Ip v The Queen [2020] VSCA 211

3 In April 2019, Kao appealed his sentence to this Court. The sentences on the proceeds of crime charges were held to be manifestly excessive and were reduced, resulting in a lower total effective sentence. The non-parole period was reduced to 6 years and 6 months.

4 The applicant now seeks leave to appeal against his sentence on two grounds: first, that his sentence is manifestly excessive for essentially the same reasons that Kao's sentence was found to be manifestly excessive; and second, on the basis of parity, that the resentencing of Kao resulted in insufficient differentiation between their sentences.

5 The respondent concedes that the applicant should be granted leave to appeal, and that the appeal should be allowed, on ground 2. She further concedes that the applicant should be resentenced so as to restore the original sentencing relativities between himself and Kao.

6 That was, in our view, a proper concession to make in the circumstances. We will make orders accordingly. The applicant will be resentenced to a total effective sentence of 8 years and 5 months' imprisonment, and we will set a non-parole period of 5 years.

The circumstances of the offending[1]

7 Between 1 March and 18 March 2016, Kao dealt with $567,138 across several transactions. These transactions were in the nature of transfers to Chinese or Hong Kong bank accounts, cash deposits into Kao's ANZ account and a cash withdrawal (charge 1 - Kao).

8 Between 10 March and 17 March 2016, the applicant dealt with $200,000. This involved him depositing two separate sums of $100,000 into his account and then transferring the amounts to an unknown account (charge 4 - applicant).

9 On 29 March 2016, Kao and the applicant boarded a flight to Sydney, where they checked in to a hotel. That evening they boarded an overnight train from Sydney to Melbourne. The following morning, they were stopped and searched by uniformed police. Kao was found in possession of $206,950 and the applicant was found with $150,050. A search conducted the same day at their address located $15,065 and a money counting machine (charge 2 - Kao; charge 5 - applicant).

10 On 20 April 2016, police executed a search warrant at the applicant and Kao's address. Police located a consignment of 200 glass vials which had been consigned to a Mr Leung and collected by him at the post office on 13 April 2016. Mr Leung had been engaged by Kao to collect the shipment and had delivered it to the applicant on 14 April 2016.

11 Originally, each vial contained liquid methamphetamine (1.4234 kg with 36.8 per cent purity). The consignment of vials had been intercepted by police, however, and the methamphetamine replaced with an inert substance. The total quantity of pure methamphetamine was 523.8 gm.

12 Police located a consignment of noodle packets, also addressed to Mr Leung. The consignment contained 55 packets, in which was found a total quantity of pure methamphetamine of 1.826 kg (charge 3 - Kao; charge 6 - applicant).

13 The applicant was sentenced in the County Court as set out below:

Dealing with money reasonably suspected of being proceeds of crime

Commence 18 February 2025 (8 months cumulation on charge 6)

Dealing with money reasonably suspected of being proceeds of crime

Commence 18 August 2025 (4 months cumulation on charge 4)

Attempt to possess a commercial quantity of a border controlled drug

13 years' imprisonment with a non-parole period of 9 years

Dealing with money reasonably suspected of being proceeds of crime s 400.9(1) Criminal Code (Cth)

Commence 18 April 2026 (1 year cumulation on charge 3)

Dealing with money reasonably suspected of being proceeds of crime s 400.9(1) Criminal Code (Cth)

Attempt to possess a commercial quantity of a border controlled drug

15 years' imprisonment with a non-parole period of 11 years

15 On 11 April 2019, this Court found that the sentences imposed on Kao for the offences of dealing with money reasonably suspected of being the proceeds of crime were manifestly excessive.[2] Kao was resentenced to a total effective sentence of 10 years and 5 months' imprisonment and a non-parole period of 6 years and 6 months, as set out below:

Dealing with money reasonably suspected of being proceeds of crime

Dealing with money reasonably suspected of being proceeds of crime

Attempt to possess a commercial quantity of a border controlled drug

14 years and 9 months' imprisonment with a non-parole period of 10 years and 9 months

16 The applicant contends that the sentences imposed on him on the proceeds of crime charges are manifestly excessive, for essentially the same reasons as the corresponding sentences imposed on Kao were held to be manifestly excessive.[3] The applicant submits that, when compared against the maximum penalty of three years and in light of the mental element that permissibly and properly falls within the offence charged, the sentences imposed are outside the range reasonably open to the judge.

17 The applicant also contends that the convergence between the sentences which resulted from the resentencing process ought to be corrected. He argues that the proper approach in such a case is as set out by this Court in Tregenza v The Queen. That is, although this Court is not obliged to restore the original relativity between the sentences,[4] the matter should be approached:

on the basis that the distinction drawn by [the judge] between the co-offenders should be maintained, in the absence of some identifiable error or further fact which necessitates a different course. [5]

18 Counsel for the respondent conceded that the lack of differentiation between the sentences consequent upon the resentencing of Kao could not be justified. The appeal should therefore be allowed and the applicant resentenced so as to restore the sentencing relativities established by the sentencing judge. As a result, there was no need to determine ground 1.

19 This appeal illustrates how the resentencing of one co-offender can give rise to a parity complaint from another co-offender. As the respondent properly concedes, the applicant is entitled to a restoration of the sentencing relativities between the offenders arrived at by the sentencing judge, who had the benefit of hearing the pleas of both offenders at the same time.

20 As the parity principle requires, the judge carefully considered the similarities and differences between the offenders and between their respective offences, in order to determine what the appropriate sentencing differential should be. Relevant differences included the fact that Kao's offending was more serious and that Kao had recruited the applicant.[6] Both the applicant and Kao had similar factors going to mitigation, including pleading guilty at an early stage, low risk of reoffending and no criminal history.[7] At the time of the offending, the applicant was 25 years old and Kao was 22 years old.[8] Taking these matters into consideration, the sentencing judge imposed a longer sentence on Kao in total and for each offence.

21 The reduction in Kao's sentence on appeal resulted in his receiving a similar sentence to the applicant for charge 1 and a lower sentence than the applicant on charge 2. In other words, the original sentencing differential - which properly reflected the similarities and differences between the two - was eliminated. The resultant lack of differentiation between them could not be reasonably justified.[9]

22 In our respectful opinion, the judge's approach to relativity was carefully considered and well founded. There is no suggestion of error. The original differential should therefore be restored.

23 In the circumstances, there is no need to determine ground 1. We would grant leave to appeal and allow the appeal on ground 2. We will set aside the original sentence and resentence the applicant as follows:

Dealing with money reasonably suspected of being proceeds of crime

Commence 18 February 2025 (3 months cumulation on charge 6)

Dealing with money reasonably suspected of being proceeds of crime

Commence 18 June 2025 (2 months cumulation on charge 4)

Attempt to possess a commercial quantity of a border controlled drug

12 years' imprisonment with a non-parole period of 8 years

[1] The circumstances of offending are a brief summary of the prosecution opening which was tendered on the plea of the applicant and Kao.

[2] Kao v The Queen [2019] VSCA 84, [72]-[74] (McLeish and T Forrest JJA).

[3] Ibid [65]-[72] (McLeish and T Forrest JJA).

[4] Tregenza v The Queen [2015] VSCA 163, [41] (Redlich, Weinberg and Osborn JJA).

[6] DPP v Kao and Ip [2017] VCC 1169, [23], [60], [66] (Judge Tinney).

[9] Nipoe v The Queen [2020] VSCA 137, [38]-[40] (Maxwell P, Niall and Emerton JJA); Topal v The Queen [2019] VSCA 289, [21]-[24] (Maxwell P and Niall JA); Sharp v The Queen [2018] VSCA 327, [48]-[54] (Maxwell P and Niall JA).