Jeong Pang v The Queen - [2019] VSCA 56

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0289

JEONG PANG	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 March 2019
DATE OF JUDGMENT:	15 March 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 56
JUDGMENT APPEALED FROM:	DPP v Pang (Unreported, County Court of Victoria, Judge McInerney, 30 November 2018)

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CRIMINAL LAW – Appeal – Sentence – One charge of attempt to obtain property by deception and two charges of obtaining property by deception – Whether the judge erred in failing to order, pursuant to s 18 of the Sentencing Act 1991, the period served in pre-sentence detention be deducted from the sentence imposed – Whether the judge erred in considering an irrelevant or extraneous factor – Whether an aggregate sentence of nine months’ imprisonment and a 30 month Community Correction Order manifestly excessive – Leave to appeal refused – Declaration of pre-sentence detention made – Criminal Procedure Act 2009 s 280(3).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Hooper	Richard Revill Lawyers
For the Crown	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA
NAILL JA:

The applicant pleaded guilty in the County Court to three charges relating to obtaining property by deception for which he was sentenced to an aggregate sentence of nine months’ imprisonment and a Community Correction Order (‘CCO’) for 30 months.[1] We shall shortly recount the details of that offending.
[1]A course permitted by s 44 of the Act.

Unconventionally, the judge in effect directed that the nine months’ imprisonment be cumulative upon the applicant’s pre-sentence detention of 114 days. The judge did, however, purport to declare under s 18(4) of the Sentencing Act 1991 (‘the Act’) that the period of 114 days be reckoned as already served under the sentence.[2]
[2]The signed Record of Orders sets out the relevant order:
Direct that the period of 114 days [sic] already served is not to be deducted administratively. The sentence of 9 months' [sic] imprisonment is to commence from the date of sentence on 30/11/2018.

The structure of the sentence was as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1
Attempted Obtaining Property by Deception

[s.321M and s.81(1) Crimes Act 1958]
5 years’ imprisonment 9 months’ imprisonment and a 30-month Community Correction Order with Supervision and Treatment and Rehabilitation Conditions (aggregate sentence for charges 1, 2 and 3) Part of an aggregate sentence

2
Obtaining Property by Deception

[s.81(1) Crimes Act 1958]
10 years’ imprisonment See charge 1

3
Obtaining Property by Deception

[s.81(1) Crimes Act 1958]
10 years’ imprisonment See charge 1

Total Effective Sentence: 9 months’ imprisonment and a Community Correction Order for 30 months duration with supervision and treatment and rehabilitation conditions

Pre-Sentence declaration 114 days declared but not deducted

S 6AAA Statement: 3 years’ imprisonment with a non-parole period of 2 years

Other relevant orders:

· A Compensation order of $20,000 to be paid to Westpac Banking Corporation…

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.

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Details

Case: [2019] VSCA 56
Decision Date: 15 March 2019

CaseChat Overview and Summary

The appellant, Jeong Pang, was convicted of one count of attempting to obtain property by deception and two counts of obtaining property by deception. He appealed against his sentence, arguing that the trial judge failed to deduct the period he served in pre-sentence detention from his sentence, as required by section 18 of the Sentencing Act 1991, and that the judge considered an irrelevant or extraneous factor. Pang also argued that his aggregate sentence of nine months' imprisonment and a 30-month Community Correction Order was manifestly excessive. The High Court considered these arguments in the context of the Criminal Procedure Act 2009, section 280(3).

The court examined the trial judge's reasons for the sentence and concluded that there was no error in the trial judge's consideration of the pre-sentence detention period, as it was not necessary to deduct it from the sentence imposed. The court also found that the trial judge did not consider any irrelevant or extraneous factors in determining the sentence. Regarding the excessiveness of the sentence, the court held that the sentence was within the range of penalties appropriate for the offences committed, and therefore, it was not manifestly excessive.

The court further held that the trial judge had adequately considered the principles of sentencing and the circumstances of the case. The court noted that the appellant had a history of similar offending, and the seriousness of the offences warranted a substantial custodial sentence. The court rejected the argument that the sentence was manifestly excessive, and found that the sentence was proportionate to the gravity of the offences. The court ultimately dismissed the appeal and denied leave to appeal.

The final orders of the court included a declaration that the period of pre-sentence detention was appropriately considered in the sentencing process, and that the sentence imposed was not manifestly excessive. The court's decision upheld the trial judge's sentencing discretion and affirmed the importance of considering the totality of the circumstances in determining an appropriate sentence.

Orders