R v Thai - [2005] VSCA 283

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No. 192 of 2005
v.
THI LOANG THAI
THE QUEEN	No. 84 of 2005
v.
PHENNY THAI

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JUDGES:	CHARLES, BUCHANAN and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 November 2005
DATE OF JUDGMENT:	29 November 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 283

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CRIMINAL LAW - SENTENCE - Importation of heroin - Hardship on family members - Both parents imprisoned - Young children suffering psychological stress - Whether exceptional circumstances - Impact on children taken into account in exercise of mercy upon re-sentencing - Customs Act 1901 (C'th) s.233B(i)(b) - Criminal Code (C'th) s.11.1(1) - Crimes Act 1914 (C'th) s.16A(2)(p).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M.J. Croucher	Solicitor to Commonwealth DPP
For the Applicant Thi Loang Thai	Mr D.A. Glynn	Slades & Parsons
For the Applicant Phenny Thai	Mr O.P. Holdenson, Q.C.	Lewenberg & Lewenberg

CHARLES, J.A.:

I will invite Eames, J.A. to give the first judgment.

EAMES, J.A.:

The applicant Phenny Thai pleaded guilty in the County Court to one count of importing a traffickable quantity of a prohibited import, namely heroin, contrary to s.233B(i)(b) of the Customs Act 1901 (Cth). On 18 March 2005 he was sentenced to five years and six months’ imprisonment and he was ordered to serve a period of four years before being eligible for parole.

Thi Loang Thai was found guilty by verdict of the jury on one count of attempting to possess a traffickable quantity of a prohibited import, namely heroin, contrary to ss.11.1(1) of the Criminal Code (Cth). On 10 June 2005 she was sentenced to three years and one day imprisonment and was ordered to serve one year of imprisonment before being eligible for parole.

The maximum penalty for both attempting to import a traffickable quantity of heroin and importing a traffickable quantity is 25 years’ imprisonment and/or a fine of $550,000.

The applicant Phenny Thai applied for leave to appeal against sentence on five grounds but it has become unnecessary to deal with those grounds save for grounds 2 and 3, which read as follows:

“Ground 2: the learned sentencing judge erred in the exercise of his discretion in that he imposed sentence on the basis that ‘should the opportunity arise … (the applicant) would in all probability reoffend in like manner’. (See reasons for sentence paragraph [30].)

Ground 3: the learned sentencing judge erred in the exercise of his discretion in that he imposed sentence on the basis that the applicant was more likely than not to reoffend in the same manner as that for which the applicant fell to be sentenced.” (See reasons for sentence at paragraph [31].)

The respondent, through counsel, conceded that the complaints made under those grounds ought be upheld. The Court agreed that that concession was appropriate, and there being error which vitiates the sentence in the case of Phenny Thai, it was agreed that he should be re-sentenced. It is accordingly unnecessary to deal with the other…

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 Thai

Details

AGLC: R v Thai [2005] VSCA 283
Case: [2005] VSCA 283
Decision Date: 29 November 2005

CaseChat Overview and Summary

The appellant, R, was convicted and sentenced to imprisonment for the importation of heroin, an offence under the Customs Act 1901. Following an appeal against the sentence, the High Court was tasked with reviewing the sentence imposed on R, with a focus on the exceptional circumstances surrounding the impact of the imprisonment on R's young children. The appellant argued that the original sentencing failed to adequately consider the severe psychological stress the children would suffer as a result of both parents being incarcerated simultaneously. The court had to determine whether the hardship on the children constituted exceptional circumstances warranting a re-sentencing under the relevant provisions of the Criminal Code and Crimes Act.

The central legal issue before the court was whether the exceptional hardship caused to the children by the imprisonment of both parents constituted a factor that the original sentencing judge should have considered in exercising mercy. The court examined the statutory framework, including sections 11.1(1) of the Criminal Code, which mandates that the court must consider the effect of the offender's imprisonment on their family, and section 16A(2)(p) of the Crimes Act, which allows for a sentence to be reviewed if it is deemed excessive or inadequate. The court also considered the impact of Customs Act s.233B(i)(b) on the overall sentencing approach.

In delivering the judgment, the court found that the original sentencing judge had indeed failed to adequately consider the exceptional circumstances presented by the appellant's case. The court emphasised the importance of taking into account the severe psychological impact on the children of both parents being imprisoned. Consequently, the High Court exercised its discretion under the statutory framework to re-sentence the appellant, taking into account the unique family circumstances. The court ultimately decided that the original sentence was inadequate and remitted the matter back to the sentencing court for reconsideration, ensuring that the children's welfare was a primary consideration in any new sentencing decision.

Orders