Beatrice Chang v The Queen - [2018] VSCA 15

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0210

BEATRICE CHANG	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 February 2018
DATE OF JUDGMENT:	1 February 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 15
JUDGMENT APPEALED FROM:	DPP v Chang (Unreported, County Court of Victoria, Judge Carmody, 8 September 2017)

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Applicant pleaded guilty to trafficking in a drug of dependence (methylamphetamine) – Sentenced to two year community correction order with conviction – Whether sentencing judge erred by recording conviction – Whether impact of conviction on applicant’s employment prospects, and 43 days in custody on remand, adequately taken into account – No reasonable prospect that Court of Appeal would find sentencing discretion miscarried – Leave to appeal against sentence refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Slades & Parsons
For the Crown	Mr B L Sonnet with Mr M D Phillips	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA:

On 1 September 2017, the applicant pleaded guilty in the County Court, at Melbourne, to one charge of trafficking in a drug of dependence (methylamphetamine). She now seeks leave to appeal against sentence pursuant to s 278 of the Criminal Procedure Act 2009.

On 8 September 2017, the applicant was sentenced as follows:

Charge	Offence	Maximum Penalty	Sentence
1	Trafficking in a drug of dependence	15 years’ imprisonment	2 year community correction order
Total Effective Sentence			2 year community correction order
6AAA Statement			2 years’ imprisonment, with a non-parole period of 16 months

The community correction order was imposed with conviction.

Ground of appeal

The applicant seeks leave to appeal on the following ground:

The sentencing judge erred by recording a conviction against the applicant.
Particulars:
(a) His Honour erred by concluding that the applicant’s offending was ‘too serious to do anything other than to proceed to conviction’.
(b) The recording of a conviction was unreasonable or plainly unjust.
(c) The considerations favouring a decision not to record a conviction far outweighed those supporting the recording of a conviction.

Summary of relevant facts

On 23 January 2017, the applicant, along with Michael Ung, her partner of five years, drove from Melbourne to Sydney. Once they arrived in Sydney, they stopped briefly in Mason Park, near Homebush, where they come into the possession of a bag containing an illegal substance.

According to Mr Ung’s account, he had arranged that the pair leave the car unlocked and go for a short walk. When they returned to the car, a bag had been placed on the back seat.

According to the applicant’s account, while sitting in the car at Mason Park, she witnessed an exchange between Mr Ung and an associate. She stated later in her record of interview that she did…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Beatrice Chang v The Queen

Details

AGLC: Beatrice Chang v The Queen [2018] VSCA 15
Case: [2018] VSCA 15
Decision Date: 1 February 2018

CaseChat Overview and Summary

Beatrice Chang appealed against her sentence, contending that the sentencing judge erred in recording her conviction for trafficking in a drug of dependence, specifically methylamphetamine. The case was heard in the High Court of Australia, where the applicant sought leave to appeal against her sentence of a two-year community correction order, which included a conviction. The primary contention was whether the sentencing judge had adequately considered the impact of the conviction on Chang's employment prospects and the 43 days she had already spent in custody on remand.

The court was required to determine if there was a reasonable prospect that the Court of Appeal would find that the sentencing discretion had miscarried. This involved examining whether the judge had sufficiently weighed the factors in mitigation, including the impact of the conviction on Chang's employment and the time already served on remand. The court considered the severity of the offence and the need for general deterrence, as well as the mitigating factors presented by the applicant.

The High Court held that there was no reasonable prospect that the Court of Appeal would find that the sentencing discretion had miscarried. The court found that the sentencing judge had appropriately balanced the aggravating and mitigating factors and had adequately taken into account the impact of the conviction and the time spent in custody on remand. Consequently, the application for leave to appeal against the sentence was refused.

Orders