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[2020] VSCA 222
General information, not legal advice.
Court of Appeal (Vic)
2020-09-03
Priest JA, Maxwell P
Original judgment source is linked above.
DPP v Huynh & Ors (Unreported, County Court of Victoria, Judge Johns, 21 February 2019) (Conviction); [2019] VCC 635 (Sentence)
CRIMINAL LAW - Appeal - Conviction - Kidnapping and associated offences joined on indictment with charge of being a prohibited person in possession of firearm - Whether label 'prohibited person' prejudicial - Whether prejudice could be reduced or eliminated by directions - Whether judge erred in failing to sever charge - Whether trial miscarried as a result of failure to sever charge - Need for reform - Leave to appeal refused.
CRIMINAL LAW - Appeal - Sentence - Kidnapping and associated offences - Kidnapping to enforce debt - Convicted following trial - Sentence of 4 years' imprisonment with non-parole period of 2 years and 6 months - Whether sentence manifestly excessive - Whether principle of parity infringed - Leave to appeal refused.
1 I have had the considerable advantage of reading in draft the reasons for judgment of Priest JA. I agree that, for the reasons which his Honour gives, each of the applications for leave to appeal must be refused.
2 I would also endorse what his Honour has said about the need for legislative amendment to eliminate any future problem arising - or being seen to arise - from the use of the phrase 'prohibited person' in s.5(1) of the Firearms Act 1996. It seems most unfortunate that this issue of possible prejudice should have arisen, given that the charge against Le Huynh under that section was peripheral to the issues in the trial and - in particular - that the 'prohibited person' element of the charge was not in issue.
4 On 21 February 2019, a jury empanelled in the County Court found Le Huynh guilty of intentionally causing injury[3] (charge 1); and both Le Huynh and Phu Huynh guilty of kidnapping[4] (charge 3) and common assault[5] (charge 5). The victim of these offences was a former friend of Le Huynh's, Matthew Sheppard ('Sheppard'). Significantly, the jury also convicted Le Huynh of a charge of being a prohibited person in possession of a firearm[6] (charge 8).
5 Following pleas in mitigation, on 8 May 2019 the trial judge sentenced Le Huynh to a total effective sentence of five years and three months' imprisonment with a non-parole period of three years, and Phu Huynh to a total effective sentence of four years' imprisonment with a non-parole period of two years and six months, in the manner I will later set out.[7]
6 Both Le Huynh and Phu Huynh now seek leave to appeal against conviction on the sole ground[8] that the trial judge
erred in the exercise of his discretion not to sever from the indictment the charge of prohibited person in possession of a firearm.
7 Phu Huynh also seeks leave to appeal against sentence on two grounds as follows:
8 For the reasons that follow, I consider that each application for leave to appeal should be refused.
9 So as to understand the issues raised by the present applications, it is necessary to summarise the applicants' offending.
10 In essence, the charge of kidnapping arose out of a debt - at least partly a drug debt - owed by Sheppard to Le Huynh, which Le Huynh sought to enforce by keeping Sheppard a prisoner until it was paid.
11 On 15 May 2017, Sheppard went to Le Huynh's premises in Delahey to discuss the debt. He had some drugs in his possession but was unable to satisfy Le Huynh's demands with them. Le Huynh - whom Sheppard also called 'Viet' - asked, 'Where's the money?', and threatened Sheppard with a silver coloured pistol. He struck Sheppard several times with the pistol, causing an injury. Sheppard gave the following evidence about the pistol and its use when questioned by the prosecutor:
He said, 'Where's the money?' in a pretty angry tone?---Yep.
And then what?---Ah, then he's hit me in the head with the - yeah, pistol. I didn't really see where it come from.
All right. This pistol, can you describe that pistol?---Yeah, it was like silver.
Yes?---Um, yeah, like a silver handgun.
All right. Now, pistols could be what might be described as automatics or they can be what you might be a revolver. What was this?---It wasn't a revolver, so yeah automatic.
It was a revolver?---It wasn't a revolver.
Yes, okay. Had you ever seen this pistol before?---Ah, yeah.
Where had you seen it?---Ah, like at Viet's house.
So the silver automatic. And can you say anything more about that pistol, or was anything more - have you heard anything more described about that pistol?---Ah, I'm not sure, but I thought it was maybe 38 calibre.
Why did you think it was maybe a 38?---Ah, just that, yeah, I thought it was, I don't know, I heard it was like it was that or if I just said, look, that's my opinion, I'm not, yeah, 100 per cent sure.
Okay. So you're not sure if someone said that, or just for whatever reason made you thought that?---Yeah.
Okay. So whereabouts on your body have you been hit?---Ah, in the head, top of my head here.
...
So you pointed to your left forehead just sort of under your - just about your hairline, is that right?---Yep.
Do you agree?---Yeah.
And which part of the pistol hit your head, do you know?---Ah, like the barrel, the front of it.
...
All right. And what was the impact of that on you?---Ah, like it cut my head, and I was, um, like 'cause the way he was holding it, his hand was kind on the trigger too, so it was like, yeah, a bit more worried that it could have accidentally gone off as well.
12 Le Huynh told Sheppard that he was not leaving. He said he would contact others who would go with Sheppard to collect money. Sheppard all the while was sending text messages to others in an effort to secure funds.
13 At one point Le Huynh telephoned his younger brother. Phu Huynh then arrived and became what the judge described as 'an enthusiastic participant in the effort to extract payment of the debt from the victim'. Two or three others - each of whom participated in some way in the ongoing detention of Sheppard - arrived at the same time.
14 Phu Huynh and a number of the others then assaulted Sheppard in Le Huynh's presence. Le Huynh directed the assault and, curiously, took a photograph of the victim's injuries.
15 At 7.55 pm, Le Huynh left the premises. Before doing so, he gave the pistol to the others so that they could continue the process of recovering the debt. Thereafter, Phu Huynh had a central role in the ongoing detention of Sheppard. In answer to the prosecutor, Sheppard gave the following evidence concerning Le Huynh's departure and what he did with the pistol:
Now, how long did it remain that there were the three of them in that study?---Ah, just for about another 10 minutes or so.
All right. And then what happened?---Ah, then Viet left.
Viet left. Okay. Did he say anything when he left, or explain why he was leaving or anything like that?---Ah, no, he just left.
What happened to that pistol when he left?---Ah, he handed it to Phu.
Where had the pistol been right up until when he left?---Ah, in Viet's hands.
All right. And when he left and he handed it to Phu?---Yeah.
...
What, if anything was Phu doing with that pistol, what happened to the pistol after it was handed to him?---Ah, he was just holding it.
16 I pause to note that, notwithstanding Sheppard's evidence, in his sentencing remarks the trial judge made the following findings about Phu Huynh's possession of the firearm:
After your brother left, I am satisfied that you Phu Huynh became central to the ongoing detention of the victim. Text messages sent by you after the victim's escape make this very clear. As indicated during the plea hearing I cannot be satisfied to the requisite standard that you handled the weapon as per the evidence of the victim. In brief, my reasons for concluding I cannot be satisfied you handled the weapon are due to the prior inconsistent statements of the victim, and the circumstances in which he first made such an accusation.
17 Resuming the narrative, it appears that another co-accused, Glenn Nguyen, arrived not long before Phu Huynh and others accompanied the victim to his home address.[9] The purpose of taking him to his home was to try and collect money he said would be left there. Sheppard had earlier sent text messages to his mother asking that she obtain a substantial sum of money and leave it in the letter box. He also asked her to contact the police. Sheppard's evidence-in-chief included the following:
All right. So was anything said about the last two when they did arrive to indicate to you that these were the two that you were waiting for?---Ah, no, just like yeah, like they - like I got told to get up and like 'let's go'.
Who said 'let's go', do you remember?---Ah, I think Phu, because then he handed the pistol to one of them.
...
So what then happened?---Ah, then we left the house, and went to the car.
...
Where was that car?---Ah, parked at the front.
At the front of Viet's house?---Yeah.
Do you remember the process of going out to the car?---Yeah, I was in the back seat, at the right hand side, then the bigger bloke got in the left hand side at the back, and then the smaller bloke was driving.
So did you all walk out together, or how did that work, do you remember?---Yeah, rocked - one - like, yeah, together.
And where was the pistol at this stage, do you know?---Ah, no, I'm not sure like where he put it or anything.
Sorry, who's he when you say - - - ?---Ah, Phu handed it over, I think, and I didn't see where he put it.
But sorry, who's the he that you're talking about?---Ah, the driver.
18 At his home, Sheppard procrastinated in the hope that police or other help might arrive. Sheppard was escorted to the letterbox - where money was supposed to have been left - but, after finding nothing in the letter box, went to the garage, where he pretended to look for money. (He had also surreptitiously sent further text messages urging the attendance of the police.) Phu Huynh told Sheppard that he was taking too long and ordered him back to the car. He drove his accomplices and the victim back to Delahey.
19 Having dropped his accomplices at Delahey, Phu Huynh again drove with Sheppard back to the victim's home. Sheppard created another ruse, and was able to flee into his house before Phu Huynh was alerted to his deception. He locked the doors and effectively escaped his kidnappers.
20 I pause once more to note that the defence cases were run on the basis that Sheppard's lack of credibility was such that he could not be accepted as a witness. The presence of the weapon, the fact that he was imprisoned in order to satisfy a debt and the fact that he was assaulted, were all challenged. As to that, it is plain that Sheppard's credibility did not survive unscathed. Indeed, in light of Sheppard's 'prior inconsistent statements' and 'the circumstances in which he first made such an accusation', the trial judge - who had the advantage of seeing and hearing Sheppard's evidence - could not be satisfied beyond reasonable doubt that Phu Huynh 'handled the weapon'.[10]
21 At the time of Le Huynh's arrest, police located at his premises 30.4 grams of methylamphetamine left behind by Sheppard, together with deal bags. A total of $3,100 in cash was also found (summary charge 10, dealing with property suspected of being the proceeds of crime). Further, two magazines containing ammunition were found in a bedroom (summary charge 9, unlicensed person in possession of ammunition).[11]
The application for severance and the trial judge's ruling
22 Prior to the empanelment of the jury, Le Huynh's counsel made an application for the severance of charge 8 - being a prohibited person in possession of a firearm - from the indictment. The judge refused the application.
23 In support of the application, Le Huynh's counsel submitted that the charge should be severed because of the prejudice engendered by the presence of such a charge. The prejudice was of such an order that it overwhelmed any convenience of having the charge tried with the other charges. Counsel submitted that the element of 'prohibited person' was tantamount to evidence of bad character. Once the jury heard the expression 'prohibited person' there was no direction capable of curing the prejudice such that the jury would not speculate or draw adverse inferences. One of the first things the jury would want to know, counsel submitted, was how Le Huynh became prohibited. The charge had the potential of 'contaminating' all other charges on the indictment. Finally, counsel had indicated to the trial judge that, if the charge were severed and there was a subsequent trial relating to that charge, his client would agree to the playing of the recorded evidence, given the clear overlap.
24 The gist of the arguments advanced for and against the severance application pre-empanelment may be gleaned from the following exchanges between the trial judge and counsel:[12]
[PROSECUTOR]: The firearm is a very important part of the case on the kidnapping. It really needs to be determined by the same jury. There is very little real prejudice, it's submitting. I mean, in an ideal world I suppose you'd sever it because you'd avoid that very little bit of prejudice, but in this case the consequences of severance are just too drastic.
I mean, if he was acquitted on the main trial, no doubt we would discontinue that count, but if he's convicted - he can't be expected to plead to it. I don't imagine he'd plead to it. He might want to pursue an appeal and do whatever. So there's every prospect of two trials that would cover almost exactly the same ground.
The prejudice can be managed, Your Honour. We can think of a form of words that would best accommodate that, but the jury will be told they're not to speculate as to why he's prohibited. They could be told even that one of the ways you can - sorry, I'm not sure. We can come up with the most benign form of words available, and then added with the non-speculation direction, in my submission, will manage any prejudice that would arise.
HIS HONOUR: Yes. [defence counsel], I'm inclined to agree with [the prosecutor] in relation to the prohibited person charge. As he says, in an ideal world you'd be able to remove all aspects of prejudice, but in the context of this case with the breadth of the allegations - - -
[DEFENCE COUNSEL]: It's a difficult political client [sic], isn't it, starting with Bailey, people offending on parole and things prohibited - I mean, I know what Your Honour is about to say and rule, but it just seems to me that once a jury hears 'prohibited', there's no direction that's capable of saying, 'Don't speculate on it.' It will be the first thing they want to know: 'How did he become prohibited?' And we can't mislead them by saying, 'He had a barney with his neighbour.'
HIS HONOUR: Well, what they will be told, I imagine, unless it is an issue, is the element of being prohibited is not in issue. The issue in relation to that charge is whether he had a firearm, and firearm means X, Y and Z.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: What do you say, beyond that speculation, the prejudice is?
[DEFENCE COUNSEL]: Well, when I hear that there's no issue with he's prohibited, what I hear is there's no issue that he's got some sort of problem or that he's a bad person, so don't worry about that, but let's just get on with it, and I just say that what fixates in my mind is 'prohibited'. 'Why is he prohibited? What's he doing? He obviously shouldn't have a gun because he's prohibited.'
HIS HONOUR: Because he had a gun previously, I suppose, might be one of - - -
[DEFENCE COUNSEL]: That would be the first thing that my mind would jump to. He's had a gun before, he's already been told, 'You can't have guns because you're prohibited. This is the second time we've told you this, and therefore you're' - - -
HIS HONOUR: That's really in the realms of speculation now. They'll be told not to speculate.
[DEFENCE COUNSEL]: It is in the realm of speculation. They are told not to speculate, but in my submission, it's something that they'll hear at the start of the trial and it will be a question that will be alive in their mind from as soon as they hear the accused people arraigned and it will sit there with them, they'll get directions no doubt shortly thereafter, but in my mind it has the real risk of contaminating everything from there on further, for me, and I imagine also for everyone else, because they're then going to be hanging out with this bad guy and at the beck and call of someone who is prohibited.
HIS HONOUR: Yes. Well, they won't know what 'prohibited' means.
[DEFENCE COUNSEL]: No, and that's half the problem.
HIS HONOUR: And they'll be told to consider that - if you want me to, I'll tell them that they're not to consider that he's a bad guy or that because he's prohibited that he would act in a particular way.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: I mean, in this trial they're going to hear that there's an alleged drug trafficker who had a debt and you're disputing that.
25 On the day following the exchange extracted immediately above, the judge and counsel returned to the issue of severance. In the course of further discussion, the judge ruled informally on the application:
HIS HONOUR: ... I think I said yesterday, if the possession of the gun wasn't in issue I [would] have no problem severing this charge.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: Because what's weighing on my mind is, I acknowledge there's prejudice with the label 'prohibited'. The consequences of severance, I've got to weigh up the - all the other features that are listed in the authorities on severance.
[DEFENCE COUNSEL]: Yes, of course.
HIS HONOUR: The community, the convenience, the cost to the community.
[DEFENCE COUNSEL]: Although importantly it does - - -
HIS HONOUR: Getting witnesses to come twice and so on.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: If I was of the view that the prejudice, based on the label 'prohibited', that there was a danger of that overwhelming the proper consideration of the issues, I wouldn't hesitate to sever but the view I currently hold is that it - I could give a very firm direction that, 'There's all sorts of reasons, many reasons how a person could be prohibited, not for you to consider, disregard it, don't speculate.'
And then in the context of this case they're really going to have to, as I understand it, be making an assessment of Mr Sheppard and what they make of his evidence, and I don't see the danger of them then engaging in some impermissible process to assist them in assessing Mr Sheppard by using the word 'prohibited' as being an unacceptable danger in this case, given the consequences of severance.
[DEFENCE COUNSEL]: Yes, Your Honour. The only case I was going to make mention of this morning was Rocco Arico[[13]] which was last year and went to the Court of Appeal. ...
The judge's directions to the jury on the element of 'prohibited person'
26 After severance of charge 8 was refused, a jury was empanelled. Prior to the prosecutor's opening, the judge gave preliminary directions to the jury. Among those directions were the following, which related specifically to the 'prohibited person' element of the charge. The judge said that:
if you look at the last charge, which is an allegation of being a prohibited person possessing a firearm, there will be some evidence in this case. It's disputed, as I understand it, that there was a firearm in possession of Mr Le Huynh. Now, the issues in the trial, as I say, will be identified. I anticipate that in Le Huynh's case at the least it will be a challenge to the credibility and reliability of the complainant as to whether you can accept or have a doubt about what we says about the events.
So the issue in this trial in respect of that charge of being a prohibited person possessing a firearm will be whether Le Huynh did in fact possess a firearm; whether he had it. One of the elements of that charge, that he was a prohibited person, will not be in issue. So that means the prosecution will not have to lead evidence to prove that element, so you won't concern yourself with that. In other words, it's irrelevant to concern yourself with that.
And you'll recall what I said to you yesterday about, you decide the case solely on the evidence you hear in the courtroom. I can tell you that there are a great many ways that one can be a prohibited person, a great variety of circumstances can cause that to arise, and you'd be surprised at the breadth of it.
It's irrelevant for you to speculate in this case on that issue, because as I say, it's not an issue for you to determine. So you're not to speculate in this case as to why that term 'prohibited' is satisfied. And in this trial you'll have enough to focus on. There'll be a lot of issues you have to focus on with respect to five different accused, as to whether the prosecution has made out its case in relation to them, and what the issues are.
So I'm directing you to put that out of your mind, the issue of prohibited person. You decide this case, as I said, solely on the evidence in this court, and that would be irrelevant and impermissible for you to speculate on that.
27 After the judge's preliminary directions were given, the prosecutor opened the case and defence counsel responded. Sheppard was then the first witness to give evidence for the prosecution.
28 The next (and only other) witness in the prosecution case was Detective Senior Constable Justin O'Brien, who was attached to the Armed Crime Squad. He gave evidence that he executed a search warrant with other police on Le Huynh's premises at 6.18 am on 17 May 2017. In the main bedroom of the premises police located 'some magazines' that go 'in a firearm'. A magazine has 'the bullets in it', and 'it's the part you shove in the bottom' of the firearm. Two magazines in the main bedroom were loaded with ammunition, which were 'the kind of magazines that can be inserted into an automatic pistol'.
29 Detective O'Brien had not completed his evidence, when, during a break, the jury asked two questions:
Does prohibited person mean that they have been prohibited or just do not have a licence, and can they [prohibited persons] own gun parts?
Do you need a licence to purchase a magazine and/or ammunition?
30 The judge gave the following directions in answer to the jury's questions:
Members of the jury, before we resume with the evidence, I'll deal first with the two questions that were provided earlier, the first being, 'Does prohibited person mean that they have been prohibited or just don't have a licence, and can they (prohibited person) own gun parts?' I'll answer it in this way. As I directed you in my preliminary remarks, and that's when I spoke to you at the start before there was any evidence, the issue in relation to charge 8, which is the charge of being a prohibited person in possession of a firearm, is whether the prosecution has proved beyond reasonable doubt that Le Huynh possessed a firearm, and at the conclusion of the case I'll give you full directions about what's a firearm, and so on and so forth. The element of being a prohibited person does not fall for your consideration. There is no issue as to whether it is satisfied. So you are not to speculate on what being a prohibited person may mean, or use it in any way adverse to Le Huynh or any other accused in this case for that matter. You are not to use the fact that that element is satisfied in relation to any other charge or count, as we call them, on the indictment in this case. I give you that direction. Each charge you consider separately.
As I said at the start there are a wide variety of circumstances this which one can be a prohibited person. But it's not relevant for you to consider. It is certainly not relevant for you to speculate as to those circumstances, because as I said at the start you decide this case solely on the evidence, and I'll remind you of that again at the end of the case. So you are not to speculate on that issue or use it in any adverse fashion toward anyone in this case at all, or use it in consideration of any other count.
The second question, 'Do you need a licence to purchase a magazine and/or ammunition?' The answer is briefer but again similar. That issue is not a relevant consideration for you in this trial. You will focus on the evidence, and we'll probably conclude the evidence this morning. You will focus on the evidence and the issues in the case and the directions I give you at the end, and there will be enough of them in this case to occupy you, many issues to consider. So you're not to speculate on matters beyond the evidence or speculate on irrelevant matters, and you're not to use that sort of consideration in any way adverse to the accused man Le Huynh or to any other accused person in this case.
31 In his charge to the jury, the judge gave further directions which once more were designed to ameliorate the perceived prejudice to Le Huynh resulting from the joinder of charge 8 with the other charges on the indictment. Hence, when instructing the jury on the elements of charge 8, the judge said:
And the final charge is one of a prohibited person possess a firearm. You understand that the issue in that allegation is whether a firearm was possessed and the prosecution rely upon the evidence of Matthew Sheppard of course who describes the firearm and the manner in which it was used.
The prosecution also point to the ammunition found at the house and the calibre of it in support of the fact that there was the said firearm in there. Of course, the issue in the trial is defence contend that there ever was a firearm. It is just a fiction part of - one of Matthew Sheppard's part [sic] of the overall fiction.
There was not a firearm. If there was, where is it? What would you leave ammunition around ... if you are concealing the firearm?
For this offence, as I have already stated to you, the issue of prohibited person is not in issue. The issue in this trial is whether Le Huynh did in fact possess a firearm, whether he had it at the relevant time. That is the issue.
So you do not have to concern yourself with the issue of prohibited person and, as I have said, you do not speculate. There are all sorts of reasons how a person can become prohibited. It is irrelevant for you to consider those or speculate on them. ...
32 In this Court, counsel for Le Huynh contended that the refusal to sever charge 8 resulted in a substantial miscarriage of justice. The joint trial, counsel submitted, was already 'swamped with highly prejudicial material', given the evidence concerning Sheppard's drug debt to Le Huynh and items located at his premises (including drugs and cash, supportive of drug-trafficking activities). Counsel submitted that the presence of charge 8 heightened the risk of prejudice to the applicant, since the element of 'prohibited person' suggested that Le Huynh was a bad person, who had been in trouble before and had thus been deemed 'prohibited'. The term 'prohibited person' invited speculation by the jury that was not capable of being ameliorated by judicial direction. Once the judge erroneously refused to sever the indictment, the error was 'embedded', so that there was nothing the trial judge could do to remedy the prejudice.
33 In my view, there can be no doubt that charge 8 was properly joined with the other charges on the indictment against Le Huynh. (Indeed, I did not understand his counsel to contend otherwise.) I am also of the view - contrary to the submissions of Le Huynh's counsel - that the judge's exercise of discretion not to sever the charge was correct; and that, as the trial played out, no substantial miscarriage of justice was occasioned by the charge being tried with the other charges against Le Huynh.
34 The starting point of any analysis must be s 159(3)(c) of the Criminal Procedure Act 2009 ('CPA'), which provides that an indictment must comply with Schedule 1.
(1) A charge-sheet or indictment may contain charges for related offences, whether against the same accused or different accused.
36 The predecessor to clause 5(1) - Rule 2 of the (repealed) 'Presentment Rules' in the Sixth Schedule to the Crimes Act 1958 - had what Batt JA described in GAS[14] as a both a 'liberalising and a restrictive effect' upon the power of the prosecution to join charges in the same indictment. Thus, Brennan J had observed in Ryan:[15]
When the applicant in this case was tried and sentenced, rule 2 in the Sixth Sch. to the Crimes Act 1958 (Vict.) provided:
'Charges for any offences whether felonies or misdemeanours may be joined in the same presentment if those charges are founded on the same facts or form or are a part of a series of offences of the same or a similar character.'
The rule annuls the prohibition on joinder of a count of felony with a count of misdemeanour (see Clayton-Wright[16]) and it confines the joinder of counts to cases where the charges in the presentment are connected in one or other of the ways mentioned in the rule. The right of the Crown to join in the one indictment two or more felony charges or two or more misdemeanour charges which are not connected (Castro v The Queen[17]) is thus modified. The effect of the rule in confining the joinder of counts is important to the orderly administration of criminal justice both at trial and on appeal. ...
37 In GAS, Batt JA explained[18] that the joinder of charges in the same indictment
has traditionally been treated as a matter of convenience, serving to assist administrative efficiency and save the time, trouble (including trouble to witnesses) and expense of separate trials of each count, but not dispensing with the need for the jury to consider each count and the evidence applicable to it as though it were a separate presentment. The power to order separate trials is a discretionary one, requiring as a pre-requisite the formation by the trial judge of an opinion of likely prejudice or embarrassment in the defence of an accused person or an opinion as to the desirability of separate trials for any other reason.
38 As will have been noticed, clause 5(1) of Schedule 1 of the CPA permits 'related offences' to be joined in the same indictment. Section 3(1) defines 'related offences' as follows:
related offences means offences that are founded on the same facts or form, or are part of, a series of offences of the same or a similar character; ...
40 In Reid, when discussing the forebears of clause 5(1) of Schedule 1, the Court analysed the policy underpinning the rule it contains:[24]
Section 371 of the Crimes Act provides that, subject to the rules under that Act, charges for more than one indictable offence may be joined in the same presentment. Rule 2 provides that charges for any offences may be joined in the same presentment if they are founded on the same facts or form or are part of a series of offences of the same or similar character. In our view, each of the requirements contemplated by the rule has been made out in this case (although it would have been sufficient if only one had been satisfied).
Before analysing the two requirements, it is desirable to mention that it has long been accepted that the rule should receive a liberal interpretation consistent with the policy underlying it, namely, to enable the joinder of charges which may be 'properly and conveniently' dealt with together. This involves the striking of a balance between on the one hand, the need to ensure that by charging the accused with separate offences in the one presentment he or she is not thereby unduly prejudiced or embarrassed at trial by reason of evidence being led in respect of each of the charges and, on the other, the interest of the public in the efficient allocation of judicial resources, consistency in verdicts and expeditious and final litigation as well as with the convenience of witnesses: R v Demirok at 254-5; Ludlow v Metropolitan Police Commissioner [1971] AC 29; R v Kray [1970] 1 QB 125 at 130-1; R v Collins; Ex parte Attorney-General [1996] 1 Qd. R. 631 at 636-7.
The requirement that the charges are to be founded on the same facts does not mean that the facts in relation to the charges must be identical in substance or be virtually contemporaneous. It is sufficient if the charges have a common factual origin (R v Barrell and Wilson (1979) 69 Cr App R 250 at 252-3), or if there is a sufficient connection or nexus between them (R v Collins at 636). In order to determine if the relevant nexus exists, one has regard to the charges and, broadly, the evidence that is to be led in relation to them by the parties. ...
41 Section 193 of the CPA permits a judge to sever charges joined on an indictment. So far as is relevant, it provides:
193 Order for separate trial
(1) If an indictment contains more than one charge, the court may order that any one or more of the charges be tried separately.
...
(3) The court may make an order under subsection (1) or (2) if the court considers that -
(a) the case of an accused may be prejudiced because the accused is charged with more than one offence in the same indictment; or
(b) a trial with the co-accused would prejudice the fair trial of the accused; or
(c) for any other reason it is appropriate to do so.
42 By reason of s 193(3), the discretion reposed in a trial judge under s 193(1) to 'order that any one or more of the charges be tried separately' may be exercised if the judge considers that 'the case of an accused may be prejudiced because the accused is charged with more than one offence in the same indictment', or if 'for any other reason it is appropriate to do so'. Hence, the convenience of joining more than one charge in the same indictment - including the public interest in the efficient allocation of judicial resources; the need for consistency in verdicts; the desirability of expedition in, and finality of, criminal proceedings; and the convenience of witnesses - may, depending on the prevailing circumstances, yield to the prejudice engendered by the joint trial of particular charges.
43 So far as severance is concerned, Callaway JA made the following observations in TJB:[25]
44 In considering whether the prejudice flowing to an accused from the failure to sever a charge (or charges) may be unacceptable, a key consideration for a trial judge is whether the anticipated prejudice is amenable to adequate reduction or elimination by judicial direction. Recognising that there are some offences that, by their offensive or repellent nature, make the elimination or adequate reduction of prejudice by judicial direction practically impossible, the system of criminal trial by jury must proceed on the supposition that jurors will follow the directions that are given to them. So much was made clear by Gleeson CJ in Gilbert:[26]
The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one - accused, trial judge or member of the public - could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials. ...
45 It will be remembered that, when refusing to sever charge 8, the judge acknowledged that there was some prejudice flowing to Le Huynh by reason of the 'label' prohibited. The judge made clear that he would not hesitate to sever charge 8 if he thought that 'there was a danger of that overwhelming the proper consideration of the issues'. He considered that it was centrally important for the jury to make an assessment of Sheppard's evidence, and he could not see any unacceptable danger of the jury 'engaging in some impermissible process' to assist them by 'using' the word 'prohibited'. The judge considered that the risk of prejudice could be addressed by 'a very firm direction'.[27]
46 In the seminal case of Demirok, the Court made the following observations as to how an appellate court should approach a challenge to a trial judge's failure to sever a charge (or charges):[28]
The ordering of separate trials of different counts in a presentment is a matter within the discretion of the trial Judge. Usually, though not necessarily, (R v Downey, [1910] ArgusLawRp 66; [1910] VLR 361, at pp. 366-7) the application is made before the trial itself has started, and in the present case the application was made before arraignment and the empanelling of the jury. At this point in the trial the knowledge available to the judge of the course which the trial is likely to take is based upon the depositions, and, unless counsel for the accused volunteer further information, the depositions alone. ...
When the judge's exercise of his discretion comes to be challenged in an appellate court, the trial has been completed and the appellate court has the advantage of knowing how in the end it was conducted. This circumstance means that any review of the judge's discretion has unusual qualities. If it can be shown that the judge made an error in the exercise of his discretion the appellate court will nevertheless not put the judge's decision aside and substitute a different view of its own unless, in the event, it considers that the course of the trial constituted a miscarriage of justice. Conversely, if the decision of the trial judge was made on correct grounds and was in itself a decision which the appeal court would consider to be unimpeachable, it may nevertheless appear that developments at the trial were such as to constitute a miscarriage of justice. In the latter case, the ground of appeal taken no doubt should not be the ground that the trial judge's discretion miscarried, but simply that because of the course of events which developed during the trial, the nature of the trial constituted such a miscarriage.
47 Quite clearly, in this case his possession (and use) of the pistol was highly relevant to the other charges against Le Huynh. Sheppard claimed that Le Huynh struck him to the head with it, causing him injury. Under cross-examination by counsel for Le Huynh, Sheppard said that having been struck with the gun he was 'scared'. Further, according to Sheppard's evidence, Le Huynh retained possession of the firearm when others assaulted him in Le Huynh's presence. And when Le Huynh's accomplices took Sheppard on the quest to find money to satisfy the drug debt - whether or not it was in Phu Huynh's actual possession - one or other of the accomplices had the gun. Given Sheppard's evidence as to the use that the firearm was put, it cannot be doubted that the alleged kidnappers' possession of the firearm was relevant to charges on the indictment beyond charge 8. Thus, for example, it would have been open to the jury to find that Sheppard's kidnapping was (at least to some extent) accomplished by the use of the firearm, and that Sheppard submitted to his continued detention because he had been cowed by the presence and use of the gun.
48 Hence, even had the judge severed charge 8, evidence of the possession and use of the firearm by Sheppard's alleged kidnappers would have remained highly probative of facts in issue. The firearm was inextricably linked to the other offences with which Le Huynh was charged.[29] In those circumstances, any prejudice that flowed to Le Huynh merely from his possession and use of the gun could not be said to be improper prejudice, since it was relevant and - subject to exclusionary rules (none of which were invoked) - therefore admissible in proof of the charges that he faced.
49 Despite the formulation of the ground of appeal, the real issue in the present case must therefore be whether the trial of an offence which has as one of its elements that Le Huynh was a 'prohibited person' contemporaneously with other charges created such unacceptable prejudice that his trial miscarried.
50 Section 5(1) of the Firearms Act 1996 provides: 'A prohibited person must not possess, carry or use a firearm'. Therefore, that an accused is a 'prohibited person' is an essential element of the offence which must be proved by the prosecution. The expression 'prohibited person' is defined in s 3(1) of the Act, and includes persons previously sentenced to imprisonment for five years or more for an indictable offence, in circumstances in which not more than 15 years have expired since the person finished serving the sentence.[30] And as formulated, charge 8 alleged that
Le HUYNH at Delahey in Victoria on the 15th day of May 2017 being a prohibited person did possess a firearm namely a silver handgun.
51 There can be no doubt that the expression 'prohibited person' is, as a matter of ordinary language, somewhat loaded (no pun intended). Even absent knowledge of the prescribed conditions that must be satisfied in order to bring a person within the statutory definition, the use of the adjective prohibited when used to describe a person is apt to provoke notions that the person so described is for some reason - unlikely to be a benign reason - forbidden or banned from possessing a firearm. It must therefore be acknowledged that the mere use of the 'label' prohibited in relation to an accused person has the potential to cause some prejudice to a jury in their consideration of charges joined with a charge of being a prohibited person in possession of a firearm.
52 At the risk of repetition, the judge acknowledged the potential for prejudice, but considered that it could be reduced or eliminated by strong directions. Thereafter, the judge repeatedly and forcefully directed the jury - including after the jury enquired as to the meaning of 'prohibited person' - that: first, there are a wide variety of circumstances in which a person may be prohibited; secondly, the element of 'prohibited person' did not fall for their consideration; thirdly, there was no issue as to whether that element was satisfied; fourthly, the element of 'prohibited person' was therefore irrelevant; fifthly, they should not speculate on what being a prohibited person may mean; sixthly, they must not use it in any way adverse to Le Huynh or any other accused; seventhly, they could not use the fact that the element of 'prohibited person' is satisfied in consideration of any other charge; and, eighthly, each charge must be considered separately.
53 As was observed in Demirok,[31] notwithstanding that an appellate court considers the trial judge's decision to refuse severance was unimpeachable, it may nevertheless appear that developments in the trial occasioned a miscarriage of justice. In such a case, the ground of appeal taken should not be that the trial judge's discretion miscarried,[32] but that, because of the course of events which developed during the trial, the nature of the trial constituted such a miscarriage.[33] In my opinion, however, the judge's repeated and forceful directions were sufficient to overcome any risk that the jury would impermissibly have been influenced in their consideration of the issues relevant to the other charges on the indictment by reason of the fact that they were joined with a charge having 'prohibited person' as one of its elements. Indeed, I consider that, even had the label 'prohibited person' been expunged from the trial, the jury would have produced no different result on charges 1, 3 and 5.
54 For these reasons, Le Huynh's application for leave to appeal against conviction cannot succeed.
55 I should add this. It is very unusual - although, as this case demonstrates, not completely unprecedented - for a charge of being a prohibited person in possession of a firearm to be tried with other offences. That is because - unlike the present case - an accused person's actual possession of a firearm is rarely challenged. In the overwhelming majority of cases, a charge of being a prohibited person in possession of a firearm results in a guilty plea, so that it is virtually unheard of - I have not encountered another case - that a jury is called upon to determine whether a person charged with the offence is a 'prohibited person' within the meaning of the Firearms Act 1996.
56 Axiomatically, if a person is charged with being a prohibited person in possession of a firearm under s 5(1) of the Firearms Act 1996, that he or she is a 'prohibited person' is an element of the offence of which the jury must be satisfied beyond reasonable doubt in order to convict. The accused must be arraigned on the charge in the presence of the jury panel,[34] and the empanelled jury must 'try the issues in the trial',[35] including that element of the offence. Although in a given case a judge might inform the jury that the element is not is dispute, and that by agreement the jury might find the element established, there simply is no lawful mechanism by which the element 'prohibited person' can be wholly withdrawn from the jury's consideration, or by which the expression 'prohibited person' can otherwise be edited out.
57 In a case where a person is charged with an offence under s 5(1), his or her status as a prohibited person is in most (if not all) cases unlikely to be the subject of any serious challenge. And usually, it will be a very simple exercise to determine whether a person falls within the definition (by reason, for example, of relevant prior convictions). But as the present case demonstrates, whenever a charge of being a prohibited person in possession of a firearm is tried by a jury alongside other offences, there is the potential for the accused to suffer prejudice, notwithstanding that there is no challenge to his or her status as a 'prohibited person'.
58 Given the potential for prejudice in a case such as this, it would be desirable for the legislature to consider reform of s 5(1), permitting the 'prohibited person' element (if challenged) to be determined by the trial judge, and for the indictment to be framed in such a way that the relevant charge is silent as to the 'prohibited person' element.[36] Were that to be achieved, the jury would be left to determine whether the accused possessed (or carried or used) an object, and whether that object fitted the statutory definition of a 'firearm' (if that be disputed).[37]
59 Phu Huynh was not charged with being a prohibited person in possession of a firearm. Indeed, of the five accused named on the indictment, only Le Huynh faced that charge. Notwithstanding that fact, Phu Huynh's counsel at trial purported to support Le Huynh's application to sever charge 8. And notwithstanding that Phu Huynh was not exposed at trial to any risk of conviction on a charge being a prohibited person in possession of a firearm, his counsel contended in this Court that he suffered a substantial miscarriage of justice as a result of the trial judge's refusal to sever that charge - faced only by his brother - from the indictment.
60 In my view, there is no risk whatsoever that the jury's consideration of the charges against Phu Huynh could have been influenced by the fact that his brother was alleged to be a 'prohibited person'. Any risk of prejudice to Phu Huynh's case - and it is difficult (if not impossible) to see any - would have been totally eliminated by the judge's directions.[38]
61 Phu Huynh's application for leave to appeal against conviction must fail.
62 In my opinion, neither of Phu Huynh's grounds on sentence - that the sentence is manifestly excessive and offends the principle of parity - has substance.
63 Phu Huynh was sentenced according to the following table:
64 So far as relevant, Le Huynh was sentenced according to the following table:[39]
65 In this Court, Phu Huynh's counsel submitted that the sentence imposed was manifestly excessive, in that it failed to give sufficient weight to delay and to Phu Huynh's: relative youth; personal history of hardship; limited criminal history; role in the offending (including the judge's finding that he had not handled the pistol); current stability and support; good prospects of rehabilitation; carer responsibilities towards his family (including his elderly grandmother); psychological difficulties; ocular prosthesis (and related vulnerability in prison).
66 As to parity, counsel submitted that there was 'only' one year and three months' difference between Phu Huynh's and his brother's total effective sentence, and six months' difference in their non-parole periods. The sentence on Phu Huynh, so it was submitted, failed to reflect his more limited role in the offending, and his more limited criminal history.
67 In his sentencing remarks, the judge found that Le Huynh was 'the instigator of the conduct' and 'played the leading role', and Glenn Nguyen, the third man convicted of kidnapping, was the principal 'gaoler'. The judge described Phu Huynh as a 'significant participant'; and, when discussing the 'fine qualities' reflected in various character testimonials, said that he
demonstrated a capacity for cruelty and the torment of another and a willingness to engage in serious criminality. Far from a considerate and responsible individual on that night, [he] behaved like a callous gangster and standover man.
68 The judge found that Sheppard 'was in grave fear throughout' and that the offending 'has had a serious impact upon him'. Some of the 'several very serious features' of the kidnapping included that a firearm - which 'may well have been loaded' - 'was used throughout'; Sheppard was 'held at gunpoint', 'was assaulted during the ordeal' - which 'lasted for approximately two and a half hours' and 'only ended because of the victim's escape' - and 'suffered injury'; there were 'at least six participants at different times'; and the demand 'was for a substantial amount of money', made 'in the context of an illicit drug debt', so that 'the victim must have been extremely concerned for his welfare and the consequences of non-payment of the debt'.
69 Turning to his personal circumstances, Phu Huynh's parents separated when he was aged 13 or 14 years. In his formative years he was exposed to his father's violence, alcohol abuse, gambling and instability. He has had no contact with his father for a number of years.
70 As a result of losing an eye as a child and having a prosthetic glass eye, Phu Huynh experienced feelings of great insecurity and rejection throughout his formative years. He was bullied and stigmatised. Phu Huynh's self-confidence was eroded, which over the years has been a source of depression, anxiety and alienation (particularly at school). A psychologist, Dr Aaron Cunningham, expressed the view that these experiences led to vulnerability and negative peer influence since he sought acceptance from people from whom he would not feel rejected.
71 Phu Huynh completed Year 11 at school. When aged 18 he was, the judge said, 'deeply affected' by the gaoling of his older brother for manslaughter. His imprisonment had 'a significant emotional and financial impact' on Phu Huynh and the entire family. Until recently, Phu Huynh had been a carer for his grandmother who suffers from Alzheimer's disease, assisting her with bathing, cleaning and translating.
72 The judge accepted that Phu Huynh had 'finer qualities' and had 'a reasonable work history'. His criminal record reveals, however, that he was placed on probation by the Children's Court in September 2011 for offences including affray and intentionally causing injury. In June 2014, he was placed on a community correction order ('CCO') by the Magistrates' Court for unlawful assault, criminal damage and failing to answer bail. A little over a year later, on 28 August 2015, he was convicted of affray, failing to answer bail and other offences, and was sentenced to a CCO of 12 months' duration. He breached that CCO, and, in proceedings for the breach on 24 October 2016, the CCO was confirmed.
All things considered, I find you have reasonable prospects of rehabilitation given the support you have from your partner, your mother, family and friends. I accept that you have tried to make positive changes to your life whilst on bail. You have been on strict bail conditions including a curfew since July of 2017. You are relatively youthful. The positive matters expressed on your behalf and through the testimonials would resonate more vibrantly if they were accompanied by remorse and contrition for your wrongdoing. You are not to be punished for contesting the matters at trial, I simply point out that the impact of the matters I accept on your behalf, going to the issue of rehabilitation, would have even greater effect if they sat within the context a plea exhibiting remorse and contrition.
74 In my view, having regard to the serious nature of the offending; Phu Huynh's role in it; his prior history of violence, and his prior convictions and appearances (including for failure to comply with a CCO); the individual sentences imposed on Phu Huynh for kidnapping and common assault, the total effective sentence produced by the order for cumulation and the non-parole period, cannot realistically be characterised as anything other than moderate. They certainly cannot be said to be manifestly excessive; that is, so outside the range of sentences open in the proper exercise of the sentencing discretion as to bespeak error.
75 In so concluding, I have not ignored the judge's view that Phu Huynh's prospects of rehabilitation are reasonable, or that he is 'relatively youthful'. But those factors could not, in the sound exercise of discretion, have led to a more lenient sentence than the one imposed. And I would add - given the prominence given to it in oral submissions - that I reject the specific contention advanced by his counsel that Phu Huynh will be more vulnerable in prison because of his prosthetic eye. Little or no objective support was offered for that contention, and his prior history of affray and other violent offending would seem to belie the notion that he is afflicted with any particular vulnerability because he has a glass eye.
76 When considering the purported disparity between Phu Huynh's and his brother's sentences, it is important to note that, on 22 July 2009, Le Huynh was sentenced to 11 years' imprisonment, with a non-parole period of seven years, for manslaughter and other offences.[40] He was released on parole on 28 June 2016. The offending on 17 May 2017 breached that parole, and the Parole Board cancelled his parole with effect from that date. As a result, Le Huynh was in custody from 17 May 2017 until being sentenced on 8 May 2019. At that time, he had approximately 11 months left on the 'parole sentence', which concluded in April 2020. Importantly, given the absence of any exceptional circumstances, s 16(3B) of the Sentencing Act 1991 required the sentencing judge to order that the sentence he imposed be served cumulatively with the parole sentence. But as the judge said:
The practical effect of applying totality is that I must moderate the sentence I impose so that the total sentence you [Le Huynh] face does not exceed the criminality encompassed by all of the sentences.
77 It seems plain that the application of the principle of totality in Le Huynh's case led to a moderation of the sentence imposed on him for the kidnapping and associated offences. In turn, I consider that application of the principle of parity meant that Phu Huynh was the beneficiary of the downward pressure on Le Huynh's sentence exerted by considerations of totality. So much, in my view, goes some way towards explaining the moderate nature of Phu Huynh's sentence.
78 Neither ground has been made out. Phu Huynh's application for leave to appeal against sentence must therefore be refused.
79 I agree, for the reasons given by Priest JA, that each application for leave to appeal should be dismissed. I also endorse Maxwell P's comments regarding the need for legislative reform in this area.
[1] His date of birth is 4 October 1988.
[3] Crimes Act 1958, s 18. The maximum penalty is 10 years' imprisonment.
[4] Crimes Act 1958, s 63A. The maximum penalty is 25 years' imprisonment.
[5] Common assault is an offence at common law. By virtue of s 320 of the Crimes Act 1958, the maximum penalty is five years' imprisonment.
[6] Firearms Act 1996, s 5(1). The maximum penalty is 10 years' imprisonment.
[8] At the outset of the hearing in this Court counsel for Phu Huynh abandoned a second ground that contended that the verdicts were unsafe and unsatisfactory.
[9] On 21 February 2019, the jury found co-accused Glenn Nguyen guilty of kidnapping. That same day, the jury also found co-accused Jorge Tuazon not guilty of kidnapping and false imprisonment, and found co-accused Robert Nguyen not guilty of kidnapping, false imprisonment and common assault.
[12] Emphasis added to this and following passages.
[13] Arico v The Queen (2018) 272 A Crim R 450 ('Arico').
[14] GAS v The Queen [1998] 3 VR 862, 881 ('GAS').
[15] Ryan v The Queen [1982] HCA 30; (1982) 149 CLR 1, 22.
[17] (1881) LR 6 App Cas 229, at pp 244-245.
[18] GAS, 881-2 (emphasis in original).
[19] R v Barrell and Wilson (1979) 69 Cr App Rep 250, 252-3 (Shaw LJ).
[20] Dragojlovic v The Queen [2013] VSCA 151; (2013) 40 VR 71, 115 [196] (Redlich and Weinberg JJA, and Bell AJA) (citations as in reported version). In that case, the Court considered Rule 2 of the Presentment Rules in the Sixth Schedule to the Crimes Act 1958.
[21] R v Barrell and Wilson (1979) 69 Cr App Rep 250, at 252-3.
[22] R v Collins [1996] 1 Qd R 631, at 636; R v Kray [1970] 1 QB 125, at 130.
[23] R v Kray [1970] 1 QB 125, at 131.
[24] R v Reid [1999] VSCA 98; [1999] 2 VR 605, 621 [162]-[164] (Winneke P, Buchanan and Chernov JJA).
[25] R v TJB [1998] 4 VR 621, 630-1.
[26] Gilbert v The Queen (2000) 201 CLR 414, 425 [31]. See also R v Dupas [2010] HCA 20; (2010) 241 CLR 237, 248. But also see, for example, R v Halliday [2009] VSCA 195; (2009) 23 VR 419, 439 [81] (Buchanan, Ashley and Weinberg JJA), a case in which the jury had inadvertently been supplied with an accused's prior convictions. The Court considered that judicial directions to be incapable of overcoming the attendant prejudice.
[28] R v Demirok [1976] VicRp 19; [1976] VR 244, 251 (Young CJ, Lush and Crockett JJ).
[29] Arico, 466 [71] (Maxwell P and Weinberg JA). See also 503 [284] (Priest JA).
[33] See also Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469, at 479-81 [26]-[32]; Andelman v The Queen [2013] VSCA 25; (2013) 38 VR 659, 677-8 [85] (Maxwell P, Weinberg and Priest JJA).
[37] In Arico, the indictment originally contained eight charges, including three charges of extortion, one charge of intentionally causing injury (and a charge of recklessly causing injury in the alternative), one charge of trafficking in not less than a large commercial quantity of a drug of dependence (methylamphetamine), one charge of being a prohibited person in possession of a firearm (charge 7) and one charge of possessing a drug of dependence (1,4-Butanediol) (charge 8). Charge 7 related to a firearm and ammunition found in a Vespa motor scooter, and charge 8 related to a quantity of drugs found in the same scooter. Prior to a jury being empanelled, counsel for the applicant sought severance of charges 7 and 8 from the other charges on the indictment, and the exclusion of any evidence concerning the applicant's possession of the pistol and ammunition (and the 1,4-Butanediol), on the trial of the other six charges. The judge indicated that he thought it appropriate to sever charge 7, being a prohibited person in possession of a firearm, because to prove that the applicant was 'a prohibited person would be to put effectively such bad character evidence before the jury that it would prejudice his case'. Following that indication, the prosecution filed over two fresh indictments. Two trials were then conducted, the first relating to the extortion, injury and trafficking charges, and the second relating to the firearm and possession charges. Notwithstanding the effective severance of the charge of being a prohibited person in possession of a firearm for the purposes of the first trial, however, the judge permitted evidence of the applicant's possession of the firearm to be led in support of the extortion and other charges. See Arico, 489-90 [242]-[246], 491-2 [249]-[250].
[39] Le Huynh also pleaded guilty to possessing a drug of dependence, methamphetamine, on another indictment, for which he was sentenced to six months' imprisonment. Further, on 12 April 2019, he pleaded guilty to the related summary offences of being an unlicensed person storing ammunition in an insecure manner (charge 9) and dealing with property suspected to be proceeds of crime (charge 10), for which, respectively, he was fined $500 and was sentenced to three months' imprisonment.
[40] See DPP v Huynh & Ors [2009] VSC 291 (Kaye J).
Huynh
The Queen [2020] VSCA 222
(1982) 149 CLR 1
(2013) 40 VR 71
(2000) 201 CLR 414
(2010) 241 CLR 237
(2009) 23 VR 419
(2012) 246 CLR 469
(2013) 38 VR 659