R v Ly

Case [2004] VSCA 45 2 April 2004

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 234 of 2002

THE QUEEN
v.
MINH GIA LY THE QUEEN v. NGUYEN TAT THE QUEEN v. KHUONG DUY DAO
	No. 355 of 2002 No. 233 of 2002

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JUDGES:	VINCENT, J.A. SMITH and COLDREY, A.JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 March 2004
DATE OF JUDGMENT:	2 April 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 45

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Criminal law – Sentence – Affray and intentionally cause serious injury – Insufficient discount for guilty pleas – Manner of cumulation of sentences for affray and intentionally cause serious injury resulted in double punishment – Appellants re-sentenced.

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APPEARANCES:

Counsel

Solicitors

For the Crown

Ms C.M. Quin

K. Robertson, Solicitor for Public Prosecutions

For the Appellant Ly

For the Appellant Tat

For the Appellant Dao

Mr L. Carter

Mr P.G. Priest, Q.C.
Mr D.A. Dann

Mr M.J. Croucher

Lewenberg & Lewenberg

Stan Waites

Lewenberg & Lewenberg

VINCENT, J.A.:

I agree in the disposition of these appeals as proposed by Coldrey, A.J.A. I do so for the reasons advanced by him in his judgment.

SMITH, A.J.A.:

I agree with the reasons of Coldrey, A.J.A. and the orders he proposes.

COLDREY, A.J.A.:

On 6 December 2002, at the Melbourne County Court, the appellants Ming Gai Ly (Ly), Nguyen Tat (Tat) and Khuong Duy Dao (Dao) each pleaded guilty to one count of affray (Count 1). Additionally, Ly and Tat pleaded guilty to two counts of intentionally causing serious injury (Counts 2 and 3) and Dao pleaded guilty to one count of intentionally causing serious injury (Count 4). At the time of the commission of these offences, the appellant Ly was aged 27 whilst Tat and Dao were each aged 24 years. At the time of sentencing their ages were 28, 26 and 25 years respectively.

The sentencing itself occurred on 12 December 2002 when the appellants were sentenced as follows. Ly was sentenced to 3 years' imprisonment on the count of affray and on the two counts of intentionally causing serious injury, imprisonment for 3 years and 6 years respectively. The sentencing judge directed that 2 years of the sentence imposed on Count 2 and 3 years of the sentence imposed on Count 3 should be served cumulatively on Count 1, producing a total effective sentence of 8 years' imprisonment. The sentencing judge fixed a minimum period of 6 years before the appellant was eligible for release on parole. Pre-sentence detention of 11 days was declared pursuant to s.18 of the Sentencing Act 1991 (the Act). The appellant Tat was also sentenced to 3 years' imprisonment for affray and to 4 years' and 7 years' imprisonment respectively on Counts 2 and 3 being the counts of intentionally causing serious injury. The sentencing judge directed that 2 years of the sentence

imposed on Count 2 and 4 years of the sentence imposed on Count 3 should be served cumulatively on Count 1, producing a total effective sentence of 9 years' imprisonment. The sentencing judge fixed a minimum…

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 Ly

Details

AGLC: R v Ly [2004] VSCA 45
Case: [2004] VSCA 45
Decision Date: 2 April 2004

CaseChat Overview and Summary

In the case of R v Ly, the appellants were convicted of multiple offences, including affray and intentionally causing serious injury. The matter was heard in the Court of Appeal, which was tasked with assessing the appropriateness of the sentences imposed. The primary issue before the court was whether the sentences meted out were just and whether the appellants received sufficient credit for their guilty pleas. A further concern was the manner in which the sentences for the two separate offences were cumulated, potentially resulting in double punishment.

The court examined the principle of double punishment, which occurs when a sentence for one offence inadvertently punishes the defendant for another offence. In this instance, the court found that the sentences for the affray and the intentionally causing serious injury were not properly separated, leading to an increased penalty than intended. Additionally, the court considered whether the discount for the guilty pleas was adequate, finding it insufficient in light of the appellants' early admissions of guilt. The court held that the appellants should have received a more substantial discount for their pleas, which would have significantly impacted the final sentence.

As a result of the court's findings, the sentences were deemed to be incorrect on both grounds. The court ordered a re-sentencing of the appellants, ensuring that the sentences for the separate offences were properly separated and that a fair discount for the guilty pleas was applied. The court's decision emphasised the importance of correctly applying sentencing principles to avoid double punishment and to appropriately reward early admissions of guilt. The appellants were re-sentenced in accordance with the court's directions.

Orders