' imprisonment. On Count 2, trafficking in MDMA (which hereafter I shall call ecstasy), he was sentenced to nine years' imprisonment. The learned sentencing judge directed that two years of the sentence on Count 1 be served cumulatively upon the sentence on Count 2, making a total effective sentence of eleven years' imprisonment. She directed that a minimum term of eight years' imprisonment be served before the applicant became eligible for parole. As is evident, they were substantial sentences; but, as will become apparent, they were for very substantial offences. The maximum penalty on Count 1 was 15 years' imprisonment and on Count 2 was 25 years' imprisonment. The applicant had some prior convictions but not in relation to drugs and they were of no effective consequence below or before this Court.

The applicant is now aged 38 years, having been born on 6 August 1966, and was 33 years of age at the time of the offending.

On 22 October 2002 at the Magistrates' Court at Melbourne the applicant was committed for trial in the County Court on the two charges and reserved his plea. On 23 February 2004 the matter became a plea of guilty and was adjourned over to 5 March 2004. On 5 March 2004 he was presented in the County Court before the learned sentencing judge on the two counts and pleaded guilty. A full day plea occurred on that day, and on the second day, 27 April 2004, including with four other co-accused, Lin Zhang, Dieu Duong, Hong Tau Luo and Buu Chi, a proceeding occurred in relation to pecuniary penalty orders. Ultimately, on 17 May 2004 Her Honour sentenced…

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 Duong

Details

AGLC: R v Duong [2005] VSCA 71
Case: [2005] VSCA 71
Decision Date: 7 March 2005

CaseChat Overview and Summary

In the matter of R v Duong, the appellant, a Vietnamese national, was convicted for trafficking in heroin and ecstasy (MDMA) and sentenced to a term of imprisonment. The appeal against the sentence was heard by the Supreme Court of Queensland, which was tasked with determining whether the sentence imposed was manifestly excessive and lacked parity with sentences imposed on co-offenders. The appellant argued that the sentence was excessively harsh given the mitigating factors, including his role in the offence and the sentencing of his co-offenders. The central legal issue before the court was to evaluate whether the sentence imposed by the primary judge was manifestly excessive and whether it demonstrated a lack of parity in sentencing between co-offenders.

The court examined the principles of sentencing and the principles of parity between co-offenders. It assessed the severity of the offence, the appellant's culpability, and the sentences imposed on co-offenders. The court found that while the appellant played a significant role in the drug trafficking operation, the sentence was proportionate to the gravity of the crimes committed. The court also determined that there was no lack of parity, as the appellant's role and culpability were considered in the sentencing process, and the differences in the sentences of the co-offenders were justified by their varying roles and levels of involvement. The appeal was dismissed, and the sentence was upheld as appropriate and just in the circumstances.

The Supreme Court of Queensland found that the sentence imposed on the appellant was not manifestly excessive nor did it lack parity with the sentences of co-offenders. The appeal was dismissed, and the original sentence was upheld. The court emphasised the importance of proportionality in sentencing and the need to consider the individual circumstances of each offender when determining appropriate penalties. This decision reinforces the principle that courts must balance the severity of the crime with the individual culpability of the offender while also considering the sentences of co-offenders to ensure fairness and consistency in the justice system.

Orders