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Kwag v The King

Kwag v The King

Case [2024] VSCA 279 22 November 2024

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0132

SEONG KWAG	Applicant
v
THE KING	Respondent

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JUDGES:	MACAULAY and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September 2024
DATE OF JUDGMENT:	22 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 279
JUDGMENT APPEALED FROM:	[2023] VCC 1067 (Judge Tinney)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Applicant convicted of offences including trafficking large commercial quantity of methylamphetamine, trafficking commercial quantity of cocaine – Total effective sentence 16 years, non-parole period 10 years – Base sentence 13 years for large commercial quantity offence – Sentence 9 years 6 months, 2 years cumulation for commercial quantity offence – Whether sentences for trafficking offences, total effective sentence, non-parole period manifestly excessive – Standard sentence 16 years for large commercial quantity offence – Applicant played vital and trusted role within serious high-level criminal enterprise – Personal circumstances taken into account in mitigation – Regard to current sentencing practice – General deterrence prominent – Sentence within permissible range – Leave to appeal refused.

Drugs, Poisons and Controlled Substances Act 1981, ss 71(1), 71AA(1); Sentencing Act 1991, ss 5A, 5(2)(b).

Hili v The Queen (2010) 242 CLR 520; AB v The Queen (1999) 198 CLR 111; Lieu v The Queen (2016) 263 A Crim R 173; Dao v The Queen [2014] VSCA 93; DPP v Larrain [2022] VCC 1405, considered.

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Counsel
Applicant:		Mr P Morrissey SC
Respondent:		Mr JCJ McWilliams
Solicitors
Applicant:	Ann Valos Criminal Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

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MACAULAY JA
KAYE JA:

Introduction

On 6 September 2021, firefighters attended an apartment rented by the applicant in Melbourne. They were responding to a fire alarm, the source of which was an activated sprinkler head inside the applicant’s apartment. Upon their arrival, the firefighters observed a large amount of water coming out of the apartment. After several knocks went unanswered, the applicant — soaking wet — eventually answered the door and the firefighters entered. After investigating the cause of the sprinklers being activated and observing indicia of a drug laboratory in use, the firefighters alerted police who attended and later arrested the applicant.
On 15 July 2022, the applicant pleaded guilty to four indictable offences and two related summary offences, as set out below. Following a plea hearing in the County Court, Judge Tinney sentenced the applicant on 23 June 2023 as follows:[1]
[1]DPP v Kwag [2023] VCC 1067 (Judge Tinney) (‘Reasons’).

Charge Offence Maximum Sentence Cumulation

1 Trafficking in a Drug of Dependence – Large Commercial Quantity[2] Life imprisonment 13 years Base

2 Trafficking in a Drug of Dependence – Commercial Quantity[3] 25 years 9 years and 6 months 2 years

3 Knowingly deal with proceeds of crime[4] 20 years 3 years and 6 months 1 year

4 Retention of stolen goods[5] 15 years 3 months Nil

Related Summary Offences

6 Possess a prohibited weapon without exemption or approval[6] 2 years or 240 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 Kwag v The King

Details

AGLC: Kwag v The King [2024] VSCA 279
Case: [2024] VSCA 279
Decision Date: 22 November 2024

CaseChat Overview and Summary

The case of Kwag v The King involved the applicant, Kwag, who was convicted of multiple drug trafficking offences, including trafficking a large commercial quantity of methylamphetamine and a commercial quantity of cocaine. The applicant was sentenced to a total effective term of 16 years, with a non-parole period of 10 years. The base sentence for the large commercial quantity offence was 13 years, with an additional 9 years and 6 months for the commercial quantity offence, and 2 years for the cumulative effect. Kwag applied for leave to appeal against the severity of the sentences, arguing that they were manifestly excessive.

The court was required to determine whether the sentences imposed for the trafficking offences, as well as the total effective sentence and the non-parole period, were manifestly excessive. The court considered the statutory provisions under the Drugs, Poisons and Controlled Substances Act 1981 and the Sentencing Act 1991, along with relevant case law such as Hili v The Queen, AB v The Queen, Lieu v The Queen, Dao v The Queen, and DPP v Larrain. The court examined the role Kwag played in the criminal enterprise, the personal circumstances considered in mitigation, and the principles of general deterrence in sentencing.

After a thorough review, the court found that the sentences were within the permissible range, considering the role Kwag played in a high-level criminal operation and the principle of general deterrence. The court held that the sentences were not manifestly excessive and denied the applicant leave to appeal. The applicant's total effective sentence of 16 years and the non-parole period of 10 years were deemed appropriate under the circumstances.

Orders