Truong v The Queen - [2017] VSCA 105

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0019

BOI LIEN TRUONG	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL ACJ, REDLICH and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 May 2017
DATE OF JUDGMENT:	4 May 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 105
JUDGMENT APPEALED FROM:	[2016] VCC 2060 (Judge Saccardo)

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CRIMINAL LAW – Appeal – Sentence – Parity – Knowingly deal with proceeds of crime – Applicant sentenced to 15 months’ imprisonment, co-offender sentenced to 6 months’ imprisonment with 18-month Community Correction Order – Whether disparity of sentences justified – Material differences – Applicant committed further offences on bail – Co-offender’s impaired mental functioning – Verdins principles 2, 5, 6 applicable – Reasonably open to judge to differentiate – Leave to appeal refused

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Doogue O’Brien George
For the Respondent	Ms D I Piekusis	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL ACJ
REDLICH JA
KYROU JA:

The parity principle

This application for leave to appeal raises one ground only. It is that, in sentencing the applicant and her co-offender, the judge failed to apply ‘the parity principle’. As a result, it is said, there is an unjustified disparity between the sentences respectively imposed on them.

The parity principle requires that there be appropriate relativity of sentence between co-offenders. The principle is fundamental to the community’s sense of justice, for the reasons which Mason J gave in Lowe v The Queen:

Just as consistency in punishment — a reflection of the notion of equal justice — is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.[1]

Indeed, such is the importance of ensuring appropriate differentiation in sentence, as a fundamental matter of fairness, that a court of criminal appeal can interfere with an otherwise appropriate sentence in order to ensure that the sentencing differentials are just.[2]

[1](1984) 154 CLR 606, 610–11 (‘Lowe’).

[2]Ibid 612; Postiglione v The Queen (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ).

The applicant contends that, because of the differential between the sentences, she is ‘left with a justifiable sense of grievance’. That is, of course, the form of words which Mason J used in Lowe, when he said:

The sentence under appeal may be free from error except in so far as discrepancy itself constitutes or causes error. And the justification which the courts assign for intervention in the case of disparity is that disparity engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that…

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 Truong v The Queen

Details

AGLC: Truong v The Queen [2017] VSCA 105
Case: [2017] VSCA 105
Decision Date: 4 May 2017

CaseChat Overview and Summary

The case of Truong v The Queen involved an appeal against sentence in the High Court of Australia. The applicant, Truong, had been sentenced to 15 months' imprisonment for knowingly dealing with proceeds of crime. The co-offender, who was not part of the appeal, received a lesser sentence of six months' imprisonment with an 18-month community correction order. The central issue in the appeal was whether the disparity in sentences was justified given the material differences between the cases. Truong had committed further offences while on bail, whereas the co-offender had impaired mental functioning.

The court examined the sentencing principles, particularly those outlined in Verdins, to determine if the disparity was reasonably open to the judge. Principles 2, 5, and 6 were found to be applicable, addressing the need for parity in sentencing, the need to reflect the offender's culpability, and the need to promote respect for the law. The court held that the judge had reasonably differentiated the sentences based on the material differences in the cases, including Truong's conduct while on bail and the co-offender's mental health issues. The appeal was thus dismissed, and leave to appeal was refused.

The reasoning of the court highlighted the importance of individualised sentencing, which takes into account the specific circumstances of each offender. The differences in conduct and mental health provided a basis for the judge's decision to impose a harsher sentence on Truong. The court concluded that the judge's approach was within the bounds of a reasonable exercise of discretion, and the disparity did not amount to an error in principle. The orders of the lower court were therefore upheld.

Orders