R v Luong, Nguyen & Cao [2005] VSCA 94

"It's open to me [to conclude] that she (i.e. Cao) was the obtainer of the substance from Sydney and that she presided over its distribution through her daughter, your other client, [Nguyen] who acted as the main wholesale distributor."

Counsel: "I don't take issue with your description of [Nguyen's] role."

Counsel took issue with his Honour's description of Cao as a "purchaser" of the heroin. Counsel was, however, prepared to describe her as the "keeper and the mixer". In amplification of Cao's role her counsel said:

"She receives the heroin, she presses the heroin, and then people like her daughter [Nguyen] and Ky come and collect that from her and they take it away."

"What I say her position ... is in terms of the evidence is this, she is the holder for distribution."

"As I said she certainly is that, she receives and she sells and receives money, that much the evidence shows."

9 In relation to the sentences which he submitted ought to be passed on the accused Cao, the accused Nguyen and the accused "Ky", counsel who represented them submitted that the sentences in respect of Cao and Nguyen "should not become double figures"; and that in relation to Ky "his role was 'to deliver' the heroin". Counsel conceded that Ky was a major courier of the substance between Cao and Nguyen on the one hand and Luong at the Housing Commission flats on the other. His role as such was terminated when he commenced dishonestly to appropriate drugs and/or money to himself.

10 In respect of Luong it was put to his Honour by counsel representing her, that the only proper punishment to be imposed upon her would be a term of imprisonment to be immediately served. His Honour noted that that would have to be so, because she had pleaded guilty to trafficking in a "commercial quantity" of heroin. Counsel also indicated that he concurred with his Honour's "analysis" that there was no doubt that "where Luong fits is as your Honour's described, she receives it from others and is involved in the process of selling it ... ."

11 At the end of the day, the sentencing judge imposed the following sentences (inter alia) upon the three applicants:

(i) Cao - 10 years with a non parole period of 7 years 6 months;

(ii) Nguyen - 9 years with a non parole period of 7 years; and

(iii) Luong - 8 years with a non parole period of 6 years.

His Honour also sentenced Ky (the other accused charged with trafficking in a "commercial quantity") to a sentence of 6 years with a non parole period of 4 years. The other 9 accused who stood for sentence before his Honour were all sentenced to periods of imprisonment ranging between 12 and 18 months for trafficking of lesser quantities; and it was ordered that various portions of those sentences be suspended.

The Appeal

12 As I have previously indicated only three of the persons who stood before his Honour for sentence have sought leave to appeal to this Court. They are the ones who received the heavier sentences from his Honour for trafficking "in commercial quantities"; namely Cao, Nguyen and Luong.

Nguyen

13 Mr. Tehan, who appeared for the applicant Nguyen in this Court, submitted that his Honour had made a fundamental error by concentrating his attention on what he described as the "hierarchical structure" of the operation rather than focussing on the moral culpability of the individual accused. This had led his Honour, so it was submitted, into imposing a sentence upon Nguyen which was so manifestly and wrongly disparate from the sentences imposed upon co-offenders as to amount to obvious error. In particular he submitted that, by concentrating on the "hierarchical structure" as distinct from "moral culpability of individual offenders" the sentence which was imposed upon Nguyen could be seen to be, particularly when compared with the sentence imposed upon Ky, manifestly excessive. It was submitted that his Honour had "blinkered" himself to an appropriate assessment of Nguyen's culpability by adopting the so-called "rigid hierarchical structure". Mr. Tehan referred us to a passage in the joint judgment of Gleeson, C.J., Gaudron, Hayne and Callinan, JJ. in the case of Olbrich v. The Queen[1], where their Honours said:

"We do not accept that the identification of the precise nature of the accused's involvement in her act of importation of prohibited imports is an essential aspect of the sentencing process.

It is understandable that, in order to promote consistency in sentencing, appellate courts, when expressing views about sentences for drug offences, have sometimes categorized the role of an offender where that is known, in a scheme of importation or distribution. Similarly, sentencing judges who are dealing with several co-offenders may consider such categorization 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 the facts of particular cases should not be elevated to an essential task to be undertaken in every case, regardless of whether that is possible or appropriate."

14 As I have said, Mr. Tehan submitted that the sentencing judge in this case had offended against the very principles outlined in the case of Olbrich and, in doing so, had failed to adequately assess the moral culpability of his client in comparison to the moral culpability of the other offenders charged with the same level of offending as Nguyen. Thus, so Mr. Tehan submitted, his Honour failed to ask himself such fundamental questions as "Why did Nguyen get involved in this operation?"; "Was it because of her propensity for gambling?"; "What effect will the sentence have upon her family, and particularly the young children?". Accordingly, so Mr. Tehan submitted, his Honour had guided himself by the process of "categorization" into failing to give sufficient weight to mitigating factors; and particularly to the fact that Nguyen was the mother of four young children.

15 For my own part I cannot accept these submissions. This was a sentencing exercise where his Honour was entitled, and indeed obliged, to have regard to the levels at which the various offenders fitted into the "hierarchy" in order to determine the level of their culpability - moral and otherwise. As I have already indicated, his Honour was not only sentencing the three applicants before this Court; he was sentencing 13 members of a rather elaborate heroin distribution organization. He entertained pleas on behalf of 13 accused who had pleaded guilty before him over a period of some four days, during the course of which he was taken through a large number of transcripts of telephone intercepts and listening devices; and had placed before him medical, psychiatric and psychological reports from Dr. Walton, the Northern Hospital and Dr. Christopher Wong in respect of the applicant Nguyen, psychological reports from Dr. Kennedy in respect of the applicant Cao; and psychiatric and medical reports from Dr. Walton and Dr.Pham in respect of the applicant Luong. It is therefore not surprising that his Honour, having outlined the part played by each of the prisoners in the enterprise, said that he found it unnecessary "to recount in any further detail the facts of the matter (because) they were on the transcript, the matter having been opened in ... detail by the learned prosecutor ... and also discussed in detail between myself and all counsel during a plea hearing lasting several days".

16 His Honour did, however, go on to discuss the respective roles played by the three applicants and "Ky"; the four persons who had pleaded guilty to trafficking in "commercial quantities" of heroin. In the course of doing so, he seems to me to have concentrated on their individual culpability demonstrated from the material of police observations, intercepts and listening devices. In this regard the "hierarchy", which his Honour perceived, was synonymous with involvement and culpability. It was patently apparent that the applicant Nguyen was heavily involved with Cao in organizing the distribution of heroin in accordance with orders taken, in ensuring that the heroin was of a satisfactory quality, and in arranging for delivery - mainly through "Ky" - to Luong and others; and in ensuring that prompt and appropriate payment was received. In some respects the level of Nguyen's involvement was itself demonstrated by the fact that the records of Crown Casino showed that in the year between May 1999 and May 2000, she had gambled hundreds of thousands of dollars at the Casino - a fact that indicated not only the level of her addiction to gambling, but also that the only trade in which she was involved (that of heroin trafficking) was the source of her gambling income.

17 Accordingly, I do not accept the proposition made on behalf of Nguyen that the sentencing judge failed to adequately determine the applicant's "moral culpability"; or that he failed to properly identify her moral culpability in relation to that of her co-offenders.

18 It was next submitted on behalf of the applicant Nguyen that his Honour had failed to adequately apply principles of parity, resulting in unjust disparity in the sentences given to Nguyen and, particularly, the sentence given to "Ky". Furthermore, it was submitted, although it seemed to me with less enthusiasm, that the sentence imposed on Nguyen was unjustly disparate from the sentence imposed upon Cao, who had been identified by the judge as the "ringleader".

19 Once again, I do not regard these submissions as having any proper foundation. The nine years maximum term given to the applicant Nguyen is to be compared with the six year maximum term given to the applicant "Ky". In my view, that level of disparity would not be regarded as unjustifiable in the eyes of the independent observer when one takes account of the different levels of involvement which were identified by his Honour. His Honour described the level of involvement of the applicant Nguyen, correctly in my view, as the main organizer of distribution of the heroin - both wholesale and retail. On the other hand, his Honour regarded Ky as the "senior runner" or courier delivering the heroin at the behest of Nguyen. His Honour was, in my view, entitled to differentiate the lesser role played by Ky in fixing the sentences which he did. The fact that Ky misappropriated some of the heroin, and/or the proceeds of its sale, is not relevant to assessing the respective roles of Nguyen and Ky.

20 Nor do I regard as "unfairly disparate" the sentences imposed upon Nguyen and Cao. Once again, Mr. Tehan submitted that it was the "adoption of the rigid hierarchical structure" which led to his Honour failing to have adequate regard to the differentiation of sentencing factors existing in respect of this applicant and Cao respectively. In my view, there is nothing in this submission. His Honour was of the view that there was very little difference in moral culpability between Cao on the one hand and Nguyen on the other. There is nothing in the material which was before his Honour which would indicate to me that he was in error in so regarding the respective offending.

21 Mr. Tehan submitted, in support of a further ground, that the judge had failed to give adequate weight to mitigating factors. In particular, he submitted, inadequate weight was given to the fact that the applicant was the mother of four children, one of whom was only 10 months old; and the others aged 11, 9 and 5 years respectively. He submitted that it was open to the sentencing judge to take into account in mitigation of the applicant's sentence the fact that Nguyen would be separated from her children for a number of years, but that he had failed to have regard to those matters. Furthermore, he submitted, the learned sentencing judge was informed that the father of the youngest child was a co-accused, Minh Tho Ly, and that if he also was imprisoned for any period of time (in fact he was sentenced to four months' imprisonment) the child would be deprived of both parents for that period. Mr. Tehan, in this regard, relied upon the decision of this Court in Carmody[2], where Tadgell, J.A.[3] referred to the common law principle that "hardship to a prisoner's family resulting from imprisonment [is] relevant only if exceptional circumstances are shown". His Honour went on to point out that he could not regard that case as one where exceptional circumstances had been shown but that, nevertheless, the Court could take into account material which was before it, demonstrating the "actual impact" which the applicant's incarceration had had upon her young son. His Honour said:

"We cannot act as though exceptional circumstances have been shown, for they haven't been shown. We can, however, show some mercy, tempering the wind to the shorn lamb. I think this is a case in which to do it."

His Honour referred to circumstances of other cases in which an amendment of sentence had been made on appeal so as to achieve the release of a prisoner to allow a "sick child or children" to be cared for. Mr. Tehan submitted that this Court should, in the circumstances of this case, "adjust" the sentence imposed upon the applicant Nguyen for similar reasons.

22 There was no basis upon which the sentencing judge could have applied this principle in favour of Nguyen. In the first place he was never asked to do so; and indeed he was told that at no stage had the applicant Nguyen enjoyed a "very stable relationship" with Minh Tho Ly. Indeed, his Honour was told that she did not live with Minh Tho Ly at all times but that their relationship was such that he would look after the children when he could. On other occasions, his Honour was told, the children were looked after by an older person who stayed with Nguyen's mother. Indeed, if anything, the evidence revealed that Nguyen was hopelessly addicted to gambling and spent much of her time indulging in that habit at the Crown Casino, no doubt in the absence of her children. It can, of course, be assumed that imprisonment of a single mother will cause hardship for the young family whom she leaves behind. But before that can become an influential sentencing factor, the situation must be so highly exceptional that it would, in effect, be inhuman to refuse to take it into account[4]. No evidence was put before his Honour to suggest that any such exceptional hardship would be caused in this case. Nevertheless, Mr. Tehan submitted that his Honour had failed to mitigate the sentence imposed upon Nguyen to take account of the fact that she had young children, the youngest of whom would probably be deprived of essential parental care for the period of any sentence of imprisonment imposed upon Minh Tho Ly, and would be separated from his mother for a number of years. That submission was based upon the fact that his Honour made no specific reference to the effect of separation of the applicant from her children in the course of his sentencing reasons. However, it cannot be assumed that his Honour imposed sentence ignorant of these facts. His Honour had before him a number of medical and psychological reports which referred in detail to the hardship which would be suffered by the applicant as a result of the enforced separation from her children. His Honour made it clear, during the course of his sentencing reasons, that he was familiar with these reports and had taken their content into account. But, as his Honour said, the offences committed by the applicant Nguyen were so serious that the principal sentencing factor had to be general deterrence, which, he correctly said, was "of considerable importance in a case of this nature". Accordingly, I do not regard this ground as having been made out.

23 It was next submitted that the learned sentencing judge had failed to give adequate weight in mitigation of sentence to the plea of guilty in circumstances in which the prosecutor had submitted that a trial of the matter would have taken some two years. Neither the sentencing remarks of his Honour nor the length of sentence imposed on the applicant suggest to me that this ground has been made out. His Honour specifically indicated that he had taken into account in favour of each of the applicants the early intimation of intention to plead guilty. Furthermore, the sentence which he imposed upon the applicant Nguyen does not indicate to me that his Honour had failed to give sufficient weight to that fact. Mr. Tehan called in aid a comment made by his Honour in the course of the plea hearing to counsel appearing for two of the "lesser offenders" in which his Honour had said that it was:

"... understandable and reasonable public policy that pleas of guilty per se, whether or not they showed remorse, should earn a discount in sentence because of the matters you raise. But that principle is not to be interpreted, that the longer the case would take the more you get". It is a principle of policy, public policy, that the discount is allowed and so it should be. But it seems to me that how long the Crown case takes, would have taken to prove it, does not add to the discount."

His Honour said that "that would be unfair to others". Mr. Tehan submitted that this statement revealed an error of approach on the part of his Honour. He submitted that it was an error for the judge to conclude that it was not open to him to apply "a substantial allowance" in mitigation of penalty for the plea of guilty in this case. He submitted that the case against the applicant and the co-accused was of considerable complexity and would have been extremely difficult to prosecute; and the cost to the community of such a trial would have been substantial.

24 Once again, I do not accept these arguments, which seem to me to be premised upon the fallacy that his Honour was bound to give a discount for the pleas of guilty proportionate to the likely length of the anticipated trial. It is clear from the terms of his Honour's sentencing remarks that he did take the pleas of guilty into account as a mitigating factor, on the basis that its "utilitarian value" had saved the community the time and cost of a trial[5]. That was what his Honour was by law required to do[6], and there is nothing in what he did or said which, in my view, is inconsistent with the remarks of the High Court in Cameron v. R.[7]. Furthermore, it seems to me to be a fallacy to suggest that this applicant's plea of guilty avoided a trial which would take "about two years". That time estimate was on the basis, as the prosecutor said, of the entire 13 people pleading not guilty. If the applicant alone had pleaded "not guilty", no doubt a trial of lesser dimensions and time would be contemplated. However, as I have already said, the judge made it quite clear that he was allowing a discount to the applicant for her plea of guilty, and there is nothing in the sentence imposed which suggests that he did not do as he intended to do; nor to indicate that the discount given was other than appropriate. I would accordingly reject this ground of appeal.

25 It was next submitted by Mr. Tehan that the sentencing judge had failed to give adequate weight "in mitigation of sentence" to the applicant's addiction to gambling. There was ample evidence before the judge to indicate that the applicant was "hopelessly addicted" to gambling, and indeed his Honour so found. As his Honour said during the course of his sentencing remarks:

"As I have already mentioned, some of you appear to have gambling habits and some, particularly you [Nguyen] clearly are addicted to gambling. There is, however, no other evidence before me on that subject. I have been told that your habits have changed but there is no evidence before me supporting that suggestion."

Mr. Tehan submitted that because the applicant's addiction to gambling was "the product of her fragile psychological state and history", she was "vulnerable to exploitation by others". He further submitted that the fact that the applicant was addicted to gambling was relevant to the circumstances of her "becoming involved in the offending" and her "moral culpability".

26 In the course of his sentencing remarks his Honour noted that a number of the accused persons standing before him for sentence had "gambling problems" and, in this regard, particularly singled out Nguyen. However, as his Honour said:

"I accept that as a cause for your behaviour, but I do not accept it as a mitigating factor to any significant extent."

In my view, his Honour was correct to so regard the matter of "gambling addiction". It is apparent from the words which he used that he did regard the addiction to gambling as a mitigating factor "to some extent" but that it could not loom large in the sentence to be imposed because of the very grave nature of the offending for which the applicant fell to be punished. This was, as his Honour noted, trafficking in heroin of a wide scale type, with the capacity to do enormous damage to the community. In those circumstances, his Honour was right to conclude that the applicant's gambling addiction could not figure largely as a factor of mitigation in the sentencing process. Whether or not an addiction to gambling can mitigate a sentence by reflecting upon the offender's "moral culpability " and the aspect of general deterrence will, as it seems to me, very much depend upon the nature of the crime and the circumstances of the offending. For my own part, the concept that an appropriate sentence for widespread heroin trafficking should be moderated by the prisoner's gambling addiction is not one which should loom large in the exercise of the Judge's discretion. It may be that crimes of dishonesty precipitated by gambling addiction will attract a different view (see Novak[8]); although the Court of Criminal Appeal in this State rejected the idea that Novak should become authority for the proposition that a gambling addiction reduced the relative importance of the element of general deterrence even in crimes of dishonesty. In R. v. Martin[9], Southwell, J. said (at page 257):

"As it seems to me there is no logical distinction to be drawn, so far as evidence of addiction is concerned, between the commission of an armed robbery to obtain funds to feed on the one hand an addiction to heroin and on the other an addiction to gambling. The same can be said where the offence is not that of armed robbery but a theft in breach of trust. In the latter type of case at least it would, in my opinion, be an unusual case where evidence of addiction to gambling will significantly reduce the importance of the element of general deterrence."

Similar views have been adopted by this Court in the cases of R. v. Chamberlain[10]; Limb[11]; Dawsan[12] and Pascoe[13]. In the case of R. v. Dawsan, I said, with the concurrence of Brooking, J.A. and Ashley, A.J.A.:

"In my view, it will be a rare case where a court will find that a person's gambling habit will be available to that person for the purposes of mitigating the sentence which would otherwise be appropriate."

It follows that in my view no error has been disclosed on the part of the judge in failing to give adequate weight in mitigation of sentence on account of the applicant's addiction to gambling. This ground cannot be made out.

27 It was next submitted by Mr. Tehan that the sentencing judge had failed to give adequate weight in mitigation of sentence to the psychiatric reports of Drs. Walton and Wong. It was submitted that these reports contained a number of matters relevant to the mitigation of sentence including the lack of "formal education" of the applicant, the circumstances in which she had departed Vietnam as a refugee; the fact that she had a history of drug addiction and had given birth to her first child at the age of 17; the fact that she had a history of depression which had led to an attempted suicide which required psychological treatment; her addiction to gambling and her vulnerable psychological condition. Mr. Tehan submitted that the learned sentencing judge did not sufficiently refer to these matters beyond recording the fact that the applicant was addicted to gambling and had a history of chronic depression. He submitted that in the circumstances it was safe to infer that the judge had failed to take all of these matters into account and had failed to accord them sufficient weight in mitigation of sentence. These matters were not strongly pressed on the appeal, and in any event, it is not open to submit that his Honour had failed to give proper attention to the medical and psychological reports as he specifically referred to them and said he had taken the matters contained in them into account. Finally, Mr. Tehan submitted that in all the circumstances the sentence imposed upon the applicant was manifestly excessive. For the reasons I have already given, I do not regard that proposition as having been made good. In my view, the sentence which his Honour imposed upon this applicant was well within the range of sentences available to him.

Cao

28 On behalf of the applicant Cao, Mr, Croucher, in this Court, submitted that the sentence imposed upon her was manifestly excessive taking into account her early plea of guilty, her prospects of rehabilitation, her age of 52 years, and her personal circumstances such as background and limited intelligence. In respect of the applicant's plea of guilty, Mr. Croucher adopted what Mr. Tehan had said and submitted that in this case the early plea of guilty had clearly facilitated the course of justice in the manner referred to by the High Court in Cameron's case (supra). That submission gets no better merely because it is a repetition of a submission made by Mr. Tehan which I have already rejected. It was put by Mr. Croucher that his Honour's statements, made in his sentencing reasons, that all the applicants were entitled to have the plea of guilty taken into account in their favour because:

"... the community has by your plea of guilty been spared the time and costs of a trial.," and that:

"In this case, that would appear to be a very significant saving indeed."

were overshadowed by his Honour's remarks during the course of the hearing of the plea to which I have already referred in disposing of the application of Nguyen (see paragraph [23]). For the same reasons which I gave when rejecting the ground of appeal taken by Mr. Tehan, I reject this ground as formulated by Mr. Croucher. There is, in my view, nothing to be found in the material which would suggest to me that his Honour failed to give other than proper weight to Cao's plea of guilty. Cao's complicity in this well-organized and huge heroin trafficking operation was greater than any of the other applicants who stood for sentence before the sentencing judge. This description of her role was accepted by counsel who appeared for her before his Honour. If the sentence imposed upon Nguyen cannot be seen to be manifestly excessive, it cannot be said, in my view, that the sentence upon Cao is manifestly excessive. Indeed, the sentence imposed, given the nature and magnitude of the criminal offending on the part of Cao, demonstrates, as did the sentence imposed upon Nguyen, that his Honour had - as he said he would - given an appropriate discount for the plea of guilty. Mr. Croucher submitted that the principles referred to by this Court in R. v. Duncan[14], and particularly the propositions formulated by Callaway, J.A. at pages 214-215, had not been reflected in the non parole period imposed, which was only 18 months less than the head sentence. Indeed, Mr. Croucher submitted that there was room in this case for this Court to adjust downwards the sentences of all applicants without interfering with the basic structure of his Honour's sentencing approach having regard to the fact that the sentences imposed upon them were well above the fourth highest sentence imposed upon Thanh Phong Tran ("Ky") of 6 years with a non parole period of 4 years. I reject these submissions. This case is far removed from that of Duncan, both as to the nature of the crimes committed and to the circumstances attending the plea of guilty. This was not a case where his Honour accepted that the plea of guilty indicated genuine remorse or, as was the case in Duncan, co-operation. Indeed, there was little co-operation given by the major offenders in this case and the structure of his Honour's sentences was calculated to draw a distinction in the gravity of offending, not only between the three applicants, but between them and the others who were now standing for sentence with them. As I understood the submissions made by Mr. Croucher on behalf of Cao, his major point was that his Honour had failed to give sufficient effect to the guilty plea and the personal circumstances of this applicant. It follows from what I have already said that I do not accept those submissions. A case was sought to be made on behalf of this applicant that she was so deficient in intellect that she did not really understand the magnitude of what she was doing. This was the essence of the opinion put before the Court by Dr. Kennedy on her behalf. However, his Honour did not accept that report and took the view that this applicant was well aware of the magnitude of her offending. It follows that I reject the proposition sought to be made on her behalf that her sentence was manifestly excessive; and, accordingly, I reject her application.

Luong

29 Mr. Holdenson, who appeared for this applicant, adopted the submissions made by Mr. Tehan and Mr. Croucher that insufficient weight had been given to the applicant's plea of guilty. For the reasons which I have already given, I reject that ground. Furthermore, Mr. Holdenson submitted that insufficient weight had been given by his Honour to the applicant's personal circumstances and the absence of any prior history. He put it that if ever there was a case for a discount in respect of the plea of guilty, this was it. The applicant, he said, was 38 years and with no prior convictions and greater weight should have been given to those circumstances in the sentencing process. Her personal circumstances, so it was submitted, demonstrated good prospects of rehabilitation. Those prospects, Mr. Holdenson submitted, had been accepted by his Honour but were not reflected in the sentence of 8 years' imprisonment with a non parole period of 6 years which, in his submission, was well outside the appropriate range.

30 I do not accept these submissions. Luong was a senior figure in the large-scale trafficking operation; in the sense that she organized the collection and distribution of heroin amongst the people at the Housing Commission flats. As this Court has frequently said, those who engage themselves in large-scale heroin trafficking operations must expect to receive heavy penalties; and it seems to me, contrary to the submissions of Mr. Holdenson, that the sentence of 8 years' imprisonment with a non parole period of 6 years, was well within the range of sentences available to his Honour. Certainly, it was not manifestly excessive. There is nothing in the sentence imposed which suggests to me that insufficient weight was given to the applicant's plea of guilty, or her prospects of rehabilitation.

31 In my view, these three applications should all be rejected.

33 I agree, for the reasons given by the learned President, that each of the three applications for leave to appeal against sentence should be dismissed.

[1] (1999) C.L.R. 270 at 277-8

[2] (1998) 100 A.Crim.R. 41.

[3] At page 45.

[4] See R. v. Wirth [1976] S.A.S.R. 291 at 296.

[5] The judge said:

"All of you have pleaded guilty. You are entitled to have that fact taken into account in your favour, and I do so. The community has, by your pleas of guilty been spared the time and cost of a trial. In this case, that would appear to be a very significant saving indeed."

[6] S.5(2)(e) Sentencing Act 1991.

[7] (2002) 209 C.L.R. 339 at 343.

[8] (1993) 69 A.Crim.R. 145 per Vincent, J.

[9] (1994) 74 A.Crim.R. 252

[10] Unreported, Court of Appeal, 23 May 1996.

[11] Unreported, Court of Appeal, 13 March 1997.

[12] Unreported, Court of Appeal, 27 May 1997.

[13] Unreported, Court of Appeal, 29 April 1998.

[14] [1998] 3 V.R. 208.