SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0103
| LY DANG | Appellant |
| v | |
| THE QUEEN | Respondent |
---
| 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) |
---
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.
---
| 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…
Continue reading Dang v The Queen
Sign in free to access the full text
- AGLC
- Dang v The Queen [2014] VSCA 49
- Case
- [2014] VSCA 49
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.