R v Ong

Case [2007] VSCA 206 28 September 2007

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)

VIET DUNG ONG

and

CHI NGUYEN

THE QUEEN

No 57 of 2006

VIET DUNG ONG

DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)
DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)	v
VIET DUNG ONG and
CHI NGUYEN

No 92 of 2006

No 93 of 2006

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JUDGES:	BUCHANAN and REDLICH JJA and KAYE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 August 2007
DATE OF JUDGMENT:	28 September 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 206

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Criminal law – Importing heroin – Aural identification – Warning to jury sufficient in circumstances of the case – Conspiracy – An overt act an element of the offence – Jury unanimously found at least one overt act – Undercover policeman party to agreement.

Criminal law – Sentence – Crown appeal – Importing heroin – Sentences of 15 years’ imprisonment with a minimum term of 11 years’ imprisonment imposed on a conspirator and a sentence of five years’ imprisonment with a minimum term of three years and six months’ imprisonment imposed on a recipient of imported heroin not manifestly inadequate.

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APPEARANCES:	Counsel	Solicitors
For the Director	Ms R E Carlin	The Commonwealth Director of Public Prosecutions
For the Respondent Ong	Mr G J Thomas SC with Mr G F Meredith	Victoria Legal Aid
For the Respondent Nguyen	Mr O P Holdenson QC with Mr T Kassimatis	Valos Black & Assocs

BUCHANAN JA:

After a trial in the County Court a jury found Viet Dung Ong and Chi Nguyen guilty of offences arising out of the importation into Australia of heroin. Ong was convicted on a count of conspiring to import into Australia a commercial quantity of heroin, contrary to the provisions of s 233B(1)(b) of the Customs Act 1901. Nguyen was convicted on a count of attempting to possess a prohibited import consisting of a commercial quantity of heroin, contrary to the provisions of s 233B(1)(c) of the Act.

After pleas were heard, Ong was sentenced to be imprisoned for a term of 15 years. A minimum term of 11 years was fixed. Nguyen was sentenced to be imprisoned for a term of five years with a minimum term of three years and six months.

Ong has sought leave to appeal against his conviction while the Commonwealth Director of Public Prosecutions has appealed against the sentences of Ong and Nguyen.

The Crown alleged that Ong’s co-conspirators were Krong Lommahadthai (‘Krong’), one Tom and undercover police officers of the Royal Thai Police Force designated as Jessie and Eddy. Krong, an inmate of a Thai jail, used mobile telephones to arrange the importation by communicating with his co-conspirators. The Crown alleged that Ong and Krong planned the importation in conversations over a period of some four months. Krong engaged Eddy to collect the heroin in Bangkok and transport it to Australia.

Thai and Australian police co-operated to bring the heroin to Melbourne by aeroplane. In Melbourne, Australian federal police officers substituted for the heroin a harmless substance resembling heroin. The…

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 Ong

Details

AGLC: R v Ong [2007] VSCA 206
Case: [2007] VSCA 206
Decision Date: 28 September 2007

CaseChat Overview and Summary

In the case of R v Ong, the respondent was convicted of multiple counts of conspiracy to import heroin and other related offences. The case was heard in the High Court of Australia. The primary dispute centred around the sufficiency of the trial judge's warning to the jury regarding the aural identification of the respondent by an undercover police officer who was also a party to the conspiracy. The Court was also tasked with considering the Crown's appeal against the sentences imposed on the respondent and a co-conspirator.

The legal issues before the Court included whether the trial judge’s warning to the jury was adequate in the circumstances, and if the sentences imposed were manifestly inadequate. Specifically, the Court had to determine whether the jury's unanimity on at least one overt act was sufficient to uphold the conspiracy conviction when one of the jurors may have relied on the identification of the respondent by the undercover police officer. Additionally, the Court examined whether the sentences for the offences of importing heroin and conspiracy were proportionate and justified under the circumstances.

The High Court found that the warning provided by the trial judge was sufficient to mitigate any potential prejudice arising from the undercover police officer’s identification. The Court held that the jury's unanimity on the presence of an overt act was a robust foundation for the conspiracy conviction, and the potential reliance on the police officer’s identification did not invalidate the verdict. Regarding the sentences, the Court concluded that the 15-year and five-year sentences, with their respective minimum terms, were not manifestly inadequate given the gravity of the offences and the respondent's criminal history.

The Court dismissed the appeal against sentence, affirming that the penalties imposed were within the range of acceptable outcomes for the serious nature of the crimes committed. The Court did not find the sentences to be manifestly inadequate or disproportionate to the offences, thereby upholding the original sentencing decisions made by the lower court.

Orders