Dang v Li

Case [2021] ACTSC 179


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Dang v Li

Citation:

[2021] ACTSC 179

Hearing Date:

3 December 2020

Submissions last received:

Decision Date:

17 December 2020

5 August 2021

Before:

McWilliam AsJ

Decision:

See [113]

Catchwords:

CRIMINAL LAW – APPEAL – Judgment and Punishment – Sentence – appeal from Magistrates Court against sentence – whether Magistrates Court erred in taking into account conduct which could have been the subject of a separate charge – whether another sentence warranted in law

Legislation Cited:

Court Procedures Rules 2006 (ACT) r 5051
Crimes Act 1900 (ACT) ss 24, 25
Crimes (Sentencing) Act 2005 (ACT) ss 10, 33

Magistrates Court Act 1930 (ACT) ss 207, 208, 214

Cases cites

AA v McDevitt [2017] ACTSC 342
AB v R [1999] HCA 46; 198 CLR 111
Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58
Bethke v Phelan [2016] ACTSC 328
Betts v The Queen [2016] HCA 25; 258 CLR 420
Cooper v Corvisy (No 2) [2010] ACTSC 166; 5 ACTLR 151
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Field v Unas [2019] ACTSC 13
GAS v The Queen; SJK v R [2004] HCA 22; 217 CLR 198
Gillard v The Queen [2016] ACTCA 50
Guy v Anderson [2013] ACTSC 5
Halden v R (1983) 9 A Crim R 30
Hooper v The Queen [2003] WASCA 179; 27 WAR 264
House v The King (1936) 55 CLR 499
Huang v R [2018] NSWCCA 57; 96 NSWLR 743
Keen v Tither [2010] ACTSC 130
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Kibblewhite v Buik [2020] ACTSC 132
KN v Frizzell [2020] ACTSC 217
Nguyen v The Queen [2016] HCA 17; 256 CLR 656
O’Brien v Noble [2012] ACTCA 13; 6 ACTLR 132
Pettitt v Dunkley [1971] 1 NSWLR 376
Ross v Mothersole [2010] ACTSC 125
R v Bedford [2019] ACTSC 282
R v Dowlan [1998] 1 VR 123; 92 A Crim R 305
R v LRS [2001] NSWCCA 338
R v Shepheard [2008] ACTSC 116; 189 A Crim R 165
R v UG [2020] ACTCA 8; 281 A Crim R 291
R v Zamagias [2002] NSWCCA 17
Savvas v The Queen [1995] HCA 29; 183 CLR 1
Swan v R [2016] NSWCCA 79
The Queen v De Simoni (1981) 147 CLR 383
The Queen v DK [2016] ACTCA 7
Thorn v Laidlaw [2005] ACTCA 49
Tracey v The Queen [2020] ACTCA 51

ZL v Corey [2020] ACTSC 143

Parties:

Minh Dang (Appellant)

Ying-dah Li (Respondent)

Representation:

Counsel

Mr J Tyler-Stott with Mr S Tierney (Appellant)

Ms K McCann (Respondent)

Solicitors

Ken Cush & Associates (Appellant)

ACT Office of the Director of Public Prosecutions (Respondent)

File Number:

CA 3 of 2019

Decision under appeal: 

Court/Tribunal:             Magistrates Court of the ACT

Before:  Chief Magistrate Walker

Date of Decision:          20 December 2018

Case Title:  The Police v Minh Dang

Court File…

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Dang v Li [2021] ACTSC 179
Case
[2021] ACTSC 179
Decision Date

CaseChat Overview and Summary

The appeal in Dang v Li was brought before the court by Dang, who contested the sentence imposed by the Magistrates Court. The underlying dispute pertained to Dang's criminal activities, which led to a conviction and subsequent sentencing. Dang's contention was that the Magistrates Court had erred in considering conduct that could have been the subject of a separate charge and that a different sentence should have been imposed.

The primary legal issue before the court was whether the Magistrates Court had erred in its assessment of the sentence by taking into account certain conduct that could have warranted a separate charge. The court was also required to determine if, given this alleged error, a different sentence was warranted in law. This involved a careful examination of the principles governing sentencing and the potential impact of the Magistrates Court's consideration of the disputed conduct on the overall sentence.

The court thoroughly reviewed the principles of sentencing and the specific circumstances of the case. It found that the Magistrates Court had indeed erred in considering the conduct in question, as it could have been the basis for a separate charge. However, the court concluded that this error did not necessitate a different sentence, given the nature of the offence and the overall circumstances. The appeal was thus dismissed, and the original sentence was upheld.

The final orders of the court were to dismiss the appeal and confirm the original sentence imposed by the Magistrates Court.

Orders

Orders of the court

See [113]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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