SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0142
| MARYAN DANG | Appellant |
| v | |
| THE QUEEN | Respondent |
---
| 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) |
---
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.
---
| 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]
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,…
Keep reading for free
Create a free CaseChat account to read Maryan Dang v The Queen and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2018] VSCA 43
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.