Trinh v The Queen - [2016] VSCA 307

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0049

LINH ANH TRINH	Appellant
v
THE QUEEN	Respondent

S APCR 2016 0102

THUY HOANG TRINH	Appellant
v
THE QUEEN	Respondent

S APCR 2016 0113

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
UYEN THI PHUONG THAI	Respondent

S APCR 2016 0087

MINH TRIET NGUYEN	Appellant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY, FERGUSON JJA and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 and 15 November 2016
DATE OF JUDGMENT:	9 December 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 307
JUDGMENT APPEALED FROM:	DPP v Trinh & Trinh (Unreported, County Court of Victoria, Judge McInerney, 26 February 2016) DPP v Thai (Unreported, County Court of Victoria, Judge McInerney, 13 May 2016) DPP v Nguyen (Unreported, County Court of Victoria, Judge McInerney, 3 March 2016)

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LINH ANH TRINH v THE QUEEN
CRIMINAL LAW – Sentence – Appeal by leave – Traffick large commercial quantity of drug of dependence (heroin) – Sentence of seven years and six months’ imprisonment with five years and six months non-parole period – Appellant sourced heroin interstate, had it couriered to Victoria, arranged for it to be broken down and on-sold – Whether impermissible want of parity with sentence of seven years’ imprisonment with five year non-parole period imposed upon co-offender who trafficked large commercial quantity of the broken down heroin over longer period than the offending by the appellant – Overall different circumstances of offending and offenders – Appeal dismissed.

THUY HOANG TRINH v THE QUEEN:
CRIMINAL LAW – Sentence – Application for leave to appeal – Traffick commercial quantity of drug of dependence (heroin) – Sentence of five years’ imprisonment with three years non-parole period – Applicant’s role to courier heroin from Sydney to Melbourne for cutting down and on-sale – Short period of offending – Conceded error in facts upon which judge imposed sentence – Whether different sentence should be imposed – Leave to appeal granted but appeal dismissed.

DPP v UYEN THI PHUONG THAI:
CRIMINAL LAW – Sentence – Appeal by Director of Public Prosecutions – Traffick large commercial quantity of drug of dependence – Sentence of four years and four months’ imprisonment with three years non-parole period – Respondent’s role to cut down and package heroin for on-sale – Whether finding by judge of exceptional circumstances constituted by third party hardship reasonably open – Finding open – Appeal dismissed.

MINH TRIET NGUYEN v THE QUEEN:
CRIMINAL LAW – Sentence – Application for leave to appeal – Traffick large commercial quantity of drug of dependence – Sentence of six years’ imprisonment with four years non-parole period – Applicant’s role, over short period, assisting co-offender to cut down and package heroin for on-sale – Conceded error in facts upon which judge imposed sentence– Whether different sentence should be imposed – Parity considerations – Leave to appeal granted and appeal allowed – Appellant re-sentenced to five years and six months’ imprisonment with three years and six months non-parole period.

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APPEARANCES:	Counsel	Solicitors
S APCR…

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 Trinh v The Queen

Details

AGLC: Trinh v The Queen [2016] VSCA 307
Case: [2016] VSCA 307
Decision Date: 9 December 2016

CaseChat Overview and Summary

The case of Trinh v The Queen involves four separate appeals and applications concerning individuals involved in the trafficking of large commercial quantities of heroin. The appeals and applications were heard by the High Court of Australia, with each appellant arguing against the severity of their respective sentences, or seeking leave to appeal due to perceived errors in the sentencing process. The central legal issue revolved around whether the sentences imposed by the lower courts were appropriate, considering the roles and contributions of each appellant within the drug trafficking operation, as well as the sentencing of co-offenders.

The court examined the unique roles each appellant played in the drug trafficking scheme, and the extent to which these roles were reflected in their respective sentences. The court considered the appellants' roles, the duration of their involvement, and the sentences imposed on their co-offenders. The High Court held that the sentences imposed were appropriate, taking into account the overall circumstances of the offending and the offenders. The court found that the sentences reflected the gravity of the offences and were proportionate to the roles played by each appellant in the drug trafficking operation. As a result, the court dismissed the appeals and applications, upholding the original sentences.

In the case of Minh Triet Nguyen v The Queen, the High Court allowed the appeal and re-sentenced the appellant to a lesser term of imprisonment due to a conceded error in the facts upon which the original sentence was based. The court recognised that the original sentence was not reflective of the appellant's lesser role and shorter period of involvement in the drug trafficking operation. The appellant was re-sentenced to five years and six months' imprisonment with a non-parole period of three years and six months.

The final orders of the High Court were to dismiss the appeals in the cases of Trinh v The Queen and DPP v Uyen Thi Phuong Thai, while granting leave to appeal and allowing the appeal in the case of Minh Triet Nguyen v The Queen, resulting in a reduced sentence for the appellant.

Orders