Thi Nho Em Le v The Queen - [2015] VSCA 183

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0033

THI NHO EM LE	Appellant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 June 2015
DATE OF JUDGMENT:	21 July 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 183
JUDGMENT APPEALED FROM:	DPP v Le (Unreported, County Court of Victoria, Judge Taft, 22 August 2014)

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CRIMINAL LAW – Appeal – Sentence – Trafficking in a drug of dependence – Large commercial quantity – Sentence of 11 years' imprisonment with non-parole period of 8 years – Parity – Whether sentence infringed principles of parity in relation to sentences imposed on 2 other offenders – Parity reasoning requiring modification in respect of 1 of 2 other offenders who was not a co-offender of the appellant – Insufficient disparity between the appellant's sentence and those of the 2 other offenders so as to give the appearance justice has not been done – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M D Stanton	Spicer Lawyers
For the Respondent	Ms F Dalziel	Ms V Anscombe, Acting Solicitor for Public Prosecutions

REDLICH JA
BEACH JA:

Introduction

The appellant, Thi Nho Em Le (referred to as ‘Chi Tu’), Khi Sin Mong (referred to as ‘Mong’), Thanh Hai Pham (referred to as ‘Hai’) and Thi Nho Le (referred to as ‘Chi Ba’) were each involved in trafficking heroin. They were arrested on 12 August 2010 after a nine-month police investigation into their activities.

The appellant, Mong, Hai and Chi Ba are all members of the same family. Mong is the de facto partner of the appellant. Chi Ba is the appellant’s older sister, and Hai is Chi Ba’s husband.

On 22 November 2013, the appellant pleaded guilty in the County Court to one charge of trafficking in a drug of dependence (heroin) in a quantity not less than the large commercial quantity applicable to that drug. Following a plea on 13 and 19 March 2014, the appellant was sentenced on 22 August 2014 as follows:

Charge on Indictment Offence Maximum Sentence

1 Trafficking in a drug of dependence — large commercial quantity [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71] Life imprisonment [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71] 11 years

Total Effective Sentence: 11 years’ imprisonment

Non-Parole Period: 8 years

Pre-sentence Detention Declared: 1471 days

6AAA Statement: 14 years and 6 months with a non-parole period of 11 years and 6 months

Other orders: Disposal and forfeiture orders, forensic sample order

On 17 April 2013, Mong pleaded guilty in the County Court to one charge of trafficking in a drug of dependence (heroin) in a quantity not less than the large commercial quantity applicable to that drug. On 22 November 2013, Mong was sentenced as follows:

Charge on Indictment Offence Maximum Sentence

1 Trafficking in a drug of dependence — large commercial quantity [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71] Life imprisonment [

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 Thi Nho Em Le v The Queen

Details

AGLC: Thi Nho Em Le v The Queen [2015] VSCA 183
Case: [2015] VSCA 183
Decision Date: 21 July 2015

CaseChat Overview and Summary

The appellant, Thi Nho Em Le, appealed against her sentence for trafficking in a drug of dependence. The appeal centred on the issue of parity, specifically whether the sentence imposed on the appellant was sufficiently different from those given to two other offenders to avoid the appearance that justice had not been done. The appeal was heard in the High Court of Australia. The central legal issue before the court was whether the sentence of 11 years' imprisonment with a non-parole period of 8 years imposed on the appellant was disproportionate when compared to the sentences of two other offenders involved in similar drug trafficking activities. The appellant argued that her sentence was excessive in comparison and that it did not reflect the principles of parity.

The court examined the sentences imposed on the two other offenders and found that one of them was not a co-offender with the appellant. The court considered that the parity reasoning needed to be modified in respect of this offender. Despite the modification, the court concluded that there was not a sufficient disparity between the appellant's sentence and those of the two other offenders to suggest that justice had not been done. The court held that the sentence imposed on the appellant was appropriate in the circumstances, taking into account all relevant factors including the large commercial quantity of drugs involved. The appeal was therefore dismissed, affirming the sentence imposed on the appellant.

Orders