JUDGES:	BEACH, NIALL AND ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 October 2019
DATE OF JUDGMENT:	6 November 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 250
JUDGMENT APPEALED FROM:	CDPP v Wang & C Z (Unreported, County Court of Victoria, Judge Chettle, 12 June 2018)

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CRIMINAL LAW – Sentence – Appeal by DPP (Cth) under Crimes Act 1914 (Cth) s 16AC (3) – Attempted drug importation – Accused pleaded guilty to attempting to import commercial quantity of border controlled drug – Written undertaking to assist the Crown in prosecution of named persons – Sentence of 13 years and 10 months’ imprisonment with non-parole period of nine years – Statement by judge pursuant to Crimes Act 1914 (Cth) s16AC(2) that, but for undertaking to cooperate in prosecution of alleged co-offenders, sentence of 23 years’ imprisonment with 17 years non-parole period would have been imposed – Partial failure to cooperate in accordance with undertaking – Extent of failure to cooperate – Acquittal of one co-accused for unrelated reason – Acquittal of co-accused beside the point – Sentence of 16 years and 6 months’ imprisonment with non-parole period of 10 years and 9 months substituted under Crimes Act 1914 (Cth) s 16AC(4)(b).

CRIMINAL LAW – Sentence – Whether specific error – Accurate description of offending and offender – Inaccurate reference to offending being ‘group one category’ attempted importation – Whether statements by judge under s 16AC(2) Crimes Act 1914 (Cth) and s 6AAA Sentencing Act 1991 revealed that offender sentenced for ‘group 1 category’ attempted importation – DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 and Nguyen v The Queen (2011) 31 VR 673 – De La Rosa ‘categories’ – Caution necessary in using De La Rosa ‘categories’ in sentencing – R v Holland (2011) 205 A Crim R 429; DPP v Masange (2017) 325 FLR 363 – Sentencing involves instinctive synthesis of all relevant circumstances – misdescription of no consequence – No specific error.

CRIMINAL LAW – Sentence – Manifest excess – Large attempted drug importation – offender’s important role – Guilty plea – Promised cooperation – Sentence within range.

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APPEARANCES in S APCR 2018 0173:	Counsel	Solicitors
For the Appellant	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)
For Respondent	Mr P F Tehan QC with Mr J O’Connor	Slades & Parsons

APPEARANCES in S APCR 2018 0253:	Counsel	Solicitors
For the Applicant	Mr P F Tehan QC with Mr J O’Connor	Slades & Parsons
For the Respondent	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

BEACH JA
NIALL JA

ASHLEY JA:

On 21 May 2018, Li Ye Wang (‘Wang’) pleaded guilty in the County Court to a charge of attempting to import a commercial quantity of a border controlled drug. The maximum penalty…

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 DPP (Cth) v Wang

Details

AGLC: DPP (Cth) v Wang [2019] VSCA 250
Case: [2019] VSCA 250
Decision Date: 6 November 2019

CaseChat Overview and Summary

The matter before the court was an appeal by the Director of Public Prosecutions (DPP) against the sentence imposed upon Li Ye Wang, who had pleaded guilty to attempting to import a commercial quantity of a border controlled drug. The Director’s appeal was brought pursuant to section 16AC(3) of the Crimes Act 1914 (Cth), following Wang’s partial failure to cooperate in accordance with his written undertaking to assist the Crown in prosecuting other alleged co-offenders. Wang also sought leave to appeal against the sentence imposed, on two grounds: first, that the judge erred in sentencing him on the basis that he had committed a ‘group 1 category attempted importation’; and second, that the sentence was manifestly excessive. The central issue was whether the sentence should be increased to reflect Wang’s partial failure to cooperate, and if so, to what extent. The court concluded that a modest increase in sentence was appropriate. The misdescription of the role of Wang in the offending, and the reliance upon the De La Rosa ‘categories’ were not operative errors. The sentence proposed by the court, in light of the Director’s appeal, would be 16 years and 6 months’ imprisonment, with a non-parole period of 10 years and 9 months. Wang’s application for leave to appeal was refused.

Orders