Maryan Dang v The Queen - [2018] VSCA 43

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0142

MARYAN DANG	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and PRIEST JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 February 2018
DATE OF JUDGMENT:	20 February 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 43
JUDGMENT APPEALED FROM:	DPP v Dang (unreported, County Court of Victoria, Judge Dyer, 21 February 2017)

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CRIMINAL LAW – Appeal – Sentence – Fresh evidence on appeal – Recklessly cause serious injury – Glassing – Unprovoked attack on stranger in nightclub – Plea of guilty – Sentenced to 18 months’ imprisonment with 18 month community correction order – Offender heavily intoxicated – Prior offence of violence when intoxicated – Drinking problem conceded on plea – No suggestion of causative psychological factors – Post-sentence psychologist’s report – Diagnosis of borderline personality disorder – Whether admissible as fresh evidence – Not open to conduct different plea on appeal – Whether non-admission of evidence would cause miscarriage of justice – Sentence moderate in the circumstances – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S J Tovey	Malkoun and Co Lawyers
For the Respondent	Mr B L Sonnet	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P:

Summary

The appellant pleaded guilty to one charge of recklessly causing serious injury and was sentenced to 18 months’ imprisonment, with an 18-month community correction order (‘CCO’) (with conditions attached). She was granted leave to appeal on one ground, namely, that the Court should receive as fresh evidence an expert report which, it is said, goes to the state of her mental health, both at the time of the offending and at the time of sentence, and which should lead the Court to conclude that a lower sentence should be imposed.[1]
[1]Dang v The Queen [2017] VSCA 280.

For reasons which follow, I consider that the evidence should not be received. As will appear, the appellant’s violent conduct on this evening was the product of her gross intoxication on the night in question. Her counsel, on the plea, agreed with the judge that she had a ‘binge drinking problem’.

There was no suggestion made to the sentencing judge that this offending was in any way attributable to any psychological, behavioural or personality issue. In my opinion, this was hardly surprising, given that the appellant’s heavy intoxication was the obvious explanation for her conduct, just as it was admitted to have been the explanation for a previous, similar offence. The association of intoxication with disinhibited behaviour and unprovoked violence is notorious, and occupies a great deal of time in the criminal courts of this State.

The application to lead fresh evidence is, in effect, an attempt to run an entirely different plea in mitigation, to advance a quite different explanation for the offending conduct. That course is simply not open on appeal. The appeal must therefore be dismissed.

The circumstances of the offending

The appellant was aged 26 at the time of the offence. She was,…

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 43
Decision Date: 20 February 2018

CaseChat Overview and Summary

The appellant, Maryan Dang, was convicted and sentenced to 18 months' imprisonment with an 18-month community correction order for recklessly causing serious injury by glassing a stranger in an unprovoked nightclub attack. The case was heard and dismissed on appeal in the High Court of Australia. The central issue for the court was whether the post-sentence psychologist's report diagnosing the appellant with borderline personality disorder should be admitted as fresh evidence, and if the non-admission of this evidence would result in a miscarriage of justice.

The court considered that the diagnosis of borderline personality disorder did not constitute fresh evidence because it did not address any causative psychological factors that might have influenced the offence. The appellant had conceded a drinking problem but did not suggest any psychological causation for the offence. The court ruled that it was not open to the appellant to conduct a different plea on appeal based on the new evidence. The court also found that the sentence was moderate in the circumstances, taking into account the unprovoked nature of the attack, the appellant's prior history of violence while intoxicated, and his heavy intoxication at the time of the offence.

Consequently, the appeal was dismissed, and the original sentence was upheld. The court determined that admitting the psychologist’s report would not alter the overall sentencing, as the appellant's intoxication and prior violent conduct were already considered in the original sentence. The court held that there was no miscarriage of justice in not admitting the fresh evidence, and the sentence was appropriate given the circumstances of the case.

Orders