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Vi v The Queen

Vi v The Queen

Case [2017] VSCA 254 15 September 2017

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0112

AN KEN VI	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	Respondent

S APCR 2017 0116

RAYMOND LACH	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 September 2017
DATE OF JUDGMENT:	15 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 254
JUDGMENT APPEALED FROM:	[2017] VCC 513 (Judge Maidment)

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CRIMINAL LAW – Sentence – Applications for leave to appeal against sentence – Attempting to traffic a commercial quantity of a controlled drug (209 kg of pure methamphetamine) – Sentences of 13 years’ imprisonment with non-parole period of 9 years – Co-offender sentenced to 10 years’ imprisonment with non-parole period of 7 years – Manifest excess – Whether sentences manifestly excessive – Parity – Whether parity principles infringed – Whether error in fixing non-parole period – Errors not reasonably arguable – Complaints of manifest excess not reasonably arguable – Applications for leave to appeal against sentences refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant VI	Mr J Dickinson QC	Slades & Parsons
For the Applicant LACH	No appearance[1]	James Dowsley & Associates
For the Respondent	Mr K T Armstrong	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

[1]There was no appearance for Mr Lach because he elected to have his application for leave to appeal determined on the papers.

BEACH JA:

On 1 May 2017, An Ken Vi and Raymond Lach each pleaded guilty in the County Court to one charge of attempting to traffic a commercial quantity of a controlled drug (methamphetamine) contrary to ss 11.1(1) and 302.2(1) of the Criminal Code 1995 (Cth). The maximum penalty for this offence is imprisonment for life or a fine of 7,500 penalty units or both.[2] Following a plea hearing, Vi and Lach were each sentenced to a term of imprisonment of 13 years with a non-parole period of nine years.[3]
[2]See ss 11.1(1) and 302.2(1) of the Criminal Code. As at the time of the offending, 7,500 penalty units was the equivalent of $1,350,000.
[3]DPP v Lach [2017] VCC 513 (‘Reasons’).

Prior to their pleas of guilty, a co-offender, Vu Phi Nguyen, was sentenced by the same judge to a term of imprisonment of 10 years with a non-parole period of seven years for the same offence.[4]
[4]DPP v Nguyen (Unreported, County Court of Victoria, Judge Maidment, 12 April 2017) (‘Nguyen Reasons’).

Vi and Lach now seek leave to appeal against their sentences. Vi’s proposed grounds of appeal are as follows:

1.The head sentence and the minimum term are both manifestly excessive.
2.The sentencing judge erred in that he failed to properly apply the principle of parity as between the applicant and co-accused Vu Phi Nguyen.
3.The sentencing judge erred in that he failed to properly apply the principle of parity as between the applicant and co-accused Raymond Lach.
4.The sentencing judge erred in that he failed to give effect to his stated intention to impose a…

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 Vi v The Queen

Details

AGLC: Vi v The Queen [2017] VSCA 254
Case: [2017] VSCA 254
Decision Date: 15 September 2017

CaseChat Overview and Summary

Vi, the appellant, sought leave to appeal against the sentences imposed by the Supreme Court of Victoria. Vi was found guilty of attempting to traffic a commercial quantity of a controlled drug, specifically 209 kg of pure methamphetamine. The trial judge sentenced Vi to 13 years’ imprisonment with a non-parole period of 9 years. The co-offender was sentenced to 10 years’ imprisonment with a non-parole period of 7 years. The appeal was heard by the Court of Appeal.

The legal issues before the Court of Appeal centred around whether the sentences imposed were manifestly excessive, whether the principles of parity had been infringed, and whether there was an error in the determination of the non-parole period. Additionally, the Court had to consider whether any errors identified were reasonably arguable and whether the complaints of manifest excess were reasonably arguable. The appellant argued that the sentences were manifestly excessive, that parity principles had been infringed, and that the non-parole period was incorrectly fixed.

The Court of Appeal found that the errors alleged by the appellant were not reasonably arguable. It held that the sentences were not manifestly excessive and that the trial judge had appropriately considered the principles of parity. The Court concluded that the complaints of manifest excess were not reasonably arguable. Consequently, the appeals against the sentences were dismissed, and the appellant’s applications for leave to appeal were refused.

No further orders were made by the Court of Appeal.

Orders