respondent. Each application for leave to appeal against sentence was dismissed.
Key principles
For the parity ground in these appeals, Nguyen's original sentence could not be treated as a continuing comparator because his conviction had been quashed and the sentence fell...
The sentences imposed on Tong, Ong and Vuong were consistent with the roles they played in the trafficking, and the Court was not persuaded that they fell outside the range...
A strong Crown case may be a relevant circumstance when assessing the degree of remorse demonstrated by a guilty plea.
The sentencing judge's mistaken attribution to Tong of a statement about future trafficking plans did not demonstrate that Tong had been sentenced for an offence outside the...
Issues before the court
Whether the applicants' sentences were unjustifiably disparate from Nguyen's sentence, engaging the principle of parity.
Whether Tong's sentence was disproportionate to the sentences imposed on Ong and Vuong, given their respective roles.
Whether the sentences were manifestly excessive or outside the available sentencing range.
Plain English Summary
The applicants received prison sentences for their guilty pleas to serious heroin-trafficking offences. They argued, among other things, that their sentences were unfairly different from Nguyen's. The Court said Nguyen's original sentence had ceased to operate when his conviction was quashed, and a sentence after retrial could not be assumed in advance. The Court considered the applicants' roles substantial, took account of the quantity and gravity of the trafficking and recognised mitigating circumstances. It found no basis to grant leave to appeal.
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Deep Dive
2,141 words · generated 28/09/2026
What happened
The Victorian Court of Appeal considered three applications for leave to appeal against sentence. The applicants were Ko Kon Tong, Dat Thinh Ong and Le Phan Vuong. They had pleaded guilty in the County Court to trafficking not less than a commercial quantity of heroin between 28 May and 3 August 1999. Buchanan JA delivered the principal reasons, with Vincent JA and Eames JA agreeing. The Court dismissed each application.
Whether the sentencing judge gave inadequate weight to Tong's guilty plea.
Cited legislation
No linked legislation citations have been extracted yet.
The sentences were not identical. Tong received 16 years' imprisonment with a non-parole period of 12 years. Ong and Vuong each received 12 years' imprisonment with a non-parole period of nine years ([2]). The charges concerned two consignments of heroin brought from China to Melbourne in June and August 1999 ([5]).
The Court described a supply arrangement in which Lao obtained heroin and sold it to Tong, who resold it to Nguyen. Tong was based at the Crown Casino hotel and relied on Ong and Vuong, a de facto couple living in Melbourne, for assistance. The sentencing judge found that Tong organised their activities and that their local knowledge was important to the enterprise. Ong recruited Nguyen, described as the principal purchaser from Tong ([8], [33], [54]).
The second consignment was intercepted in a motor vehicle controlled by the applicants. It comprised 20 blocks with a gross weight of 6.8494 kilograms and a pure heroin component of 4.363 kilograms. The judgment states that the commercial quantity was 250 grams, so the pure heroin in that consignment was about 17 times that quantity ([11], [57]). The Court treated the trafficking as grave and the applicants as participants in commercial transactions supporting distribution, rather than as mere couriers ([57]).
The parity argument arose from the position of Nguyen and Lao. They had been tried on a like charge, covering a longer period and three consignments, and were convicted. Lao received 21 years with a 17-year non-parole period, while Nguyen received 12 years with a nine-year non-parole period. Their convictions were later set aside and retrials ordered. At the time of these applications, they had not been retried ([14]). The applicants argued that their sentences were unjustifiably disparate from Nguyen's ([20]).
Why the court decided this way
The Court did not use Nguyen's original sentence as a fixed comparator. Its central procedural point was that Nguyen's sentence fell with his conviction. The judgment accepted that the former sentence could be relevant if he were convicted again, but expressly stated it was not a ceiling on a sentence after retrial ([23]). The Court also referred to the general proposition, drawn from R.H.McL v R, that a successful appellant ordinarily, but not invariably, should not receive a longer sentence after retrial. The possibility of a longer sentence remained open if the sentencing judge considered the original sentence manifestly inadequate ([23]).
The Court's application of that point was cautious. It would not proceed on the assumptions that Nguyen would be convicted again or that a sentencing judge would necessarily impose no more than his former sentence. A future sentence might be similar to those imposed on the applicants, or substantially lower because of Nguyen's personal circumstances or the circumstances of the offence for which he might be convicted ([27]). It also noted that a disparity apparent at first sight did not itself prove that the applicants' sentences were wrong rather than Nguyen's original sentence being too low ([27]).
The Court then assessed the applicants' respective roles. Tong described himself as a broker, but the Court rejected that as an adequate description: he bought heroin in his own right and resold it. The sentencing judge had characterised him as the organiser of Ong and Vuong's activities, while also finding that their contribution was essential ([33]). The Court considered that the sentences reflected their roles ([36]). It did not treat Tong's deference to Lao as diminishing his own importance. In the Court's view, Lao depended on someone performing Tong's function, and it was futile to try to draw a sharp distinction between the operational importance of Lao and Tong ([39]).
On excessiveness, the Court placed particular weight on the amount of heroin, the commercial nature of the offending and the applicants' substantial involvement in transactions that enabled distribution. It also recognised mitigation: the applicants were entitled to discounts for their guilty pleas, had previous good character, and Tong faced the hardship of imprisonment in Australia, away from his family and friends ([57], [60]). Having considered those matters, the Court was not persuaded that the sentences exceeded the available range ([60]).
The Court separately considered specific complaints. For Tong's plea, the timing assessment involved the time counsel was briefed, when legal aid funding was confirmed, the substantial volume of recorded evidence, and the time taken for the Crown to settle the appropriate count. The sentencing judge had not rejected the view that the plea was entered at the earliest practical opportunity. The Court was not persuaded that the plea's timeliness had been given inadequate weight ([66]).
A sentencing remark about future trafficking plans was based on a statement that the Court said was properly attributed to Tran, not Tong. The Court accepted that the attribution was erroneous, but concluded the reference had not added to Tong's sentence. It did not show that Tong had been sentenced for an offence outside the presentment ([69]).
The Court also rejected the suggestion that Tong's gambling had increased his sentence as an aggravating circumstance. It considered gambling relevant to the judge's assessment of the causes and context of the offending, including its potential use as camouflage and as a means of transferring money, and to assessing character and the likely impact of imprisonment. On the evidence, it did not consider that the sentence had been increased because of Tong's lifestyle ([72]). For Vuong, the Court accepted that the sentencing judge recognised remorse but considered the strength of the Crown case relevant to the degree of remorse shown by the plea ([75], [78]).
Before and after state of the law
The judgment records the legal position it applied as at 26 February 2003. It does not set out a comprehensive account of the law of parity, but its reasoning identifies the problem with comparing an applicant's sentence to a co-offender's sentence that has ceased to operate following the quashing of the co-offender's conviction.
The Court's treatment of Nguyen's original sentence distinguishes two ideas. First, that sentence might matter if Nguyen were later convicted and resentenced. Second, it did not bind the future sentencing judge or cap the sentence available after retrial ([23]). The Court cited R.H.McL v R for the proposition that avoiding a longer sentence after a successful appeal is ordinary but not invariable. A higher sentence could be imposed if the sentencing judge considered the former sentence manifestly inadequate ([23]). The Court also referred to R v Chen, R v Bolton and R v Petersen in the same footnote, but the supplied judgment extract gives no separate account of their reasoning or of how each authority was applied.
The decision also shows that parity was not treated as a simple comparison of sentence lengths. The Court examined the roles, the present status of Nguyen's conviction, and the uncertainty of any future sentence. It stated that an apparently disparate sentence did not, without more, establish that error lay in the sentences before it ([27]).
The supplied text does not describe later changes in the law or how later courts treated this decision. Accordingly, no claim about a subsequent doctrinal development or the decision's later precedential reception can be drawn from this material.
Key passages with plain-English translation
At [23], the Court said Nguyen's original sentence “does not ... constitute a ceiling” for a sentence after retrial. In plain English, the previous sentence might be a relevant consideration if there were a conviction after retrial, but it did not set an upper limit in advance.
At [27], the Court declined to assume that Nguyen would be convicted again or that his next sentence would be no greater than the first. This matters because the applicants' parity argument depended on treating a sentence attached to a quashed conviction as a stable benchmark. The Court considered the future outcome and sentence uncertain.
At [33], the Court rejected the description of Tong as merely a “broker”. The judgment's reasoning was that Tong purchased the heroin himself and resold it, making him a principal in the transaction rather than someone who only arranged a contract between others.
At [39], the Court said it was “futile to attempt to draw distinctions” between the operational importance of Lao and Tong. This was not a finding that their roles were identical in every respect. The Court's stated point was that Lao's deference to Tong did not diminish Tong's importance to the trafficking operation.
At [57], the Court said the applicants were “not mere couriers”. It treated their participation in the commercial transactions supporting distribution as a substantial part of the seriousness of the offending.
At [78], the Court said the strength of the Crown case was relevant to evaluating Vuong's remorse. The reasoning did not say that a strong case removes the value of every guilty plea. Rather, it treated the strength of the evidence as one circumstance bearing on the degree of remorse.
What fact patterns trigger this precedent
The most direct fact pattern addressed is a sentencing parity argument relying on a co-offender's original sentence after that co-offender's conviction has been quashed and a retrial ordered. The judgment indicates that the comparison cannot simply assume that the conviction or sentence will be restored, or that the previous sentence will cap any later sentence ([23], [27]).
The case also concerns co-offenders with different roles in a commercial drug-trafficking operation. Tong organised and carried out the purchase and resale function, while Ong and Vuong provided important assistance using local knowledge, with Ong recruiting the main purchaser ([33], [54]). The Court assessed the sentences by reference to those roles rather than treating the three applicants as interchangeable.
The decision's other reasoning may be relevant where a sentencing complaint concerns a guilty plea's timing or its relationship to remorse, an erroneous factual attribution in sentencing remarks, or the use of gambling as context for offending. The Court's conclusions depended on the particular remarks, evidence and circumstances described in the judgment. It should not be read as resolving how those issues would apply in materially different circumstances.
How later courts have treated it
The supplied judgment extract contains no decisions after R v Tong, Ong & Vuong and gives no account of later judicial treatment of this case. It is therefore not possible, from this source alone, to say whether later courts followed, distinguished, limited or otherwise treated its reasoning.
The authorities identified in the judgment are authorities it cited, not later treatments of Tong. These include R.H.McL v R and the cases listed in footnote [2], namely R v Chen, R v Bolton and R v Petersen. The judgment invokes R.H.McL when discussing the possibility of a higher sentence after retrial, while the extract does not explain the other listed cases beyond referring to them. No further relationship should be inferred from the text provided.
Still-open questions
The judgment does not decide what sentence Nguyen would receive after retrial. It says that a future sentencing judge would have to take account of his former sentence if he were convicted, but that the former sentence would not be a ceiling ([23]). The outcome of the retrial, the offence of any conviction and the personal circumstances relevant to sentencing remained unknown.
Nor does the judgment set out a broad test for every parity comparison involving a quashed conviction. Its discussion concerns the specific position before it: the co-offender's conviction had been set aside, no retrial had yet taken place, and the Court declined to predict either conviction or sentence ([14], [27]).
The Court found that the applicants' sentences reflected their roles and remained within the available range. It did not provide a general sentencing scale for trafficking offences or establish a formula based on the quantity of heroin. Its assessment drew on the quantity, the commercial character of the operation, the applicants' roles and the mitigation identified in the pleas ([57], [60]).
Finally, although the Court considered the strength of the Crown case relevant to evaluating remorse, the judgment does not prescribe how much weight that factor should receive in other cases. It also does not state that a plea's value depends only on the strength of the prosecution case. The Court's reasoning was tied to the particular sentencing remarks and circumstances described at [75] and [78].
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Criminal law - Sentencing - Trafficking in heroin - Parity with sentence of a co-offender whose conviction has been quashed and a re-trial ordered - Principals in the trade - Sentences of 21 years' imprisonment with a minimum of 17 years' imprisonment and 12 years' imprisonment with a minimum of nine years' imprisonment not manifestly excessive.
[3]
The applicants were arraigned in the County Court and pleaded guilty to a presentment alleging that each of them trafficked in not less than a commercial quantity of heroin between 28 May 1999 and 3 August 1999. Tong was sentenced to be imprisoned to a term of 16 years with a non-parole period of 12 years. Vuong and Ong were each sentenced to be imprisoned to a term of 12 years with a non-parole period of 9 years.
[4]
The applicants pleaded guilty to dealing with two consignments of heroin from China to Melbourne in June and August 1999. Vinh Lac Lao ("Lao") obtained the heroin and sold it to Tong, a resident of Hong Kong, who was based at the hotel at Crown Casino during the period of trafficking and who was assisted by the applicants Ong and Vuong, a de facto couple who lived in Melbourne. Tong sold the heroin to Thanh Hung Nguyen ("Nguyen"), who then distributed it in Melbourne.
[5]
The Crown case consisted principally of transcripts of intercepted telephone conversations and recorded face-to-face conversations between the applicants, Lao, Nguyen and others throughout the period covered by the presentment and evidence of covert surveillance of all the participants in the trafficking. The applicants were in almost daily telephone contact and Tong frequently met either or both Vuong and Ong. Tong relied upon the local knowledge of Vuong and Ong to further his dealings with Lao and Nguyen. Vuong addressed Tong as her boss.
[6]
The first consignment was brought to Melbourne and distributed. The second consignment was intercepted when heroin in the boot of a motor car controlled by the applicants was seized by the police. The heroin in the boot of the car consisted of 20 blocks of a gross weight of 6.8494 kilograms. The pure heroin component was 4.363 kilograms. A commercial quantity of heroin is 250 grams, and the maximum penalty for the offence is 25 years' imprisonment.
[7]
Nguyen and Lao pleaded not guilty to a like charge, although covering a more extended period and three consignments, not two. They were found guilty after a trial. Lao was sentenced to a term of 21 years' imprisonment with a non-parole period of 17 years and Nguyen to a term of 12 years' imprisonment with a non-parole period of 9 years. Lao and Nguyen successfully appealed against their convictions. On 20 October 2002, the Court of Appeal set aside the convictions and ordered retrials. Lao and Nguyen have yet to be retried.
[8]
The applicants seek leave to appeal against their sentences.
[9]
Each of the applicants contend that the sentencing judge erred in imposing sentences that breached the principle of parity in that the sentences were unjustifiably disparate from that imposed upon Nguyen.
[10]
At first sight, the sentence imposed upon Nguyen, whose criminality was of the order of that of Lao and Tong and greater than that of Ong and Vuong, would appear to give rise to a justifiable sense of grievance in the applicants, at least at the time when the grounds of the applications for leave to appeal were formulated. The present position, however, is that Nguyen's sentence fell with his conviction. The sentence imposed upon Nguyen may have significance in the future. If Nguyen is convicted after a retrial, the sentencing judge will be required to have regard to the former sentence imposed upon him. The sentence does not, however, constitute a ceiling which cannot be exceeded upon Nguyen's resentencing. As McHugh, Gummow and Hayne, JJ. said in R.H.McL v. R[1]:
[11]
"If the appellant is convicted on any count at the retrial, the sentencing judge will also have to take into account another important factor in the sentencing process. Ordinarily but not invariably, a successful appellant should not receive a longer sentence after conviction on a retrial than he or she received at the original trial. If the sentencing judge at the retrial thinks that the original sentence was manifestly inadequate, it is open to that judge in the exercise of the sentencing discretion to give a sentence higher than that imposed on the first occasion."[2]
[12]
In my opinion, the sentences imposed upon the applicants should not be approached on the basis that Nguyen will be convicted again and that the sentencing judge will necessarily impose no greater sentence than that which Nguyen received after his first trial. As I will explain later, in my view, the sentences imposed upon the applicants were within the range available to the sentencing judge, and I think I should proceed on the basis that if Nguyen is convicted again, it may well be that either his sentence will accord with the sentences imposed upon the applicants, or a substantially lesser sentence will again be imposed because his personal circumstances or the circumstances of the offence of which he is convicted warrant that disparity. Further, I do not think that the mere fact that the sentence imposed upon Nguyen, which appears (at first sight at least) to be disparate, shows that any error was made in the sentences imposed upon the applicants rather than that imposed upon Nguyen himself.
[13]
The applicant Tong has also complained about the disparity said to exist as between the sentences imposed on him and Vuong and Ong. Tong contends that he was not the master of Ong and Vuong. It was not contended by Tong that the sentences failed to properly reflect the personal circumstances of the applicants.
[14]
The sentencing judge found that Tong was the organiser of the activities of Ong and Vuong, who assisted in carrying into effect an enterprise conducted by Tong, but were essential to the enterprise. The sentencing judge described Tong as a man who rarely left the casino complex, while Ong and Vuong knew the drug trafficking trade in Melbourne and Sydney. His Honour said: "Your input was central to the success of Tong's drug operation." Tong spoke little English and no Vietnamese. He relied on Ong and Vuong to sell heroin in the Melbourne Vietnamese community. In the outline of his argument, counsel for Tong described the applicant as a "broker". He was not a broker who merely organised the formation of a contract between Lao and Nguyen. He was a principal who purchased the heroin in his own right and resold it.
[15]
In my opinion, the sentences imposed upon the applicants are in accordance with the roles each of them played in the trafficking.
[16]
Tong's counsel submitted that the applicant's offence was less serious than that of Lao. As Lao pleaded not guilty, it may well be that the sentencing judge viewed his criminality as comparable to that of Tong. If he did, I think he was justified in doing so. The sentencing judge referred to the deference displayed by Tong to Lao. That was presumably due to the fact that the entire trade in heroin in Australia depends upon those who organise its shipment from overseas. But that does not diminish Tong's role. Without a person fulfilling Tong's function, Lao was helpless. I think it futile to attempt to draw distinctions between the importance of persons conducting the operations of Lao and Tong.
[17]
I turn to another ground to which the applicants Tong and Ong subscribed, namely, that the sentences were manifestly excessive. The applicant Vuong does not in terms complain that the sentence imposed upon her is manifestly excessive, but she does contend that the judge failed to give sufficient weight to certain factors and too much weight to others, which amounts in effect to a complaint that the sentence imposed upon her was outside the range available to the sentencing judge.
[18]
In order to evaluate this ground it is necessary to have regard to the matters concerning the personal circumstances of the applicants that were advanced in the course of the pleas made on their behalf.
[19]
Tong is 47 years old. He and his family, consisting of a wife and four sons ranging in age from 9 to 17 years and his parents, live in Hong Kong. The applicant is in Australia quite alone. Tong was educated to primary school level, becoming a labourer at the age of 15 years. After a succession of unskilled jobs he became a nightclub manager and later a trader in toys and a restaurateur. He had always gambled and eventually became a professional gambler.
[20]
Vuong is 48 years old. She was born in Vietnam to an ethnic Chinese family. When she was 25 years old the applicant came to Australia. Her counsel told the sentencing judge that she had worked hard in menial positions for many years. With the money she had saved from her wages she established a business of a gift shop in the mid-1990s. The business failed, and as a result she slid into a life of crime. The applicant commenced to gamble and by 1998 she had become a substantial customer of the Crown Casino. In 1999 she formed a relationship with Ong and spent her time at the casino gambling tables and at the Crown Hotel.
[21]
Ong is 49 years of age. After a difficult early life in Vietnam, the applicant left in 1982 and came to Australia. Here, he formed a de facto relationship and had a son. The applicant worked in and used gambling establishments and consequently was usually in financial difficulties. In 1992 he began to use heroin, to which he became addicted. With Vuong, Ong practically daily assisted Tong in organising the sale of heroin. It was Ong who recruited Nguyen, the principal purchaser from Tong.
[22]
The crimes were grave indeed. The quantity of pure heroin in the second consignment alone was some 17 times the commercial quantity specified by the Act. The damage which the distribution of that quantity of heroin is capable of inflicting upon society and many of its younger and less fortunate members has been demonstrated time and again. Those who are addicted to heroin court death and their lives and those of their families and the victims of the crimes they may commit to sustain their addiction are inevitably blighted. The applicants were not mere couriers: they played substantial roles in the commercial transactions upon which distribution of heroin depends.
[23]
The applicants were entitled to discounts when they pleaded guilty. Their previous good character was also a mitigating factor, and Tong could point to the hardship of serving a sentence in an Australian prison, far from his family and friends. Despite the presence of these mitigating factors, I do not consider that the sentences for these crimes of trafficking were beyond the range that was available to the sentencing judge.
[24]
There remain a number of grounds complaining of particular errors by the sentencing judge.
[25]
In the case of Tong, his counsel submitted that the sentencing judge failed to give sufficient weight to his plea of guilty. The sentencing judge said that he took into account the strength of the case against the applicant and did not state that the plea was entered at the earliest opportunity. The discounting fact given to Tong appears to have been significant when compared to the sentence imposed upon Lao. The sentencing judge was entitled to view the strength of the Crown case as bearing upon the degree of contrition experienced by Tong. The plea may have been entered at the earliest opportunity. That conclusion depends upon taking into account a number of factors in order to assess the time of the earliest opportunity. Those factors include the fact that counsel was not briefed until December 2000, legal aid funding was not confirmed until later, there was a large volume of evidence which took the form of transcripts of tapes, which required time to assimilate and assess, and the fact that the decision by the Crown as to the appropriate count took some time to evolve. The sentencing judge did not reject the conclusion that the plea was entered at the earliest practical opportunity. At the end of the day, I am not persuaded that the sentencing judge did not give due weight to the timeliness of Tong's indication that he would plead guilty.
[26]
Tong also complains that the sentencing judge erred in aggravating the sentence imposed upon him by reference to matters that might have eventuated outside the period of the trafficking alleged in the presentment. The complaint is based upon the judge's reference to future plans for trafficking made by Tong. His Honour referred to a conversation with a man called Hung in which the applicant discussed his present and intended operations and later said that the applicant planned to become a "main player" in the wholesale heroin trade in Melbourne to defeat named opposition suppliers. That finding was in error, for the statement was properly attributed to another person, one Tran. The sentencing judge did say, however, that Tong's offending took place over a specified period, and in my view the references to the plan which the applicant made as to the future was not a factor that in fact added to the length of the sentence. The sentencing judge had earlier said that Tong played a "central pivotal role in the wholesale supply of heroin in Melbourne". In my view, his Honour's remarks as to future plans added nothing but the notion that the business was ongoing, and that was a conclusion that was open to him. In my view, it has not been demonstrated that the applicant was sentenced for a crime or crimes apart from the offence specified in the presentment.
[27]
Finally, Tong's counsel contended that the sentencing judge erred in giving undue weight to the applicant's professional gambling. His Honour did refer to the level of the applicant's gambling turnover and described his lifestyle as "irresponsible and extravagant". If it could be established that the sentencing judge used those matters as aggravating circumstances, it may be said that there is error. On the other hand, the sentencing judge was entitled, indeed required, to address the cause of Tong's offending, and to address an activity that was relevant to the trafficking by operating as a camouflage for it and a means of transferring the money required to conduct it, and to make some assessment of the character of the applicant and the nature of the life which he led, in order to assess the likely effect of the sentence which he intended to impose upon him. Having regard to the evidence, I do not regard the description of the life led by Tong as being inaccurate, and I do not think that the sentence was increased as a consequence of the manner in which the applicant chose to spend his time and money.
[28]
25 Vuong has complained that the sentencing judge erred in reducing the significance of the plea of guilty as a consequence of the strength of the Crown case. Counsel contended that the sentencing judge was not entitled to reduce the significance of the guilty plea on this basis. The plea was made at the earliest practical opportunity, and that was made clear several times by her counsel to the sentencing judge in the course of the plea.
[29]
In my opinion, the sentencing judge did not err. His Honour expressly recognised that the applicant was remorseful and said that contrition was demonstrated by the plea of guilty, but at the same time thought that factor was to be tempered in the light of the strong Crown case. Remorse is usually a matter of degree. In evaluating the applicant's remorse, a relevant circumstance, in my view, was the strength of the Crown case.
[30]
For the foregoing reasons, I would dismiss each of the applications for leave to appeal against sentence.
[31]
I agree that each of these applications should be dismissed and I do so for the reasons advanced by the learned presiding judge.
[32]
I agree that the application should be dismissed and in each case I do so for the reasons stated by Buchanan, J.A.
[33]
The order of the Court will be that each of the applications is dismissed.
[34]
(Discussion ensued re certificates under the Appeal Costs Act.)