Dang v R

Case [2014] NSWCCA 47 9 April 2014

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Court of Criminal Appeal

New South Wales

Case Title: Dang v R

Medium Neutral Citation: [2014] NSWCCA 47

Hearing Date(s): 2 April 2014

Decision Date: 09 April 2014

Before: Simpson J at [1]
Davies J at [2]
Adamson J at [3]

Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW - sentence - appeal - alleging error based on exchanges in course of the hearing - relevance of secondary count being included in principal count - framing of charges under prosecutorial discretion - whether leave to appeal ought be sought on grounds contrary to concessions made before primary judge -whether procedural unfairness occurred when primary judge fixed non-parole period in excess of a prior indication - no denial of procedural fairness- whether sentence was manifestly excessive - caution to be exercised when drawing direct comparisons with other sentences

Legislation Cited: Crimes Act 1900 (NSW), s 527C
Crimes (Sentencing Procedure) Act 1999 (NSW), s 9, s 21A
Drug Misuse and Trafficking Act 1985 (NSW), s 25, s 25A

Cases Cited: Button v R [2010] NSWCCA 264
Carroll v The Queen [2009] HCA 13
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Hili v The Queen; Jones v The Queen [2005] HCA 45; (2010) 242 CLR 520
Koklas v R [2003] NSWCCA 302
Mulato v R [2006] NSWCCA 282
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
Re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; 214 CLR 1
Tran v R [2007] NSWCCA 140
Weir v R [2011] NSWCCA 123
Zreika v R [2012] NSWCCA 44

Category: Principal judgment

Parties: Phong Dang (Applicant)
Regina (Respondent)

Representation

- Counsel: Counsel:
D Barrow (Applicant)
N Noman SC (Respondent)

- Solicitors: Solicitors:
SE O'Connor, Legal Aid NSW (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/922590

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Syme J

- Date of Decision: 03 December 2012

- Court File Number(s): 2012/92259

Publication Restriction: Nil

JUDGMENT

SIMPSON J: I agree with Adamson J.
DAVIES J: I agree with Adamson J
ADAMSON J: The applicant seeks leave to appeal against the sentences set out below for offences under s 25(1) and s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA) which were imposed by Syme DCJ following his plea of guilty:

No. Section Offence Maximum Penalty Sentence Imposed

1
Section 25(1) DMTA
Supply prohibited drug (heroin) on 22 March 2012 15 years imprisonment
Imprisonment for a fixed term of 2 years and 6 months to date from 22 March 2012.

A 25% discount was allowed for the plea of guilty.

2 Section 25A DMTA Supplying a prohibited drug on an ongoing basis between 7 March 2012 and 14 March 2012 20 years imprisonment
Imprisonment for a term of 4 years and 6 months commencing on 21 August 2012 with a…

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 Dang v R

Details

AGLC: Dang v R [2014] NSWCCA 47
Case: [2014] NSWCCA 47
Decision Date: 09 April 2014

CaseChat Overview and Summary

The case involved Dang who was convicted and sentenced to imprisonment for a number of offences. The appeal against the sentence was heard by the court. The central issue was whether the sentence imposed was manifestly excessive and whether there was procedural unfairness in the setting of the non-parole period. The appeal hinged on whether the primary judge had erred in the framing of the charges and in fixing the non-parole period.

The court examined the principle that a charge should not include a secondary count unless there is a clear nexus between the primary and secondary counts. It also considered whether the discretion of the prosecutor in framing charges should be subject to judicial scrutiny. The court found that there was no procedural unfairness as the non-parole period was not fixed in a vacuum, but rather in light of all the circumstances of the case. The court further held that the sentence was not manifestly excessive as it was within the range of sentences that could be considered appropriate for the offences committed. The court cautioned against making direct comparisons with other sentences as each case must be considered on its own merits.

The appeal was dismissed, and the sentence upheld. The court emphasized the importance of exercising caution when drawing direct comparisons with other sentences and the need to consider the specific circumstances of each case. The court also highlighted the principle that a charge should not include a secondary count unless there is a clear nexus between the primary and secondary counts. The court found that there was no procedural unfairness as the non-parole period was not fixed in a vacuum, but rather in light of all the circumstances of the case. The court further held that the sentence was not manifestly excessive as it was within the range of sentences that could be considered appropriate for the offences committed.

Orders