| 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,…
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- AGLC
- Udemba v The King [2025] VSCA 61
- Case
- [2025] VSCA 61
- Decision Date
CaseChat Overview and Summary
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.
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