Kai Yang Kao v and the Queen - [2018] VSCA 189

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0083

KAI YANG KAO	Applicant
V
Respondent
THE QUEEN

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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JUDGE:	WHELAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 July 2018
DATE OF JUDGMENT:	1 August 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 189 First Revision: 6 August 2018
JUDGMENT APPEALED FROM:	[2017] VCC 1169 (Judge Tinney)

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CRIMINAL LAW – Sentencing – Application for leave to appeal – Proposed grounds specific error and manifest excess – Dealing with proceeds of crime – Seriousness of offending – Method of counting amount – Identify relevant dealings – Attempting to possess a commercial quantity of a border controlled drug – Manifest excess not reasonably arguable – Leave refused – DPP v Thomas (2016) 315 FLR 31 considered – Criminal Code Act 1995 (Cth) ss 400.9(1), 311.14, 11.1

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Edney	Doogue + George
For the Respondent	Ms K Breckweg	Ms S N McNaughton SC, Commonwealth Director of Public Prosecutions

WHELAN JA:

The applicant, Kai Yang Kao, pleaded guilty to two charges of dealing with money reasonably suspected of being the proceeds of crime[1] and one charge of attempting to possess a commercial quantity of a border controlled drug.[2] On 18 August 2017 he was sentenced by a judge in the County Court to a term of imprisonment of two years on the first charge of dealing with the proceeds of crime, 14 months on the second, and a term of imprisonment of 9 years 8 months on the charge of attempted possession. Orders were made as to commencement dates which had the effect of imposing a total effective sentence of 11 years’ imprisonment. The sentencing judge fixed a non-parole period of 6 years 10 months.
[1]Criminal Code Act 1995 (Cth) s 400.9(1) (‘Criminal Code’).
[2]Criminal Code ss 311.14, 11.1.

The applicant seeks leave to appeal on two proposed grounds. They are:

(1)The sentencing discretion miscarried because the sentencing judge in assessing the objective gravity of the applicant’s offending on charge 1 ‘double counted’ the ‘dealings’ of the applicant.
(2)The sentence imposed on the charge of an attempt to import a commercial amount of a border controlled drug was manifestly excessive.

Circumstances of the offending

The first charge concerning dealing with the proceeds of crime was constituted by a number of transactions undertaken by the applicant between 1 March 2016 and 18 March 2016. The applicant dispatched three sums of money, $38,730, $98,025.50, and $30,503, to Chinese recipients on 1 March, 11 March, and 18 March. On 11 March and 15 March the applicant undertook four transactions involving a sum of $200,000. That sum was deposited into an account he had with ANZ on 11 March, he moved it the same day to another account he had with ANZ, moved it back on 15 March to the initial account, and then,…

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: [2018] VSCA 189
Decision Date: 1 August 2018

CaseChat Overview and Summary

The defendant, Kai Yang Kao, appealed against his sentencing in the High Court of Australia. The case involved allegations of attempting to possess a commercial quantity of a border controlled drug, specifically 1.368 kilograms of cocaine. The primary legal issues revolved around the court's assessment of the seriousness of the offending, the method of counting the amount of the drug, and the identification of relevant dealings with the proceeds of crime. The appeal was based on two grounds: specific error and manifest excess. The defendant argued that the sentencing was flawed due to the trial judge's handling of the seriousness of the offending, the method of counting the amount of the drug, and the identification of relevant dealings with the proceeds of crime.

The High Court considered these grounds and noted that the trial judge's approach to these issues was not outside the range of reasonable responses. The court highlighted that the trial judge had carefully considered the evidence and applied the correct legal principles. The High Court referred to the case of DPP v Thomas, where it was established that an appellate court should not interfere with the trial judge's assessment unless it was outside the range of reasonable responses. The court found that the defendant's arguments did not meet this threshold and concluded that the appeal was not reasonably arguable. As a result, the application for leave to appeal was refused.

In summary, the High Court upheld the trial judge's sentencing, finding that the defendant's grounds for appeal did not demonstrate a specific error or manifest excess. The court's decision was based on the careful consideration of the evidence and the application of the correct legal principles. The appeal was dismissed, and the original sentencing stood.

Orders