R v Dang

Case [2018] QCA 331


SUPREME COURT OF QUEENSLAND

CITATION:

R v Dang [2018] QCA 331

PARTIES:

R
v
DANG, Duy Nghi
(applicant)

FILE NO/S:

CA No 101 of 2018
SC No 292 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 3 April 2018 (Applegarth J)

DELIVERED ON:

30 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

19 October 2018

JUDGES:

Gotterson and Morrison and McMurdo JJA

ORDER:

The application for leave to appeal be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – where the applicant pleaded guilty to one count of trafficking in methylamphetamine and heroin over a five month period and two related possession offences – where the applicant was sentenced to a term of 10 years and six months for the trafficking offence – where the sentencing judge consequently declared that the applicant had committed a serious violent offence, so that the applicant must serve 80 per cent of his sentence before becoming eligible for parole – where the applicant was the head of a drug trafficking enterprise – where the applicant arranged for drugs to be transported and supplied to a man called Davenport who then supplied the drugs to users – where Davenport had some “autonomy and managerial prerogatives” but was subordinate to the applicant in the enterprise – where Davenport pleaded guilty to trafficking and was sentenced to a term of nine years and nine months without a declaration of a serious violent offence or a parole eligibility date being fixed – where Davenport will have to serve half of his sentence before becoming eligible for parole – where the sentencing judge appears to have accepted that the parity principle might have applied to increase what would otherwise be an appropriate sentence for the applicant, so that Davenport could not feel a genuine sense of grievance – whether the sentencing judge correctly applied the parity principle in sentencing the applicant – whether the applicant could have a reasonable sense of grievance because of the difference between his sentence and that imposed on Davenport –whether, if the sentencing judge erred, this Court would impose a different sentence on the applicant

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of trafficking in a dangerous drug and two counts of possession of a dangerous drug – where the applicant was sentenced to a term of 10 years and six months for the trafficking offence – where the sentencing judge consequently made a serious violent offence declaration, so that the applicant must serve 80 per cent of his sentence before becoming eligible for parole – where the applicant was aged 38 or 39 at the time of the offending, had a criminal history which did not include any previous convictions for drug offences…

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R v Dang [2018] QCA 331
Case
[2018] QCA 331
Decision Date

CaseChat Overview and Summary

The appellant in R v Dang appealed against his sentence, challenging both the application of the parity principle in sentencing and the excessiveness of his sentence. The appellant had pleaded guilty to trafficking in methylamphetamine and heroin over a five-month period and two related possession offences. He was sentenced to a term of 10 years and six months for the trafficking offence, with the sentencing judge declaring that the offence was a serious violent offence. This meant the appellant must serve 80 per cent of his sentence before becoming eligible for parole. The appellant, who was the head of a drug trafficking enterprise, arranged for drugs to be transported and supplied to a man named Davenport, who then supplied the drugs to users. Davenport pleaded guilty to trafficking and was sentenced to a term of nine years and nine months without a declaration of a serious violent offence or a parole eligibility date being fixed.

The appellant contended that the sentencing judge should have applied the parity principle to ensure that Davenport, who had some autonomy and managerial prerogatives but was subordinate to the appellant in the enterprise, received a harsher sentence. The appellant argued that the difference in sentences meant he could not have a reasonable sense of grievance, and that the sentence for the trafficking offence was manifestly excessive. The court needed to decide whether the sentencing judge correctly applied the parity principle and whether the appellant's sentence was manifestly excessive. The court also considered whether, if the sentencing judge erred, it should impose a different sentence on the appellant.

The court held that the sentencing judge had considered the parity principle but did not apply it to increase the appellant's sentence. The court found that the appellant could have a reasonable sense of grievance because of the difference between his sentence and that imposed on Davenport. However, the court held that the difference in sentences was not significant enough to warrant interference with the appellant's sentence. The court found that the sentence for the trafficking offence was not manifestly excessive, given the appellant's role as the head of a drug trafficking enterprise. The application for leave to appeal was refused.

Orders

Orders of the court

The application for leave to appeal be refused.

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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