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Udemba v The King

Udemba v The King

Case [2025] VSCA 61 4 April 2025

Appeal

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0213

COLLINS UDEMBA	Appellant
v
THE KING	Respondent

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JUDGES:	WALKER and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 March 2025
DATE OF JUDGMENT:	4 April 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 61
JUDGMENT APPEALED FROM:	Director of Public Prosecutions (Cth) v Udemba [2023] VCC 1675 (Judge Parrish)

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CRIMINAL LAW – Appeal – Sentence – Appellant convicted of attempting to possess marketable quantity of border-controlled drug and possession of marketable quantity of border-controlled drug – Sentence for attempting to possess was 7 years’ imprisonment – Appellant’s co-accused on charge of attempting to possess received 2 years and 3 months’ imprisonment – Whether appellant’s sentence infringed parity principle – Differences in circumstances of appellant and co-offender not such to justify disparity – Sentence disparity manifestly excessive – Appeal allowed – Appellant resentenced to total effective sentence of 5 years and 6 months’ imprisonment – 3 years and 4 months’ non-parole period.

Criminal Code Act 1995 (Cth), ss 11.1, 307.6, 307, referred to.

R v Nguyen (2010) 205 A Crim R 106; Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; Rose v The King [2024] VSCA 296; R v Mercieca [2004] VSCA 170; Nguyen v The Queen; Phommalysac v The Queen (2011) 207 A Crim R 380, considered.

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Counsel
Appellant:		Mr SN Andrianakis
Respondent:		Mr MD Stanton SC with Ms O Cameron
Solicitors
Appellant:	Starnet Legal Pty Ltd
Respondent:	Mr M de Crespigny, Acting Commonwealth Solicitor for Public Prosecutions

WALKER JA
KAYE JA:

The appellant pleaded guilty to one charge of attempting to possess a marketable quantity of a border-controlled drug (heroin)[1] and one charge of possessing a marketable quantity of a border-controlled drug reasonably suspected of having been unlawfully imported (heroin).[2]
[1]Criminal Code Act 1995 (Cth), ss 11.1(1) and 307.6(1).
[2]Criminal Code Act 1995 (Cth), s 307.9(1).
Following a plea made on his behalf, the appellant was sentenced to a total effective sentence of 8 years’ imprisonment, with a non-parole period of 5 years and 4 months, constituted as follows:

Charge Offence Maximum Sentence Cumulation

1 Attempt to possess a marketable quantity of a border-controlled drug 25 years and/or 5000 penalty units 7 years Base

2 Possess a marketable quantity of a border- controlled drug reasonably suspected of having been unlawfully imported 25 years and/or 5000 penalty units 4 years 1 year

TotalEffectiveSentence: 8 years’ imprisonment

Non-ParolePeriod: 5 years and 4 months

Section6AAAStatement: 10 years and 6 months

Otherrelevantorders:
Forfeiture order

869 days reckoned as pre-sentence detention

On 8 April 2024, Boyce JA granted the appellant leave to appeal against sentence on the following ground:
1.The sentence on charge 1 and thus the total effective sentence and non- parole period imposed are manifestly excessive when regard is had to the following particulars:
Particulars
a)The sentence on charge 1 is indicative of inadequate weight being given to the matters put in mitigation,…

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 Udemba v The King

Details

AGLC: Udemba v The King [2025] VSCA 61
Case: [2025] VSCA 61
Decision Date: 4 April 2025

CaseChat Overview and Summary

In Udemba v The King, the appellant was convicted of attempting to possess a marketable quantity of a border-controlled drug and possessing a marketable quantity of a border-controlled drug. The case was heard in the Court of Appeal, where the appellant challenged the sentence imposed by the trial judge. The appellant's co-accused, who was charged with the same offences, received a significantly lesser sentence of 2 years and 3 months’ imprisonment for attempting to possess, while the appellant was sentenced to 7 years’ imprisonment for the same offence. The appellant argued that this disparity in sentencing infringed the principle of parity in criminal sentencing.

The central legal issue in this appeal was whether the disparity in the sentences imposed on the appellant and his co-accused breached the principle of parity. The appellant contended that the trial judge failed to adequately consider the differences in the circumstances of the two offenders, which should have resulted in a more equitable sentence. The Crown, on the other hand, argued that the disparity was justified based on the different roles and culpability of the appellant and his co-accused. The Court of Appeal had to determine whether the trial judge's sentence for the appellant was manifestly excessive and whether it breached the principle of parity.

The Court of Appeal found that the differences in the circumstances of the appellant and his co-accused did not justify the significant disparity in their sentences. The court held that the trial judge had not adequately considered the principle of parity and that the disparity in sentences was manifestly excessive. Consequently, the appeal was allowed, and the appellant was resentenced to a total effective sentence of 5 years and 6 months’ imprisonment, with a non-parole period of 3 years and 4 months. The Court of Appeal emphasised the importance of ensuring that sentences reflect the principle of parity, taking into account the circumstances of each offender.

Orders