R v Taing - [2004] VSCA 46

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 336 of 2002

THE QUEEN

HUONG KIENG TAING

No. 346 of 2002

THE QUEEN

MINH GIA LY

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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 46

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Criminal law – Sentence – Trafficking in drug of dependence – Insufficient discount given for pleas of guilty – Appellants re-sentenced.

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APPEARANCES:

Counsel

Solicitors

For the Crown

Mr B. Young

Solicitor for Public Prosecutions (Commonwealth)

For the Appellant Taing

For the Appellant Ly

Mr O.P. Holdenson, Q.C.

Mr L. Carter

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 29 November 2002, Huong Kieng Taing (Taing) and Minh Gai Ly (Ly) pleaded guilty at the County Court at Melbourne to a charge of trafficking in a drug of dependence, namely Diacetylmorphine (heroin). The offence was committed between 14 August 2000 and 3 October 2000. On 17 December 2002, Taing was sentenced to a term of 8 years' imprisonment. A non-parole period of 6 years was fixed and pre-sentence detention, calculated pursuant to s.18 of the Sentencing Act 1991 (the Act), was reckoned at 44 days. On the same date Ly was sentenced to 7 years' imprisonment. Two years of that sentence was ordered to be served cumulatively on a sentence of 8 years imposed by his Honour Judge Neesham on 12 December 2002. A new parole period was fixed at 8 years to commence on that day and the period of pre-sentence detention was reckoned to be 50 days. Two other persons involved in the trafficking also pleaded guilty and were sentenced on that occasion.

The maximum penalty for the offence of trafficking is 15 years.

The appellant Taing, who was aged 41 at the time of this offence, had no prior convictions. The appellant Ly who was aged 26 at the time of offending admitted seven previous convictions, the most serious of which were recklessly causing serious injury, for which he was fined $1,000 in January 1998 and, three counts of trafficking heroin in April 1998 for which he received an aggregate sentence of 4

months' imprisonment.

Taing and Ly have now appealed against the sentences imposed. In his original notice of application for leave to appeal, Taing listed the following grounds:

(1)That the learned sentencing judge erred in the exercise of her sentencing discretion in failing to have regard or sufficient regard to the applicant's early plea of guilty.
(2)That the learned sentencing judge erred in the exercise of her sentencing discretion in failing to have regard or sufficient regard to the applicant's prior convictions (sic).
(3)That the learned sentencing judge erred in the exercise of her sentencing…

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 Taing

Details

AGLC: R v Taing [2004] VSCA 46
Case: [2004] VSCA 46
Decision Date: 2 April 2004

CaseChat Overview and Summary

The case of R v Taing involved multiple appellants who were convicted of various charges relating to the trafficking of drugs of dependence. The matter was heard and determined by the Court of Appeal in Australia. The appellants, who had originally been sentenced in the lower court, appealed against their sentences on the basis that the sentencing judge had not adequately accounted for their pleas of guilty. The appeal specifically focused on whether the original sentences were excessive given the discounts that should have been applied for entering early pleas of guilty.

The central legal issue before the Court of Appeal was whether the sentencing judge had erred in law by not sufficiently reducing the sentences for the appellants' pleas of guilty. The appellants argued that the original sentences imposed were too severe and did not reflect the appropriate discount that should have been applied for their early pleas of guilty. The court was tasked with determining whether the original sentences were appropriate in light of the appellants' admissions of guilt and whether the sentencing judge had correctly applied the principles governing the discount for pleas of guilty.

The Court of Appeal found that the sentencing judge had indeed erred in law by not sufficiently reducing the sentences for the appellants' pleas of guilty. The court held that the original sentences imposed were excessive and did not appropriately reflect the discount that should have been applied for the appellants' early pleas. The Court of Appeal emphasised the importance of correctly applying the principles of discount for pleas of guilty and noted that the original sentences did not adequately reflect the appropriate discount. As a result, the court varied the sentences and re-sentenced the appellants to reflect the correct discount for their pleas of guilty. The Court of Appeal determined that the appropriate sentences should have been less severe, taking into account the appellants' early admissions of guilt.

Orders