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Kao v The Queen

Kao v The Queen

Case [2019] VSCA 84 11 April 2019

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0083

KAI YANG KAO	Applicant
v
THE QUEEN	Respondent

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JUDGES:	McLEISH and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 March 2019
DATE OF JUDGMENT:	11 April 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 84
JUDGMENT APPEALED FROM:	[2017] VCC 1169 (Judge Tinney)

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CRIMINAL LAW – Appeal – Sentence – Election – Dealing with money reasonably suspected of being proceeds of crime – Attempt to possess commercial quantity of border controlled drug – Applicant sentenced to 11 years’ imprisonment with non-parole period of six years 10 months – Whether trial judge double counted dealings in sentencing – Whether sentence and non-parole period manifestly excessive – Early plea – Youth – No prior convictions – Good prospects for rehabilitation – Appeal allowed in part – Applicant resentenced – Pun v The Queen [2017] VSCA 219 considered – Criminal Code 1995 (Cth)
ss 311.14(1), 400.9(1).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Dann QC with Ms C Boston	Furstenberg Law
For the Respondent	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

McLEISH JA

T FORREST JA:

Procedural background

On 18 August 2017, the applicant was sentenced as follows:

Charge

Offence

Maximum

Sentence

Cumulation

1.     Dealing with money reasonably suspected of being proceeds of crime
[s 400.9(1) of the Criminal Code (Cth)] 3 years’ imprisonment 2 years’ imprisonment
1 year on
charge 3

(commences
18 April 2026)

2.     Dealing with money reasonably suspected of being proceeds of crime
[s 400.9(1) of the Criminal Code (Cth)] 3 years’ imprisonment 14 months’ imprisonment
4 months on charge 1

(commences
18 June 2027)

3.
Attempt to possess a commercial quantity of a border controlled drug

[ss 11.1(1) and 311.14(1) Criminal Code (Cth)]
Life imprisonment 9 years and 8 months’ imprisonment
Base

(commences
18 August 2017)

Total Effective Sentence: 11 years’ imprisonment

Non-Parole Period: 6 years and 10 months’ imprisonment

(1) of the Sentencing Act)Pre-sentence detention declaration
(s 18: 484 days

Sentencing Act)Section 6AAA statement (: 15 years’ imprisonment with a non-parole period of 11 years

Charge	Offence	Maximum	Sentence	Cumulation
1.	Dealing with money reasonably suspected of being proceeds of crime [s 400.9(1) of the Criminal Code (Cth)]	3 years’ imprisonment	2 years’ imprisonment	1 year on charge 3 (commences 18 April 2026)
2.	Dealing with money reasonably suspected of being proceeds of crime [s 400.9(1) of the Criminal Code (Cth)]	3 years’ imprisonment	14 months’ imprisonment	4 months on charge 1 (commences 18 June 2027)
3.	Attempt to possess a commercial quantity of a border controlled drug [ss 11.1(1) and 311.14(1) Criminal Code (Cth)]	Life imprisonment	9 years and 8 months’ imprisonment	Base (commences 18 August 2017)
Total Effective Sentence:	11 years’ imprisonment
Non-Parole Period:	6 years and 10 months’ imprisonment
(1) of the Sentencing Act)Pre-sentence detention declaration (s 18:	484 days
*Sentencing Act)*Section 6AAA statement (:	15 years’ imprisonment with a non-parole period of 11 years

On 1 August 2018, Whelan JA refused leave to appeal against sentence on two grounds advanced by the applicant. Those grounds were:

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.

The applicant elected to renew his application on 13 August 2018. Additionally, he sought leave to add two grounds of appeal at the hearing of this application. The additional grounds are:

3.The individual sentences, orders for cumulation, total effective sentence and non-parole period are manifestly excessive, having regard to the applicable maximum penalties and significant factors in mitigation, including the applicant’s early guilty pleas, remorse, youth and lack of prior convictions.
4.The learned sentencing judge erred in finding that the applicant…

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 Kao v The Queen

Details

AGLC: Kao v The Queen [2019] VSCA 84
Case: [2019] VSCA 84
Decision Date: 11 April 2019

CaseChat Overview and Summary

The case of Kao v The Queen involved the appellant, Kao, who appealed against his sentence for dealing with money reasonably suspected of being proceeds of crime and attempting to possess a commercial quantity of a border controlled drug. The appeal was heard in the High Court of Australia. The central issue before the court was whether the trial judge had double counted the applicant's dealing with money in the sentencing process, and whether the sentence and non-parole period were manifestly excessive. The appeal hinged on the proper application of sentencing principles, particularly the consideration of the appellant's early plea, youth, lack of prior convictions, and prospects for rehabilitation.

The High Court considered the application of sentencing principles under the Criminal Code 1995 (Cth) and the case law precedent of Pun v The Queen. The court examined the trial judge's assessment of the seriousness of the offence and the individual circumstances of the appellant. It was noted that the trial judge had given significant weight to the appellant's early plea, youth, and prospects for rehabilitation, but the court found that the sentence was excessive due to the double counting of the dealing with money offence. The court held that the sentence and non-parole period were manifestly excessive, taking into account all relevant factors.

In light of the findings, the High Court allowed the appeal in part and ordered a resentencing of the appellant. The court emphasised the importance of ensuring that each offence is considered separately in the sentencing process and that the overall sentence reflects a just and proportionate outcome. The case underscores the necessity for trial judges to carefully weigh all relevant factors in sentencing, particularly in cases involving multiple offences and significant mitigating circumstances.

The final orders of the court involved the resentencing of the appellant, taking into account the appropriate application of sentencing principles and the specific circumstances of the case. The court's decision provided clarity on the application of the law in cases involving multiple offences and the importance of avoiding double counting in the sentencing process.

Orders