Maryan Dang v The Queen - [2017] VSCA 280

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0142

MARYAN DANG	Applicant
V
THE QUEEN	Respondent

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JUDGE:	SANTAMARIA JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	3 October 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 280 First Revision: 3 October 2017
JUDGMENT APPEALED FROM:	[2017] VCC 116 (Judge Dyer)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

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CRIMINAL LAW – Application for leave to appeal against sentence – Recklessly causing serious injury – Sentence of 1 year and 6 months’ imprisonment with community corrections order – No non-parole period – Fresh evidence – Evidence as to mental health of applicant at time of offending and sentence – Where evidence in form of psychologist reports – Leave to appeal granted.

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APPEARANCES:	Counsel	Solicitors
On the papers

SANTAMARIA JA:

The applicant, now aged 27, pleaded guilty to one charge of recklessly causing serious injury. On 21 February 2017, she was sentenced in the County Court as follows:

Charge on indictment Offence Maximum penalty Sentence

3 Recklessly cause serious injury
[Crimes Act 1958
s 17] 15 years’ imprisonment 1 year and 6 months’ imprisonment and 1 year and 6 month community corrections order (150 hours community work, supervision, treatment and rehabilitation)

Total effective sentence: 1 year and 6 months’ imprisonment and 1 year and 6 month community corrections order (150 hours community work, supervision, treatment and rehabilitation)

Non-parole period: N/A

Pre-sentence detention declaration 1 day

Section 6AAA Statement 5 years’ imprisonment with a non-parole period of 3 years and 6 months’ imprisonment

Other relevant orders Forensic sample order

The applicant now seeks leave to appeal her sentence.

Circumstances of the offending

On the evening of 30 April 2016, the applicant attended a bar on Little Collins Street, Melbourne, with a number of other females.

Shortly after midnight, on 1 May 2017, the applicant was sitting with a group of friends in the smoking area of the bar. The victim, who was unknown to the applicant, entered that area with two friends. As they entered, some of the applicant’s friends left the area. The victim and his friends walked over to where the applicant and her friends were sitting.

A friend of the victim overheard a female saying to a male, ‘It’s a just a drink’. The victim’s friend asked the male where his drink was, to which the male replied, ‘the drunk girl just spilt it all over me’.

At this time, the applicant re-entered the bar and picked up a champagne bottle from a nearby table. She returned to the smoking area, where the victim was sitting with his back to the wall. She walked up to the victim and struck him directly to the left side of his face with the bottle, causing him to collapse and grab his face. The applicant left the bar shortly after the incident, which was captured on CCTV.

The…

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: [2017] VSCA 280
Decision Date: 3 October 2017

CaseChat Overview and Summary

The case of Maryan Dang v The Queen involved the applicant seeking leave to appeal against his sentence for recklessly causing serious injury. The applicant had been sentenced to 1 year and 6 months’ imprisonment with a community corrections order, and there was no non-parole period imposed. The court was required to consider the application for leave to appeal on the basis of fresh evidence, specifically psychologist reports that provided insight into the applicant's mental health at the time of the offence and sentencing. The Federal Court had to determine whether the fresh evidence was significant enough to warrant an appeal against the sentence.

The central legal issues before the court were whether the fresh evidence, in the form of psychologist reports, was significant enough to merit an appeal and whether it provided a substantial ground for questioning the fairness or appropriateness of the original sentence. The court considered whether the new evidence presented a compelling reason to review the sentence, particularly in light of the applicant's mental health at the relevant times.

The court granted the application for leave to appeal, finding that the fresh evidence provided a substantial ground for questioning the fairness and appropriateness of the original sentence. The psychologist reports indicated that the applicant's mental health significantly impacted his behaviour at the time of the offence and his capacity to understand the consequences of his actions. This new evidence was deemed significant enough to warrant a review of the sentence. The court recognised that a proper understanding of the applicant's mental health could have influenced the sentencing decision.

The final orders of the court were that leave to appeal against the sentence was granted. The court directed that the appeal be heard, allowing the applicant an opportunity to argue the impact of his mental health on the original sentencing decision. This decision underscores the importance of considering mental health evidence in criminal sentencing and its potential to influence the outcome of an appeal.

Orders