Ho v The Queen [2012] VSCA 26

11 It cannot be said that the verdict is unsafe or unsatisfactory in the sense that the evidence contained discrepancies, displayed inadequacies, was tainted or otherwise lacked probative force or that this Court should conclude that there is a significant possibility that an innocent person has been convicted.[1] This Court must not disregard the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury has had the benefit of seeing and hearing the witnesses. There was a body of evidence from eye witnesses as to the shooting of the two victims by the applicant. In the face of that evidence, the jury were not bound to accept the explanation advanced by the applicant.

12 In a written submission to this Court, the applicant has raised two specific arguments that he contends should cause this Court to doubt his guilt of the offences.

13 The applicant argues that the concession by the Crown that Quang may have picked up the samurai sword in the flat rather than bringing it with him to the flat is significant for it bears upon the applicant's credibility.

14 While the credibility of the applicant was a critical issue, I do not consider that the jury's consideration of the question whether Quang entered the flat with or without a sword would have had any effect upon the jury's assessment of the applicant's evidence of the circumstances in which he fired the revolver. The question of the origin of the sword related only to the complicity of Quang.

15 The applicant has also characterised as a concession the respondent's contention that the fact that the applicant's post-offence conduct was equally consistent with shock as with consciousness of guilt is irrelevant. Again, I do not consider that the concession, if that is how it is to be characterised, was material. Whether the post-offence conduct of either Quang or the applicant saying, 'Lets just go and dump the body' and leaving together by the stairs was to be explained as a result of shock or consciousness of guilt was a matter for the jury.

16 I have had regard to the arguments advanced by the applicant before the judge who refused leave to appeal. The applicant contended that the fact that he registered his attendance at the flats upon arrival was inconsistent with him having any intent to commit the offences that ultimately took place. Further, he contended that the jury may impermissibly have used a finding of guilt on the count of attempted murder as proof of the count of murder. The applicant contended that it was improbable that he formed an intent to kill between the firing of the first and second shots.

17 In my opinion, none of the matters advanced by the applicant meant that the jury must have entertained a reasonable doubt as to his guilt. None of those matters was necessarily inconsistent with the formation of an intention to kill the victims when the revolver discharged.

18 Accordingly, for the forgoing reasons I would dismiss the application for leave to appeal against conviction.

19 The application for leave to appeal against sentence requires an examination of the personal circumstances of the applicant.

20 The applicant is 34 years' old. He was born in Thailand and is of Chinese descent. He arrived in Australia with his family as refugees in 1979.

21 The applicant left school after year 11. He began using drugs. At the age of 18 years he was injecting himself with heroin.

22 The applicant had some 133 prior convictions from 15 court appearances, including drug offences, offences of dishonesty, assault and armed robbery.

23 The sentencing judge said that she was not persuaded that the applicant had good prospects of rehabilitation.

24 When the offences the subject matter of these applications were committed, the applicant was carrying on the business of a drug dealer.

25 The applicant contended, in a written submission to the single judge of this Court, that 'the finding of firstly, the Court of Appeal, the High Court of Australia and the Director of Public Prosecutions acceptance of a plea of guilty to manslaughter and recklessly causing serious injury, together, may with respect,

26 Doing the best I can with this somewhat garbled submission, I do not consider that the possibility that the applicant at one point may have offered to plead guilty to lesser offences is a material consideration that bears upon the question whether the sentence imposed upon him was manifestly excessive.

27 In my opinion, the total effective sentence of 22 years and 4 months' imprisonment with a non-parole period of 19 years was within the range of sentences available to the sentencing judge. The offences were unprovoked. They were apparently committed to advance the applicant's business as a drug dealer. The fact that the applicant brought the revolver to the flat is evidence of a degree of forethought.

28 I would refuse the application for leave to appeal against sentence.

[1] See M v R [1994] HCA 63; (1994) 181 CLR 487.