Quy Nguyen v The Queen [2017] VSCA 127

1 On 5 August 2016, following pleas of guilty, the appellant was convicted of one charge of cultivating a commercial quantity of a narcotic plant (cannabis L) and one charge of theft.

2 On 8 August 2016, the appellant was sentenced by Judge Mullaly to an aggregate sentence of three years and three months' imprisonment with a non-parole period of two years.

3 The appellant now appeals that sentence pursuant to leave granted by Santamaria JA on the ground that:

The aggregate sentence imposed was manifestly excessive in view of the objective seriousness of the offending. In particular the appellant's role was confined to minding the crops.

4 The maximum penalty for the cultivation offence is 25 years' imprisonment.[1]

5 The maximum penalty for the theft is 10 years' imprisonment.[2]

6 In essence the appellant submits first that the characterisation of his role in the cultivation operation in issue was a critical sentencing consideration, and secondly, that because he was no more than a crop sitter the sentence can be seen to be manifestly excessive when regard is had to current sentencing practice.

7 In order to evaluate these submissions it is necessary first to say something about the background facts.

8 On 23 November 2015, police executed a search warrant at a property in Yarram and discovered a substantial hydroponic cannabis installation.

9 The property contained both a house and a large rear shed. All 11 rooms of the house had been adapted to grow cannabis, as had the shed.

10 The house had been boarded up to prevent casual observation of the operations within it.

11 Artificial lighting and a variety of other equipment had been installed to allow the plants to be grown indoors.

12 The electricity meter had been bypassed to allow electricity to be taken from the mains network without charge. This founded the basis of the theft charge.

13 A total of 307 cannabis plants at various stages of growth were located within the various rooms at the premises. The plants had a total weight of 77.87 kilograms. A commercial quantity is 25 kilograms or 100 plants or more.[3]

14 The appellant was found lying under covers on a mattress in the kitchen area of the house. He was arrested and cautioned before being taken to the Sale Police Station where he was interviewed with the assistance of a Vietnamese interpreter and gave no comment answers. After being charged and remanded in custody, he entered an early plea of guilty.

15 It was ascertained that he had been involved in crop sitting for approximately two and a half months.

16 The sentencing judge made the following observations about the objective seriousness of the offending:

Given the considerable efforts and the expenses involved in setting up this indoor horticultural enterprise, the plants in each room were strong and healthy. The photographs tendered on the plea reveal this. The yield of useable drug was likely to be very high. These were plants at various stages of growth, indicating that the harvest would be planned to be regular, providing ongoing cash flow. All the features found in this house and shed are common with suburban houses and country houses that have been converted into cannabis production houses. Crime is hard to detect and [it is] even harder to establish who are the main players in the cannabis production and distribution chain.

Product grown by the cultivators has serious adverse effect on many users and the community bears a great cost as entrepreneurial cannabis cultivators profit significantly. The entrepreneurial cultivators have for some time sought to avoid their own detection by having vulnerable individuals mind the crops. The 'crop sitters' as they have become known, ensure that the equipment continues to operate. Also, they provide, it would seem, from time to time, a degree of security for the crop. But most importantly, they keep the entrepreneurs at arms-length from the crop while it grows to a saleable product.

When the sitters are arrested with the crop, as is the case here, it seems the entrepreneurs often avoid detection.

You Mr Nguyen were a crop-sitter, and will be sentenced as such. I emphasise that. Whichever way, however, this is looked at, the gravity of the offending is clear. This was a significant operation worth a large amount of money, and the crop-sitter plays an important role.

Your counsel said that you were staying at the house from time to time, and that you had met a man at the Footscray market who said he had work paying $300 per week. It was said that you received four payments of cash put in a letterbox. There is no further information provided about this person that made the offer to you.[4]

17 At the time of the offending, the appellant was 21 years old. He had come to Australia from Vietnam on a student visa in 2012 but did not undertake any successful studies. His student visa was cancelled in November 2015.

18 The appellant's parents and siblings remain in Vietnam and as a result his imprisonment will involve a period of substantial isolation with no family support.

19 Furthermore, although the appellant had undertaken some English language study before coming to Australia, his English skills are not particularly good.

20 He has however successfully completed a series of courses whilst in prison prior to sentence, including an English as a second language course.

21 The sentencing judge accepted that the appellant's pleas of guilty were indicative of remorse.

22 The judge also took into account the appellant's youth and the fact that he had no prior convictions.

23 He accepted that prison would be harsher for the appellant than for the average prisoner because of lack of support within this country.

24 On the other hand, the judge took into account the maximum penalty for the offence (25 years) and observed that deterrence was of primary importance given the prevalence of the offence. He noted that the theft of the electricity was substantial and required a penalty additional to that imposed for the cultivation.

25 Counsel for the appellant submitted that the role of the appellant was more significant to assessing the gravity of the offending than the weight of the drugs in issue and that decisions such as that in Nam Son Nguyen v The Queen[5] demonstrated that characterisation of the appellant's role was fundamental to the assessment of the appropriate penalty.

26 In R v Wong, the High Court made clear[6] that it is an error to attribute chief importance to the weight of the drug in fixing the sentence for drug offences and distinguishing between offenders. It may be that the offender's relative role in an enterprise is of greater importance.

27 In Nam Son Nguyen v The Queen,[7] Redlich JA (with whom Tate and Whelan JJA relevantly agreed) demonstrated that current sentencing practice had failed adequately to distinguish the significance of a higher role such as principal or organiser in the range of penalties imposed for different instances of the offence now under consideration.

28 Nevertheless, the underlying principle must be that the objective gravity of the offending falls to be determined by reference to all the facts of a particular case.

29 The necessity of broadly characterising the role of an offender in this type of context was rejected by the High Court in R v Olbrich.[8] Gleeson CJ, Gaudron, Hayne and Callinan JJ stated that:

It is understandable that, in order to promote consistency in sentencing, appellate courts, when expressing views about sentences for drug offences, have sometimes categorised the role of an offender, where it is known, in a scheme of importation or distribution. Similarly, sentencing judges who are dealing with several co-offenders may consider such categorisation relevant in differentiating between individuals. However, the utility of such an exercise is necessarily limited by the extent to which the material facts are known. What may be a convenient shorthand method of describing facts of particular cases should not be elevated to an essential task to be undertaken in every case, regardless of whether it is possible or appropriate.[9]

... a distinction between 'couriers' and 'principals' may prove a useful shorthand description of different kinds of participation in a single enterprise. And it may be that in the circumstances of a particular case, different levels of culpability might be identified by adopting those terms. But this was not such a case. Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a 'courier' or a 'principal' must not obscure the assessment of what the offender did.[10]

30 Thus a finding that an offender was not a principal or organiser may not prevent the conclusion that the offending involved a significant participation in a criminal enterprise.[11]

31 In the present case, the operation in which the appellant was involved was a very substantial one involving a sophisticated and extensive set up; the incidental theft of a substantial quantity of electricity; an ongoing personal participation over a period of two and a half months; and the production of more than three times the threshold level required for a commercial quantity of cannabis.

32 Whilst it is true that the evidence did not establish that the appellant had more than a modest financial interest in the outcome of the operation, nevertheless the offending was serious for the reasons identified by the sentencing judge.

33 It was also open to the judge to form the view that the maximum penalty of 25 years' imprisonment stipulated for the cultivation offence was informed by the need for general deterrence and that the prevalence of the form of the offending involved in this case gave rise to greater sensitivity in this regard.

34 In particular, this was so because of the prevalent use of young persons with vulnerable immigration status to undertake the role of crop sitter or minder.

35 The consequential buffering from detection of the organisers or principals of the scheme was also correctly identified by the sentencing judge as an additional factor bearing on the importance of general deterrence. The Sentencing Advisory Council Report of March 2015 entitled Major Drug Offences Current Sentencing Practices notes that there is a particular incentive for this kind of business structure where the statutory offence categories and the relevant maximum penalties are based on the quantity of narcotic plants cultivated.[12]

36 It follows that the characterisation of the appellant's role as that of a crop sitter does not of itself displace the need to look at the circumstances of the offending as a whole and to weigh competing sentencing considerations in determining an appropriate outcome.

37 Ultimately the appellant's case was put by reference to considerations of current sentencing practice. Before turning to that issue in more detail, it is desirable to mention two preliminary matters.

38 First, insofar as the appellant's sentence was an aggregate sentence, it is apparent that the theft of electricity may be regarded as justifying the lesser component of the sentence involving cumulation in the order of three months. Conversely, it may be inferred that the greater part of the sentence related to the cultivation charge.[13]

39 Secondly, it is convenient to repeat the following propositions emphasised by French CJ, Keane and Nettle JJ in R v Pham:

(1) Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently**.**

(2) The consistency that is sought is consistency in the application of the relevant legal principles**.**

...

(4) Such consistency is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form**.**

(5) For that and other reasons, presentation in the form of numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases is unhelpful and should be avoided**.**

...

(7) Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.[14]

40 Although formulated in the context of federal drug offences, these propositions are equally applicable to the present case.

41 Further, as their Honours went on to reaffirm,[15] a sentence does not itself give rise to a binding precedent. Sentencing decisions in comparable cases must be had regard to as 'yardsticks' that may serve to illustrate (although not define) the possible range of sentences available.

A court must have regard to such a decision in this way unless there is a compelling reason not to do so, which might include where the objective circumstances of the crime or subjective circumstances of the offender are so distinguishable as to render the decision irrelevant, or where the court is persuaded that the outcome itself in the other court was manifestly excessive or inadequate.[16]

42 The relevant principles were again summarised in R v Kilic:[17]

Section 5(2)(b) of the Sentencing Act 1991 (Vic) required Judge Montgomery, and the Court of Appeal, to have regard to 'current sentencing practices'. The evident purpose of that requirement is to promote consistency of approach in the sentencing of offenders.[18] Consideration of 'current sentencing practices' will include, where appropriate, the proper use of information about sentencing patterns for an offence.[19] The requirement of currency recognises that sentencing practices for a particular offence or type of offence may change over time reflecting changes in community attitudes to some forms of offending. For example, current sentencing practices with respect to sexual offences may be seen to depart from past practices by reason, inter alia, of changes in understanding of the long-term harm done to the victim. So, too, may current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations.

Their Honours in the Court of Appeal observed, correctly, that examination of cases of causing serious injury by fire may provide a relevant 'yardstick'[20] by which a sentencing court can attempt to achieve consistency in sentencing and in the application of relevant sentencing principles but that the requirement to have regard to the sentences imposed in those cases does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences must be passed;[21] rather the range of sentences imposed in the past may inform a 'broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle'.[22]

The submission by reference to the Sentencing Advisory Council Report

43 In the first instance, the appellant's submissions concerning current sentencing practice were put by reference to the Sentencing Advisory Council Report of March 2015 to which I have already referred. That report analysed sentences between 2008-2009 and 2012-2013 by reference to a role classification scheme:[23]

• principal/proprietor;
• house sitter - an offender who manages cultivation premises on behalf of more senior personnel; and
• ancillary role - an offender who performs menial tasks such plant watering and rubbish removal but is not described as a house sitter.

44 Two hundred and ninety-two cases involving the cultivation of 25 kilograms to 80 kilograms or 100 to 320 plants of cannabis L were identified.[24]

45 The analysis showed two clusters of sentences. Cluster one principally involved offenders in house sitting and ancillary roles. It included cases in which a series of other factors bearing on the gravity of the offending (in particular the length of the offending) and the characteristics of the co-offender favoured a lesser sentence.[25]

46 The median sentence imposed was a term of imprisonment for two years.[26] The longest term of imprisonment imposed was four years and three months.[27]

47 The appellant submits that this analysis supports the inference that the sentence imposed upon him was manifestly excessive.

48 There are two problems with this submission. First, the statistics in issue are of the general kind which was rejected in R v Pham[28] as unhelpful.

49 Secondly, a median of the type identified could not found the inference which is suggested. It is derived from cases which include lesser ancillary offending at one extreme and also includes in the range sentencing which is heavier than that now in issue.

50 The observations of Gaudron, Gummow and Hayne JJ in Wong v The Queen are apposite:

Further, to attempt some statistical analysis of sentences for an offence which encompasses a very wide range of conduct and criminality (as the offence now under consideration does) is fraught with danger, especially if the number of examples is small. It pretends to mathematical accuracy of analysis where accuracy is not possible. It may be mathematically possible to say of twenty or thirty examples of an offence like being knowingly concerned in the importation of narcotics where the median or mean sentence lies. But to give any significance to the figure which is identified assumes a relationship between all members of the sample which cannot be assumed in so small a sample. To take only one difficulty, why were the highest and lowest sentences set as they were? Do they skew the identification of the median or the mean? The task of the sentencer is not merely one of interpolation in a graphical representation of sentences imposed in the past. Yet that is the assumption which underlies the contention that sentencing statistics give useful guidance to the sentencer.[29]

51 In the alternative, the appellant drew attention to the analysis of sentencing decisions in Nam Son Nguyen v The Queen[30] and Kieawkaew v The Queen.[31]

52 Ultimately, the argument focussed upon four cases - R v Tabone;[32] R v Pajic;[33] Khoa v The Queen;[34] and Pham v The Queen.[35]

53 The appellant relied particularly upon the first three of these decisions and the respondent upon the last.

54 The appellant submits that when regard is had to these decisions they demonstrate that the sentence imposed upon him was inconsistent with current sentencing practice and manifestly excessive. There are four underlying difficulties confronting this submission:

(a) the sample is self-evidently a small one;

(b) none of the sentences imposed are to be understood as necessarily reflecting the upper limit of what might reasonably have been imposed in the particular case;

(c) the sentences relied upon do not necessarily reflect current understanding of all the sentencing factors bearing on the judge's discretion (including the particular need for general deterrence reflected in the judge's reasons); and

(d) there are particular features of each case which may be regarded as distinguishing them from the present case and the judgment as to the extent to which their circumstances are in fact comparable to those before the Court is one of fact and degree.

55 I turn then to the individual cases upon which argument centred.

56 In Tabone,[36] following pleas of guilty, a total effective sentence of three years and two months' imprisonment with a non-parole period of 19 months was imposed in respect of one charge of trafficking cannabis L, one charge of cultivating cannabis L in a commercial quantity and one charge of theft of electricity. The individual sentence upon the cultivation charge was three years' imprisonment, whilst a co-offender was sentenced to four years' imprisonment in respect of the same cultivation enterprise. Nettle JA (with whom Vincent JA and King AJA agreed) accepted that the appellant was not the principal of the enterprise.[37] His Honour found further that the sentencing judge was correct to conclude that the applicant knew that he was involved in a commercial enterprise and that he was involved in it for personal gain, namely the satisfaction of a longstanding drug habit. His Honour also concluded that considerations of parity did not justify a reduction in Tabone's penalty.

57 The case involved two sets of premises but only 135 plants as against 307 plants in the present case.

58 Moreover, the facts as a whole in the present case demonstrate that the operation in which the appellant became involved was one of at least equivalent sophistication and overall extent to that under consideration in Tabone.

59 Tabone was 47 years old at the time of offending and suffered from poor health.

60 There was no complaint of manifest excess in Tabone and the penalty imposed does not support the view that the sentence in the present case was manifestly excessive.

61 In Pajic,[38] the offender was sentenced, following a plea of guilty, to three years' imprisonment on one charge of cultivation of a commercial quantity of cannabis L and nine months' imprisonment on one charge of theft of electricity resulting, after partial cumulation, in a total effective sentence of three years and three months' imprisonment with a non-parole period of two years.

62 A hydroponic system had been installed in five rooms of Pajic's home at the instigation of two other men. The other men had also set up an electricity bypass. Pajic was instructed how to tend to the crop. Pajic was to receive $1,000 per plant and was given $2,500 to cover expenses.

63 At the time of Pajic's arrest, the house contained 15 near-mature plants and 15 smaller plants. Evidence was given that the dried material would have yielded an amount of 33 kilograms of cannabis.

64 Pajic was a 61 year old man of prior good character.

65 The Court of Appeal held that the sentencing judge had undervalued Pajic's plea of guilty and failed to give adequate weight to a number of other factors including Pajic's prior good character and prospects of rehabilitation. But, in the course of his reasons, Redlich JA expressly stated that he was not satisfied that the sentence imposed at first instance was manifestly excessive.[39]

66 The Court re-sentenced Pajic to two years and three months' imprisonment on the cultivation charge and six months' imprisonment on the theft charge. Partial cumulation resulted in a total effective sentence of two years and six months' imprisonment with a non-parole period of one year and three months.

67 Once it is recognised that the present case involves a larger scale of operation with a very substantially greater number of plants and that the Court in Pajic held that the original sentence was not manifestly excessive, it is difficult to regard this decision as supporting the appellant's case.

68 In Khoa,[40] the offender was sentenced at first instance, following a plea of guilty, to two years and three months' imprisonment with a non-parole period of one year and three months on one charge of cultivation of a commercial quantity of cannabis L. A co-offender also pleaded guilty and was sentenced to seven months' imprisonment. Khoa had recruited the co-offender to act as a crop sitter. Khoa occasionally supervised her and took possession of the harvested crop but otherwise had a limited role in the enterprise.

69 The offending involved a single property set up with a hydroponic system and an electrical bypass. The total weight of cannabis L seized was 31.5 kilograms.

70 The co-offender had co-operated with authorities, had health issues and no prior convictions. Khoa had also co-operated with authorities (although the value of such co-operation was less). Khoa had a prior conviction for possession of drugs and a controlled weapon.

71 The Court of Appeal (Weinberg and Kyrou JJA) concluded that, given the similarities in the applicant's and co-offender's mitigating circumstances, the marked disparity in their sentences was not justified. Khoa was re-sentenced to one year and six months' imprisonment with a one year non-parole period. In re-sentencing, the Court expressly stated that the sentence imposed by the judge on Khoa was not manifestly excessive and that the sentence imposed on the co-offender was 'merciful'.[41]

72 It can be seen that the weight of the cannabis in issue in the present case is more than double that which was cultivated in Khoa and significantly more in terms of proportional excess above the threshold for a commercial quantity. Moreover, the present case is not one in which the appellant made any offer of assistance to investigating authorities. While some aspects of the appellant's personal circumstances can be compared fairly directly with those of Khoa, the case does not provide a direct comparator because of these significant differences.

73 In Pham,[42] the offender was initially sentenced to three years and six months' imprisonment with a non-parole period of 24 months following a plea of guilty to one charge of cultivation of cannabis L and one charge of theft. No cumulation was ordered with respect to the sentence of four months' imprisonment imposed in respect of the theft. Pham was arrested in a motor vehicle at an address where police located an 'extensive and elaborate hydroponic set-up' served by an electrical bypass. A total of 378 plants were found. They were of varying size but well short of maturity. Pham had acted as a crop sitter for eight days and had not received any payment.

74 At the time of sentence, Pham was 25 years old. She had come to Australia after completing a university degree in Vietnam. At the time of offending, her residence had become illegal. She had no prior convictions and her father suffered from a terminal illness.

75 On appeal, Pham's sentence was reduced to two years and nine months' imprisonment with a non-parole period of 19 months. The Court of Appeal was satisfied that the sentencing judge had reached a conclusion with respect to the extent of the reward which Pham expected which was not open on the evidence.

76 If the theft component is notionally dis-aggregated from the sentence in the present case, it can be seen that the sentence for cultivation of cannabis is directly comparable to that imposed on Pham.

77 Despite some differences in the nature of the offending (not all of which are favourable to the appellant) and in the personal circumstances of the offenders, Pham's case may be regarded as broadly comparable to that of the appellant. The sentence imposed in Pham's case does not assist the appellant.

Conclusion with respect to current sentencing practice

78 When regard is had both to the underlying difficulties with the appellant's argument which I have identified above and to the limited extent to which, upon analysis, the cases referred to can be said to support the appellant's submission, they do not satisfy me that this Court should conclude that current sentencing practice demonstrates that the sentence imposed in the present case was manifestly excessive.

79 In reality, given that the maximum penalty for the cultivation offence is 25 years' imprisonment, the differences between the sentence imposed upon the

appellant and the outcomes in the cases upon which the appellant relies are within a relatively small band. The outcome in each case is explicable by reference to differing circumstances and the sentence imposed upon the appellant provides no basis for inferring that the sentencing judge erred in principle. It cannot be said that the sentence arrived at was plainly unjust or not reasonably open to his Honour.[43]

81 I have had the advantage of reading, in draft, the reasons of Osborn JA. I agree that the appeal should be dismissed.

82 I have had the benefit of considering the judgment of Osborn JA in draft. I agree, for the reasons his Honour gives, that the appeal should be dismissed. While I think that the aggregate sentence is firm, I am not persuaded that it is manifestly excessive.

[1] Drugs, Poisons and Controlled Substances Act 1981 s 72A.

[2] Crimes Act 1958 s 74.

[3] Drugs, Poisons and Controlled Substances Act 1981 s 70 and sch 11 pt 2.

[4] DPP v Quy Nguyen (Unreported, County Court of Victoria, Judge Mullaly, 8 August 2016) [5]-[9] ('Reasons').

[5] (2016) 311 FLR 289.

[6] [2001] HCA 64; (2001) 207 CLR 584, 609 [69]-[70] (Gaudron, Gummow and Hayne JJ).

[7] (2016) 311 FLR 289.

[8] [1999] HCA 54; (1999) 199 CLR 270.

[11] Anh Tuan Nguyen v The Queen [2017] VSCA 100 [21] (Redlich, Weinberg and Osborn JJA).

[12] Sentencing Advisory Council of Victoria, Major Drug Offences Current Sentencing Practices (2015) 25 [4.39].

[13] No complaint was made that the sentencing judge had failed to give adequate reasons for aggregating the sentence in accordance with s 9(3) of the Sentencing Act 1991, as to which see DPP v Felton [2007] VSCA 65; (2007) 16 VR 214, 229 [46]; R v Wong [2007] VSCA 278; (2007) 178 A Crim R 192.

[14] [2015] HCA 39; (2015) 256 CLR 550, 559 [28] (citations omitted).

[17] [2016] HCA 48 [21]-[23].

[18] Sentencing Act 1991 s 1(a).

[19] See and compare Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 591-3 [6]-[12] (Gleeson CJ), 605-8 [57]-[66] (Gaudron, Gummow and Hayne JJ); Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 536-7 [53]-[54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); R v Pham [2015] HCA 39; (2015) 256 CLR 550, 559-60 [28]-[29] (French CJ, Keane and Nettle JJ).

[20] Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1, 71 [304] (Simpson J, quoted with approval in Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 537 [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). See also R v Pham [2015] HCA 39; (2015) 256 CLR 550, 560 [29] (French CJ, Keane and Nettle JJ). Another 'yardstick' is the statutory maximum: R v Hoar (1981) 148 CLR 32, 39 (Gibbs CJ, Mason, Aickin and Brennan JJ). See also Sentencing Act 1991 s 5(2)(a).

[21] Director of Public Prosecutions (Vic) v OJA [2007] VSCA 129; (2007) 172 A Crim R 181, 196 [30]-[31] (Nettle JA, Ashley and Redlich JJA agreeing at 206 [71], [72]).

[22] Kilic v The Queen [2015] VSCA 331 [48].

[23] Sentencing Advisory Council of Victoria, Major Drug Offences Current Sentencing Practices (2015) 15 [3.22].

[28] [2015] HCA 39; (2015) 256 CLR 550.

[29] [2001] HCA 64; (2001) 207 CLR 584, 608 [66].

[30] (2016) 311 FLR 289.

[31] [2016] VSCA 269.

[32] [2006] VSCA 238; (2006) 167 A Crim R 18 ('Tabone').

[33] [2009] VSCA 53; (2009) 23 VR 527 ('Pajic').

[34] [2015] VSCA 80 ('Khoa').

[35] [2013] VSCA 169 ('Pham').

[36] [2006] VSCA 238; (2006) 167 A Crim R 18.

[38] [2009] VSCA 53; (2009) 23 VR 527.

[40] [2015] VSCA 80.

[42] [2013] VSCA 169.

[43] R v Pham [2015] HCA 39; (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ), 568 [56] (Bell and Gageler JJ); R v Kilic [2016] HCA 48; (2016) 91 ALJR 131, 140-1 [36].