Mang v The Queen - [2022] VSCA 10

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0114

SANG ZUNG MANG	Applicant
v
THE QUEEN	Respondent

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JUDGE:	McLEISH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	11 February 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 10
JUDGMENT APPEALED FROM:	DPP v Yasiri (County Court of Victoria, Judge Meredith, 25 June 2021)

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CRIMINAL LAW – Leave to appeal – Sentence – One charge of home invasion – One charge of intentionally damaging property – Related summary offence – Applicant already serving sentence with under 4 months left to run – Sentence of 4 years and 9 months ordered to be served concurrently – Whether judge erred in applying principle of totality – Leave to appeal refused.

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Written submissions:	Counsel	Solicitors
For the Applicant	Ms J McColl	Victoria Legal Aid
For the Respondent	Mr G Buchhorn	Ms A Hogan, Solicitor for Public Prosecutions

McLEISH JA:

On 24 June 2021, the applicant pleaded guilty, before a judge of the County Court, to one charge of home invasion,[1] one charge of intentionally damaging property, [2] and one related summary charge of possessing a controlled weapon.[3]
[1]Contrary to Crimes Act 1958 s 77A.
[2]Contrary to Crimes Act 1958 s 197(1).
[3]Contrary to Control of Weapons Act 1990 s 6(1).

On 25 June 2021, the judge sentenced him as follows:

Charge on indictment C2014078	Offence	Maximum	Sentence	Cumulation
1	Home invasion	25 years’ imprisonment	4 years’ imprisonment	Base
2	Intentionally damaging property	10 years’ imprisonment	18 months’ imprisonment	8 months
Related summary offence
Charge 4	Possessing a controlled weapon	1 year’s imprisonment	4 months’ imprisonment	1 month
Total effective sentence		4 years and 9 months’ imprisonment
Non-parole period		3 years
Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991		20 days
6AAA statement		6 years’ imprisonment with a non-parole period of 4 years
Other relevant orders		Disposal order (machete)

At the time of sentence, the applicant was already serving a sentence of

2 years and 1 month’s imprisonment with an 18 month non-parole period[4] for breaching a community correction order. That sentence was imposed by another judge of the County Court on 15 December 2020. By the time the present sentence was imposed, the non-parole period of the existing sentence had passed, and the existing sentence had less than 4 months to run. The judge ordered that the present sentence be served concurrently with the existing sentence.[5]
[4]DPP v Yasiri (County Court of Victoria, Judge Meredith, 25 June 2021) [91] (‘Sentencing Remarks’).
[5]Ibid [100].

The applicant now applies for leave to appeal on a single proposed ground: that the judge erred in applying the totality principle, by insufficiently moderating the sentence in light of the existing sentence.

For the reasons that follow, the application for leave to appeal will be refused.

Circumstances of offending

At the time of the offending, the applicant was 20 years old. He was subject to a community correction order imposed earlier in 2020 in respect of charges…

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 Mang v The Queen

Details

AGLC: Mang v The Queen [2022] VSCA 10
Case: [2022] VSCA 10
Decision Date: 11 February 2022

CaseChat Overview and Summary

In the matter of Mang v The Queen, the applicant sought leave to appeal against the sentence imposed following his conviction for one charge of home invasion, one charge of intentionally damaging property, and a related summary offence. The applicant was already serving a sentence with less than four months remaining. The sentence imposed was four years and nine months, to be served concurrently with the existing sentence. The applicant argued that the judge had erred in applying the principle of totality when determining the sentence. The court was required to decide whether the judge's application of the principle of totality was correct.

The court examined the principle of totality, which requires that the total sentence imposed on a defendant for multiple offences be proportionate to the overall gravity of the offending. The court considered whether the judge had adequately balanced the need to punish the applicant for his crimes against the need to avoid excessive punishment. The court found that the judge had correctly applied the principle of totality and that the sentence imposed was appropriate in all the circumstances. The court noted that the judge had considered the applicant's existing sentence and the need to avoid excessive punishment, and had imposed a sentence that was proportionate to the overall gravity of the offending.

As a result of the court's decision, the applicant's application for leave to appeal was refused. The court found that the sentence imposed was appropriate and that the judge had correctly applied the principle of totality. The applicant's argument that the judge had erred in applying the principle of totality was rejected. The court's decision ensures that the sentence imposed is proportionate to the overall gravity of the offending, while also taking into account the need to avoid excessive punishment.

Orders