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[2021] VSCA 59
General information, not legal advice.
Court of Appeal (Vic)
2021-03-17
Ferguson CJ, Beach JA
Original judgment source is linked above.
DPP v Nguyen (Unreported, County Court of Victoria, Judge Allen, 6 December 2019)
CRIMINAL LAW - Sentence - Appeal - Application for leave to appeal - Trafficking drug of dependence in a large commercial quantity - Sentence of 10 years, with non-parole period of 7 years and 6 months - Manifest excess - Whether sentence manifestly excessive - Manifest excess not reasonably arguable - Parity - Co-offenders sentenced in respect of larger quantities of drugs - Different roles of offenders - Different background circumstances - Different circumstances of offending - Parity complaint not reasonably arguable - Application refused.
1 The applicant pleaded guilty in the County Court of one charge of trafficking in a drug of dependence in a large commercial quantity. The maximum term of imprisonment for that offence is life. On 6 December 2019, following a plea hearing, the applicant was sentenced to a term of imprisonment of ten years, with a non-parole period of seven years and six months.
2 Some days earlier, on 25 and 26 November 2019, the judge who sentenced the applicant sentenced six of the applicant's co-offenders as follows:
Trafficking in a drug of dependence large commercial quantity
1. Trafficking in a drug of dependence large commercial quantity
2. Importing a marketable quantity of a border controlled drug
Charge 1: 8 years, with a non-parole period of 6 years
Charge 2: 30 months to commence on the completion of the non-parole period in charge 1
Total effective sentence of 8 years and 8 months, with a non-parole period of 7 years
Trafficking in a drug of dependence large commercial quantity
Trafficking in a drug of dependence large commercial quantity
6 months, together with a community correction order of 4 years
1. Importing a marketable quantity of border controlled drug
Charge 1: 2 years to commence on completion of a non-parole period for charge 2, with a recognisance release order for 6 months
Charge 2: 4 years and 6 months, with a non-parole period of 3 years
Total effective sentence of 5 years, with a non-parole period of 3 years and 6 months
1. Trafficking in a drug of dependence large commercial quantity
2. Possess a traffickable quantity of unregistered firearms
Charge 2: 1 year with 6 months' cumulation on charge 1
Total effective sentence of 7 years and 6 months, with a non-parole period of 4 years and 6 months
3 The applicant now seeks leave to appeal on the following proposed grounds:
1. The sentence is manifestly excessive.
2. The sentence is manifestly disparate.
4 The applicant was a member of a group of offenders who were the subject of an investigation (Operation Seadragon) conducted during 2016 and 2017 by detectives of the Victoria Police drug taskforce. The offenders were related to one another in a number ways, by reason of the various forms of drug trafficking in which they were involved at a variety of levels. The members of the group who were identified as being actively involved in the trafficking of drugs in Victoria included the applicant, Lo, Yen, Khiem, H Nguyen, Ostojic and Marchei. The judge concluded that Lo and the applicant were the most active members of the group.
5 The Crown case against the applicant was as follows. Between 9 November 2016 and 28 January 2017, the applicant trafficked in two drugs, fluoroamphetamine and methylamphetamine. The drugs had a combined weight of not less than three kilograms. The aggregate large commercial quantity threshold was one kilogram.
6 The applicant was involved, with others: first, in arranging the transportation of fluoroamphetamine from Sydney to Melbourne; secondly, in his receipt of a significant quantity of that fluoroamphetamine after the first delivery of that product to Melbourne; and thirdly, in the manufacture of methylamphetamine.
7 The applicant's involvement in the manufacture included, amongst other things, participating in the purchase of the precursor chemical, 1-chloro-1-phenyl-2-methylamino-propane, known as 'chloro' or 'pseudo', and the transportation of four kilograms of that substance from Sydney to Melbourne for the purpose of his co-offenders manufacturing the drug in Melbourne.
8 The evidence also showed that, as a result of the last of several 'cooks', or episodes of manufacturing methylamphetamine, in January 2017, at least 650 grams of methylamphetamine was produced by a co-accused, Le, at the applicant's request and encouragement.
9 In relation to the fluoroamphetamine, the evidence revealed that Lo, with the assistance of H Nguyen, brought approximately 12 kilograms of that substance to Melbourne on 10 November 2016. Between 10 and 13 November 2016, the applicant had various discussions with Lo, with a view to purchasing at least one kilogram of the drugs from her. The applicant agreed to purchase one kilogram for $7,000. Ultimately, the applicant received at least one kilogram of the drug.
10 The applicant was also a party to discussions about having found a purchaser who may have offered, or who did offer, to pay $20,000 per kilogram for the fluoroamphetamine that the applicant was proposing to buy. While it was not clear from the evidence whether that transaction ever proceeded, it was clear from the evidence that the applicant stood to make a profit of some $13,000 from that sale if it had proceeded.
11 In relation to the second aspect of the applicant's conduct, namely the manufacture of methylamphetamine, the evidence revealed that there were at least three separate 'cooks' of that product by the applicant's criminal associates. In November 2016, a cook was completed by Yen, and subsequently sold. Similarly, a further cook took place in early December, with the applicant's knowledge and with encouragement, on the part of Yen. Later again in December, after the 'chloro' had been obtained, a further cook took place.
12 In late December 2016, the applicant travelled to Sydney and met Lo, Yen and others. During that trip, the applicant was arrested by the police in Sydney and charged with the possession of one kilogram of the 'chloro'. He was released on bail in relation to that matter. It was a condition of his bail that he not leave that State. The applicant breached that bail condition by returning to Victoria, and he further breached his bail by continuing to offend in Victoria, by being involved in the ongoing manufacture of methylamphetamine as described above.
13 The applicant was eventually arrested on 28 January 2017. He was interviewed on 28 March 2017 and made a 'no comment' record of interview.
14 The judge commenced his reasons for sentence by observing that the offence to which the applicant pleaded guilty occurred during a period of a little over two and a half months.[1] He then noted that the applicant 'admitted some prior convictions', the most significant of which was in May 2007, when he was convicted of cultivating a narcotic plant in a commercial quantity and sentenced to be imprisoned for 2 years and 8 months, with a non-parole period of 18 months.[2]
16 In the course of describing the applicant's offending, the judge said that the applicant's breach of bail, by returning to Victoria and continuing his offending, was an aggravating feature of the applicant's misconduct.[5] The judge also said that it was important to note that the applicant had been convicted and sentenced to a term of imprisonment of 6 months as a result of violent offending he had committed in early 2016 against Lo. Lo had previously been the applicant's de facto partner.[6]
17 Next, the judge observed that the applicant's plea of guilty was a late one, occurring after a contested committal and a number of directions hearings and mentions in the County Court.[7] However, the judge said that he regarded the plea as a significant matter, which entitled the applicant 'to a significant discount' - the plea having saved the expense of a long and complex trial.[8]
18 The judge then referred to what he described as a large number of documents that had been tendered on the plea. These included:
19 Next, the judge set out, in some detail, the applicant's personal circumstances.[10] In summary, at the time of sentencing, the applicant was divorced with three adult children. He grew up in a small rural village in Vietnam, escaping with his family at the age of 12. He spent seven years in a refugee camp in Hong Kong, which the judge accepted involved considerable hardship.[11] He arrived in Australia as a refugee, aged 19, in 1996. He worked hard in various jobs, before '[falling] into the grip of serious drug addiction'.[12]
20 For periods of time, the applicant was the sole parent of his children, while also providing ongoing financial support for his family in Vietnam. In 2011, he returned to Vietnam to provide support for his father who, by then, had suffered a serious stroke. After the collapse of a business the applicant started in Vietnam, he began to abuse ice more frequently, and eventually became addicted to it.[13] At the beginning of 2015, he developed a relationship with Lo. In February 2016, he discovered that a person with whom he suspected Lo was having an affair, was also living with her. He lost control of his emotions, acted out angrily and became violent - leading to the six month term of imprisonment to which we have already referred.[14]
21 The judge dealt, in some detail, with the report of Ms Nguyen.[15] Ms Nguyen diagnosed the applicant as suffering 'a significant anxiety and depressive symptoms', as well as 'severe amphetamine abuse disorder according to the DSM-5 criteria' at the time of the offending.[16] The judge accepted that the applicant was suffering from these disorders at the time of the offending. He also accepted that a combination of the applicant's drug abuse and underlying depression and anxiety contributed to the applicant 'making poor judgments'.[17] The judge accepted, 'to some moderate level', that this reduced the applicant's moral culpability. He said, however, that given the level of the applicant's activity, its duration and the amount of drugs involved, any moderation of the applicant's culpability 'must be very limited'.[18]
22 The judge also took into account the fact that the applicant had remained drug free in the three years leading up to sentencing, and that he had 'done everything [he] could have done whilst on remand to demonstrate that [he was] serious about rehabilitating [himself]'.[19] The judge concluded that the applicant had conducted himself as a model prisoner, having undertaken 'every course possible' and having been 'promoted to a position as a senior billet'.[20] The judge said that these matters stood to the applicant's credit, were relevant in assessing the applicant's prospects of rehabilitation, and were also relevant in determining the maximum sentence and minimum non-parole period.[21]
23 The judge accepted a concession made by the prosecutor that the applicant's culpability was 'significantly less' than Lo's culpability - Lo having been involved in trafficking larger amounts over a longer period of time.[22]
24 The judge again noted that the applicant's criminal conduct was committed over a period of 2½ months, 'and not six months or a year or two years'.[23] He also observed that the offending involved three kilograms, 'not 30, or 300 or 3 tons'.[24] The judge then said while the offence of trafficking in a large commercial quantity encompasses a very wide range of circumstances, he would sentence the applicant on the basis that his offending was 'somewhere towards or within the lower range of offending for large commercial quantity trafficking'.[25]
25 The judge summarised the various mitigating factors (plea of guilty, genuine remorse and shame, personal circumstances, and diagnosable symptoms of anxiety, depression and amphetamine abuse disorder),[26] before turning to the applicant's motivation for the offending. The judge accepted that the applicant's motivation was not to become wealthy, but rather to solve financial problems and to feed his own serious drug habit.[27] The judge observed that, as far as large commercial quantities are concerned, the applicant's offending involved a relatively small amount, with an expectation of relatively minimal profit.[28] The judge observed that even the expectation of minimal profit was 'a complete failure', the evidence revealing that the applicant made nothing out of his criminal enterprise, 'but ended up even further in debt'.[29]
26 Next, the judge accepted that one of the matters which added to the applicant's burden of imprisonment was the fact of a possession case in New South Wales hanging over his head.[30] He also took into account that separation from the applicant's family, and his inability to care for them, would make imprisonment more burdensome than it would for other prisoners.[31] The judge referred again to the hardship the applicant would endure as a result of continuing to suffer from the symptoms identified by Dr Nguyen, saying that the existence of the diagnosed conditions would mean that the sentence to be imposed would weigh more heavily on the applicant than it would for a person of normal mental health.[32]
27 The judge then returned to the applicant's model behaviour while in custody, and his ongoing strong support in the community from his family - concluding that the applicant had 'excellent prospects of rehabilitation upon [his] release into the community having served [his] sentence'.[33]
28 Finally, the judge turned to the issue of parity and said:
Before announcing the sentence, I should say this: the question of parity of course looms large in these cases but it is important for me to emphasise that whilst the principles of parity have some weight and must be taken into account, it is important for the court to avoid any sense of injustice by way of disparity of sentencing. Nevertheless, there are significant differences from offender to offender in relation to their sentencing in these matters.
In particular, in relation to Ms Lo, there were, in her case, particular compelling matters in mitigation which were taken into account in arriving at the appropriate total effective sentence, and the appropriate minimum non-parole period.
There are also in your case significant matters which I have just enumerated, but your case is a very different [one] from hers and so there ought not be a strict comparison between sentences.[34]
29 Under proposed ground 1, the applicant contended that the sentence he received was manifestly excessive. In support of that contention, he made the following points:
(1) The head term of 10 years was a 'heavy sentence' having regard to the applicant's plea of guilty. The plea of guilty saved the community a lengthy trial, and also stood as a 'display of remorse'. It was submitted that there was 'undoubtedly genuine remorse in this case'. While the judge referred to these considerations, the actual sentence imposed did not reflect the significance of these factors.
(2) The applicant was 42 years of age, had been married twice and was the father of three children. He was a hardworking man, and this history was further recognised in his employment on remand. His prospects for rehabilitation were found to be excellent. It was submitted that a sentence of 10 years was of such a length that it failed to properly reflect these matters and the weight the judge himself purported to give them.
(3) There were a number of factors that the judge referred to which would make imprisonment more burdensome: the applicant's ill father in Vietnam; the ongoing emotional stress to his two sons; and the continuing nature of the applicant's own depression and anxiety. It was submitted that the judge appeared to have placed considerable weight on those matters, but this was not reflected in the sentence passed.
(4) The non-parole period of 7 years and 6 months was 'a heavy one in light of the applicant's excellent prospects of rehabilitation'. It was submitted that the personal circumstances of the applicant in custody, his remorse and family support were strongly mitigating (as the judge correctly found). It was contended that a disparity of only 2 years and 6 months between the head sentence and the non-parole period did not properly reflect the weight the judge felt those matters deserved.
(5) The sentence failed to properly reflect the judge's finding that the applicant's culpability was significantly less than that of Lo. In addition, the applicant's offending was motivated by the need to feed a serious drug habit 'raging at a time of financial and emotional vulnerability', as referred to by Dr Nguyen and apparently accepted by the judge. Moreover, the applicant's offending occurred over a relatively short period, and the 'whole exercise proved to be a complete failure'.
(6) A sentence of 10 years is more reflective of offending 'in the middle to higher order', than 'somewhere towards or within the lower range of offending for a large commercial quantity' as found by the judge.
30 In his written case in this Court in relation to proposed ground 2, the applicant noted that the amount of drugs involved in the offending of Lo, Khiem, H Nguyen and Yen was 'much higher than in the applicant's case'. The amount involved in trafficking is 'highly relevant' in sentencing for offending of this kind. It was submitted that because the amount of drugs trafficked by the applicant was considerably less than that trafficked by Lo, Khiem, H Nguyen and Yen, a significantly lesser sentence should have been passed on the applicant. The applicant also contended that there was 'an unjustifiable disparity in the respective ratios between the head terms and non-parole periods for [the applicant]', as against those passed upon Lo, Khiem and Yen. While the applicant accepted that the judge was alive to the principles of parity, he submitted that an objective analysis showed that his sentence was manifestly disparate with that passed on his co-offenders.
31 During the course of the hearing, counsel for the applicant refined the applicant's parity complaint to one involving the sentences imposed on Lo and Khiem and a subsequent sentence imposed on another co-offender, Tuan Pham ('Pham'). On 12 March 2020, Pham was sentenced, by the same judge who sentenced the applicant and the co-offenders to whom we have already referred, on one charge of trafficking in a large commercial quantity of a drug of dependence, one charge of trafficking in a commercial quantity of a drug of dependence and one charge of trafficking a drug of dependence.[35]
32 Following a trial in which he pleaded not guilty, Pham was sentenced to a term of imprisonment of 6 years for trafficking in a large commercial quantity (7.65 kilograms) of fluoroamphetamine. Having pleaded guilty, however, to the other two charges on the indictment (trafficking a commercial quantity of methylamphetamine and trafficking cocaine), Pham was sentenced to a total effective sentence of 9 years and 6 months, with a non-parole period of 6 years. The applicant submitted that the sentence of 6 years for the large commercial quantity drug trafficking charge (imposed after a trial) was impermissibly disparate with the applicant's sentence (imposed after a plea of guilty).[36]
33 The applicant submitted that there could be no possible rational explanation for Pham receiving a sentence of 6 years after a trial, and the applicant receiving a sentence of 10 years following a plea of guilty - albeit that Pham's total effective sentence was 9 years and 6 months.
34 During the course of argument, the applicant also submitted that the judge failed to give proper weight to the fact that the applicant is still facing a serious drug charge in New South Wales following the completion of his current sentence. It was submitted that those of his co-offenders who had offended in New South Wales had been dealt with for that offending as part of the sentences imposed upon them by the judge; whereas, the applicant risked a further term of imprisonment being imposed upon him in New South Wales for the offending for which he was bailed in late December 2016. This, it was said, exacerbated the parity problem.
35 In oral argument, counsel for the applicant also submitted that, whatever view one took of the applicant's head sentence, the non-parole period was too high as a proportion of the head sentence, when compared to the non-parole periods (as proportions of their respective head sentences) imposed in relation to Lo and Khiem.
36 In response to the applicant's contentions, the respondent submitted with respect to ground 1, that it was not reasonably arguable that the sentence imposed upon the applicant was wholly outside the range of sentencing options available to the sentencing judge. The offending was a serious example of large commercial quantity drug trafficking. The applicant was one of the two most serious offenders in the operation, and he had a relevant prior criminal history. Moreover, after being bailed for related drug offences in New South Wales, he breached that bail by travelling to Victoria and continuing his offending here. The sentence imposed upon the applicant fell within the range of sentences available to the judge.
37 With respect to ground 2, the respondent contended that the judge made an appropriate assessment of the criminality and circumstances of both the applicant and his co-offenders. When the personal circumstances of each offender and the circumstances of each individual's offending were properly understood, it was not reasonably arguable that there was any infringement of parity principles in the sentencing of the applicant.
38 In our view, there is no substance in the applicant's complaint that the sentence imposed upon him was manifestly excessive. There can be no doubt that the applicant's offending was a serious example of a serious offence - large commercial quantity drug trafficking. The seriousness of the offence is, as the judge said, borne out by the fact that it carries a maximum term of life imprisonment.
39 While there were a number of mitigating factors to be taken into account in arriving at an appropriate sentence for the applicant's offending, they did not demand some lesser sentence than that imposed by the judge. Moreover, it is plain from the judge's reasons for sentence that the judge carefully took into account all of the relevant mitigating matters. Having regard to the applicant's role in the offending, his prior conviction for cultivating a narcotic plant in a commercial quantity and the continuation of his offending after being bailed in New South Wales, it seems plain to us that the sentence imposed by the judge gave full weight to the various mitigating factors to which we have already referred. Ground 1 must be rejected. We turn now to ground 2.
As has been said before, equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a 'marked' or 'manifest' disparity between sentences which gives rise to a justifiable sense of grievance on an appellant's part, then the principle of parity may be said to have been infringed. However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in a way in which he or she did. Where an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way in which he or she did, the approach is relevantly analogous to that which arises when it is said that a sentence is manifestly excessive.[39]
41 As with the applicant's manifest excess complaint, the applicant's complaints about parity, when properly analysed, provide no justification for any reduction in his sentence. With the exception of Pham, the personal circumstances of the applicant's co-offenders, and the circumstances of their offending, were set out in detail in the judge's reasons for sentence delivered (as we have already noted) some days prior to the sentencing of the applicant.[40] Those reasons disclose that the judge gave careful consideration to all of the relevant circumstances of each of those offenders, and also of his or her individual offending. That the judge gave careful and detailed consideration to issues of parity in relation to each offender, is also amply demonstrated by the reasons he published, and the specific references to parity in them.[41]
42 There can be no doubt that the weight of drugs involved in drug trafficking and related offending is very significant. As has been said many times before, it is, however, only one of the many factors that must be taken into account and synthesised for the purpose of arriving at an appropriate sentence in an individual case. While the applicant is correct to identify the greater weights of drugs involved in some of his co-offenders' offences as being significant, his parity arguments fail to give any proper regard to the background circumstances of each offender, the actual circumstances of each offender's offence, and the roles played by each offender in his or her offending. As was said in the context of a similar Commonwealth offence,[42] the selection of the weight of a drug as the chief factor to be taken into account in fixing a sentence 'represents a departure from fundamental principle'.[43]
43 Again putting Pham to one side for a moment, the first point which differentiates the applicant from his co-offenders, Lo, Khiem, H Nguyen and Yen, is that the applicant's plea of guilty was found by the judge to be a late one; whereas the pleas of Lo, Khiem, H Nguyen and Yen were held to be early pleas.
44 While Lo's offending was objectively the most serious offending of the group, she had powerful mitigating factors not present in the applicant's case, including the provision of a witness statement which was on the brief of Pham, whose trial was, at the time of Lo's sentencing, yet to be held. Further, there were additional powerful mitigating circumstances concerning her separation from two young daughters (then aged 5 and 6) and the birth of her third child while on remand. Moreover, it is to be noted that, unlike the applicant, Lo had no prior convictions. Other mitigating factors included, what the judge described as Lo's 'tragic personal history', both in childhood and later life.[44]
45 In relation to Khiem, what we have said in reasons published today in the matter of Marchei v The Queen,[45] is sufficient to demonstrate amply the differences in circumstances between the applicant's offending and Khiem's offending so as to show that the judge made no parity error vis-à-vis Khiem and the applicant.
46 In relation to H Nguyen, the judge described hers as 'an exceptional case' - remarkable in several ways, including that her involvement in the trafficking to which she pleaded guilty was 'very limited'.[46] The judge described her as having experienced extreme hardship while in custody, related to an intellectual disability and dependent personality disorder, as well as 'serious immaturity, naivety and vulnerability'.[47] The judge was also moved to exercise mercy to H Nguyen, because of the fact that she had given birth while in custody, and had also been the subject of frequent bullying and harassment, having an IQ of 59 - which was of itself a reason for imposing a very different sentence on her compared to her co-offenders.[48]
47 In our view, H Nguyen's personal circumstances, and the circumstances of her offending, are in fact so different from the applicant's as to make any attempt at a parity analysis almost meaningless. As the judge said in sentencing her, there was 'a wealth of evidence establishing the extent to which [her] capacity to reason appropriately and appreciate the wrongfulness of [her] offending was significantly impaired'.[49] Plainly, it was this evidence (along with other evidence to which the judge referred) that caused him to exercise mercy in his sentencing of this offender.[50] No doubt it was these circumstances which caused the applicant to abandon his parity complaint in relation to H Nguyen in oral argument.
48 In relation to Yen, we have already noted the different roles of the applicant and Yen, and Yen's plea of guilty at an early stage. Moreover, contrary to the applicant's submissions the weight of drugs involved in Yen's offending appears to have been comparable to the weight of drugs involved in the applicant's offending - Yen's offending involving a purchase of four kilograms of 1-chloro-1-phenyl-2-methylamino-propane and an importation of 128 grams of methylamphetamine.
49 Having looked at the circumstances of Yen's offending (particularly his involvement with Lo and the applicant, described - as was said by the judge - as the two principal offenders) we are not persuaded that it is reasonably arguable that there was any breach of parity principles in the sentencing of Yen and the applicant. Again, no doubt it was these matters that resulted in the applicant abandoning his parity complaint in relation to Yen in oral argument.
50 Next, we are not persuaded that the fact that the applicant is yet to be dealt with in New South Wales for the offending for which he was bailed in late December 2016 gives rise to any parity issue. The submissions made by counsel for the applicant during the course of the hearing were largely speculative. Ultimately, the parity issues raised by the applicant fall to be determined by reference to the facts and circumstances of the offences for which the various co-offenders were sentenced by the judge, as well as the sentences imposed for those offences. In the event that the applicant ultimately falls to be sentenced by a court in New South Wales, no doubt that court will take into account the whole of the applicant's circumstances - including the offending for which he was sentenced in Victoria and the sentence he will have actually served for that offending.
51 As to the complaint about parity with Pham's sentence, it is sufficient for us to observe that the applicant was the second most active member of the various co-offenders who fell to be sentenced by the judge. By necessary implication, Pham was a less active member of the group. Additionally, while the applicant had a relevant prior conviction for cultivating a narcotic plant in a commercial quantity, Pham had no prior convictions.
52 Moreover, in our view, Pham's sentence was 'inappropriately low',[51] and acceptance of the applicant's arguments in relation to it would see his sentence reduced to a point where it was manifestly inadequate. While Pham's sentence cannot be ignored, we are not persuaded that the imposition of it some months after the applicant's sentence should found any relief at the suit of the applicant in this Court. Specifically, the applicant's sentence is already 'toward the bottom end of the range'.[52] Considerations of parity cannot permit it to be lowered further.[53]
53 Finally, there is no substance in the applicant's complaints about his non-parole period being a greater proportion of his head sentence than those imposed upon Lo, Khiem or Pham. Again, the individual circumstances of each of the applicant's co-offenders were carefully considered by the judge, and individual sentences tailored to meet those circumstances. A different judge may have been prepared to order a shorter non-parole period in respect of the applicant. That, however, is not the test. It is sufficient for us to say that, having considered all of the material fresh for ourselves, we are unpersuaded by the applicant's submissions that it was not open to the judge to fix the non-parole period he fixed in this case.
54 The application for leave to appeal will be refused.
[1] DPP v Nguyen (unreported, County Court of Victoria, Judge Allen, 6 December 2019), [1] ('Reasons').
[15] Ibid [43]-[45], [47]-[50].
[35] DPP v Pham [2020] VCC 257 ('Pham Reasons').
[36] Further detail in relation to Pham and his offending can be found in our reasons published this day in Marchei v The Queen [2021]VSCA 58 ('Marchei').
[37] [2021] VSCA 58 , [40].
[39] Ibid [12]. The Court referred to Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606; R v Postiglione [1997] HCA 26; (1997) 189 CLR 295; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462; Hilder v The Queen [2011] VSCA 192, [38]-[39]; Khoa v The Queen [2015] VSCA 80; McCloskey-Sharp v The Queen [2015] VSCA 87; Roujnikov v The Queen [2015] VSCA 97, [24]-[25]; Collins v The Queen [2015] VSCA 106, [23].
[40] DPP v Nguyen [2019] VCC 2004 ('Co-offender Reasons - Day 1'); DPP v Nguyen [2019] VCC 2005 ('Co-offender Reasons - Day 2'). When read in context, it is plain that the judge intended that the Day 2 Reasons were intended to be read with, and as following on from, the Day 1 Reasons.
[41] Co-offender Reasons - Day 1 [103]-[104]; Reasons [65]-[67].
[42] Being knowingly concerned in the importation of a commercial quantity of heroin, contrary to s 233B of the Customs Act 1901 (Cth).
[43] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 609 [70] (Gaudron, Gummow and Hayne JJ).
[44] Co-offender Reasons - Day 2 [148].
[45] Marchei [2021] VSCA 58.
[46] Co-offender Reasons - Day 1 [118].
[51] See Farrugia v The Queen [2011] VSCA 24; (2011) 32 VR 140, 147-8 [31].
[52] See DPP (Cth) v Peng [2014] VSCA 128, [36]; Topal v The Queen [2019] VSCA 289, [27]; Taleb v The Queen [2020] VSCA 329, [26]-[27].
[53] See also s 280(1) of the Criminal Procedure Act 2009.
Nguyen
The Queen [2021] VSCA 59
(1984) 154 CLR 606
(1997) 189 CLR 295
(2011) 244 CLR 462
(2001) 207 CLR 584
(2011) 32 VR 140