| 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…
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- AGLC
- Kwag v The King [2024] VSCA 279
- Case
- [2024] VSCA 279
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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