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Dang v The Queen

Dang v The Queen

Case [2014] VSCA 49 25 March 2014

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0103

LY DANG	Appellant
	v
THE QUEEN	Respondent

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JUDGES	WEINBERG and TATE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	3 March 2014
DATE OF JUDGMENT	25 March 2014
MEDIUM NETRAL CITATION	[2014] VSCA 49
JUDGMENT APPEALED FROM	DPP v Dang (Unreported, County Court of Victoria, Judge Lawson, 12 April 2013)

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CRIMINAL LAW – Sentence – One Giretti charge of trafficking a drug of dependence (methylamphetamine) and one Giretti charge of trafficking a drug of dependence (heroin) – Single trade or business in dealing drugs – Double punishment – Pearce v The Queen (1998) 194 CLR 610, R v Bekhazi (2001) 3 VR 321, R v Langdon (2004) 11 VR 18, Johnson v The Queen (2004) 78 ALJR 616, Armistead v The Queen [2011] VSCA 84 and Kruzenga v The Queen [2014] VSCA 10 considered – Commonality between offences and minimal additional criminality – R vGiretti and Giretti (1986) 24 A Crim R 112, Mustica v The Queen; DPP v Mustica (2011) 31 VR 367 and Trajkovski v The Queen (2011) 32 VR 587 discussed – Appeal allowed – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr B Ihle with Mr D Ternovski	David Barrese & Associates
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

I agree with Tate JA.

TATE JA:

Introduction

This appeal raises a question about the application of the rule against double punishment to charges of trafficking formulated as separate Girreti[1] charges involving the carrying on of a single trade or business in dealing drugs. The question arises in the following circumstances.
[1]R v Girettiand Giretti (1986) 24 A Crim R 112 (‘Giretti’). The implications that flow from the offences being charged as Giretti charges are discussed below.

On 25 March 2013 the appellant,[2] Ly Dang (‘Dang’), pleaded guilty to one Giretti charge of trafficking in methylamphetamine, contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (‘the Act’), one Giretti charge of trafficking in heroin, contrary to s 71AC of the Act, and one charge of trafficking a commercial quantity of a drug of dependence (methylamphetamine), contrary to s 71AA of the Act. The charges were the subject of two separate indictments.
[2]On 16 October 2013 Nettle JA granted Dang leave to appeal on a limited basis. See further below.

On the first indictment, (Indictment A12337846), the charges were formulated with the same ‘between dates’, 25 March 2010 and 19 May 2010, and thus each alleged that Dang had engaged in the trade or business of trafficking in a drug of dependence that had been carried on over the same alleged period. Charge 1 related to methylamphetamine and Charge 2 related to heroin. While there were individual acts of supply, and offers to supply, specific to methylamphetamine and heroin respectively, much of Dang’s conduct relied on by the Crown…

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 The Queen

Details

AGLC: Dang v The Queen [2014] VSCA 49
Case: [2014] VSCA 49
Decision Date: 25 March 2014

CaseChat Overview and Summary

Dang v The Queen was a case before the court where Dang appealed against his sentence for drug trafficking. The dispute centred on whether he should have received separate sentences for trafficking methylamphetamine and heroin, or if they should have been considered a single course of conduct for sentencing purposes. The High Court of Australia heard the appeal.

The legal issues before the court were whether the drug trafficking offences constituted a single course of conduct for sentencing, and if so, whether this warranted a single punishment. The court had to consider the principles established in Pearce v The Queen, R v Bekhazi, R v Langdon, Johnson v The Queen, Armistead v The Queen, and Kruzenga v The Queen. The court also had to examine if there was minimal additional criminality in the separate offences, as discussed in R v Giretti and Giretti, Mustica v The Queen, and Trajkovski v The Queen.

The court determined that the drug trafficking offences were part of a single course of conduct and thus should have been treated as such for sentencing. The minimal additional criminality principle was applied, and the court found that the sentences imposed were excessive. The appeal was allowed, and Dang was re-sentenced by the court.

The final orders of the court included the allowance of Dang's appeal and the re-sentencing of Dang for his drug trafficking offences, taking into account the principles of minimal additional criminality and the single course of conduct for sentencing purposes.

Orders