R v Dang

Case [2018] QCA 331 30 November 2018

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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…

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 R v Dang

Details

AGLC: R v Dang [2018] QCA 331
Case: [2018] QCA 331
Decision Date: 30 November 2018

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

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.

Citations

AGLC Citation

R v Dang [2018] QCA 331

Most Recent Citation

R v Nunn [2019] QCA 100

Cases citing this decision · 9 of 9 shown

R v Latter
[2025] QCA 70 Para 21

…nored.[1] However, the substantial differences between the respective parole eligibility periods is not the only relevant consideration. [1] R v Dang [2018] QCA 331 at [37] per McMurdo JA with whom Gotterson and Morrison JJA agreed and referred to by Bond JA in R v Smith (2022) 10 QR 725 per Bond JA (with whom Mo…
R v Smith
[2022] QCA 89 Para 16

…by the mandatory requirements of the serious violent offender sentencing statutory regime: see R v Bojovic [2000] 2 Qd R 183 at 191 [34] and R v Dang [2018] QCA 331 at [32]. But, nevertheless, the application of the parity principle should not be regarded as having been excluded by statute: R v Dang [2018] QCA 33…
Rolls v Queensland Police Service
[2021] QDC 339 Para 25

…achieve parity with Roma’s sentence. In my respectful view, such an approach was wrong. As Justice McMurdo noted in R v Dang [2018] QCA 331, the parity principle is not to be used in that way. His Honour quoted Kaye AJA in Majeed v The Queen [2013] VSCA 40, pointing out: ‘The principle of parity is only relevant…
R v Matauaina
[2020] QCA 274 Para 24

…e sentences having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. [7] R v Dang [2018] QCA 331 at [30]. [8](1997) 189 CLR 295 at 309 (McHugh J) and 301-302 (Dawson and Gaudron JJ). [9] Postiglione v The Queen (1997) 189 CLR 295 at 302 (Dawson and G…
R v Lowien
[2020] QCA 186 Para 23

…of comparatives. [2][2019] QCA 69. [3][2018] QCA 341. [4][2018] QCA 281. [5][2018] QCA 22. [6][2004] QCA 306. [7][2014] QCA 264. [8][2015] QCA 34. [9][2018] QCA 331. [10][2018] QCA 355.…
R v Anthony
[2020] QCA 79

…As Justice McMurdo noted in R v Dang [2018] QCA 331, the parity principle is not to be used in that way. His Honour quoted Kaye AJA in Majeed v The Queen [2013] VSCA 40, pointing out:…
R v Walker
[2019] QCA 180 Para 29

…be manifestly excessive and called for the intervention of an appellate court in the interests of justice.” (emphasis added)” [31][2018] QCA 331 at [38] per McMurdo JA (Gotterson and Morrison JJA concurring). [32] Dang at [38] referring to Lowe v The Queen (1984) 154 CLR 606 at 610; [1984] HCA 46; cited in Green…
R v Nunn
[2019] QCA 100 Para 11

…[1], [2] and [46] – [47]; R v Abbott [2017] QCA 57 at [1], [23] and [25]; R v Castner [2018] QCA 265 at [1], [26] – [28], [33]; R v Dang [2018] QCA 331 at [1], [2] and [26]. See also R v Safi [2015] QCA 13 at [1], [18] and [21]; R v McGinniss [2015] QCA 34 at [1], [11], [14]; R v Ahmetaj (2015) 256 A Crim R 203…
Higgins v The State of Western Australia
[2019] WASCA 78 Para 9

…15 [13], cited with approval in Matthews v The Queen [2014] VSCA 291; (2014) 44 VR 280 [130]; Saner v The Queen [2014] VSCA 134 [61] - [64]; R v Dang [2018] QCA 331 [40], second and third sentences.…

View all 9 citing cases →

Cases cited in this decision · 26 of 26 shown

R v Davenport
[2018] QCA 330 Para 7

…rate judgment, the Court (constituted by Morrison, Philippides and McMurdo JJA) has refused leave to appeal against Davenport’s sentence.[29] [29][2018] QCA 330.…
R v Castner
[2018] QCA 265 Para 4

….[28] [26][2009] QCA 376 at [33]. [27][2014] QCA 79 at [45]. [28][2015] QCA 34 at [11]; see also R v Abbott [2017] QCA 57 at [23] and R v Castner [2018] QCA 265 at [28].…
R v Carlisle
[2017] QCA 258 Para 18

…circumstances in which he descended into drug use and drug trafficking, the appropriate sentence was that which he then imposed. [9][2017] QCA 258.…
R v Hughes
[2017] QCA 178 Para 14

…reason only of the statutory rule setting the minimum time to serve, relevant as between [those two offenders]”. [41][2018] 2 Qd R 134 at [31]; [2017] QCA 178.…
R v Frith
[2017] QCA 143 Para 22

…Drugs Misuse Act 1986 (Qld), by which 80 per cent of the sentence had to be served. The case is not relevantly comparable to the present one. [16][2017] QCA 143. [17]Ibid at [13] – [14].…
R v Abbott
[2017] QCA 57 Para 4

…ent of the other members of that Court.[28] [26][2009] QCA 376 at [33]. [27][2014] QCA 79 at [45]. [28][2015] QCA 34 at [11]; see also R v Abbott [2017] QCA 57 at [23] and R v Castner [2018] QCA 265 at [28].…
R v Hunt
[2016] QCA 297 Para 21

…that case was clearly below that in the present case, as appears from the circumstances of the offending set out in the Court’s judgment.[15] [14][2016] QCA 297. [15]Ibid at [4] – [5].…
R v Ahmetaj
[2015] QCA 248 Para 14

…hmetaj ,[3] R v Feakes ,[4] R v Tran ,[5] R v Johnson ,[6] R v Willoughby [7] and R v Markovski .[8] [2](2011) 244 CLR 462; [2011] HCA 49. [3][2015] QCA 248. [4][2009] QCA 376. [5][2006] QCA 174. [6][2014] QCA 79. [7][2009] QCA 105. [8][2009] QCA 299.…
R v McGinniss
[2015] QCA 34 Para 2

…evantly, the Court there endorsed what was said by Fraser JA in R v McGinniss ,[24] to which I will return. [22][2015] QCA 248. [23]Ibid at [91]. [24][2015] QCA 34 at [11].…
R v Bost
[2014] QCA 264 Para 20

…ion, was not manifestly excessive. It did not involve determination by the court that a heavier sentence would have been impermissible. [10][2014] QCA 264. [11]Ibid at [13]. [12]Ibid at [22]. [13]Ibid at [13].…
R v Johnson
[2014] QCA 79 Para 14

…] R v Willoughby [7] and R v Markovski .[8] [2](2011) 244 CLR 462; [2011] HCA 49. [3][2015] QCA 248. [4][2009] QCA 376. [5][2006] QCA 174. [6][2014] QCA 79. [7][2009] QCA 105. [8][2009] QCA 299.…
Majeed v The Queen
[2013] VSCA 40 Para 8

…g discretion. However leave to appeal should not be granted if this Court would not impose a different sentence. [30][2003] NSWCCA 139. [31][2013] VSCA 40 at [49] (footnotes omitted).…
Green v The Queen; Quinn v The Queen
[2011] HCA 49 Para 9

…ifference between the sentences was unjustified. [32] Postiglione v The Queen (1997) 189 CLR 295 at 302 per Dawson and Gaudron JJ; [1997] HCA 26; Green v The Queen (2011) 244 CLR 462 at 473 [28] per French CJ, Crennan and Kiefel JJ.…
R v Meerdink
[2010] QCA 273 Para 13

…ion bearing in mind that there were significant differences between the relative criminality of each of the co-offenders in that case.” [38][2010] QCA 273. [39][2005] 2 Qd R 533; [2005] QCA 223. [40][2008] QCA 261 at [36].…
R v Feakes
[2009] QCA 376 Para 14

…kes ,[4] R v Tran ,[5] R v Johnson ,[6] R v Willoughby [7] and R v Markovski .[8] [2](2011) 244 CLR 462; [2011] HCA 49. [3][2015] QCA 248. [4][2009] QCA 376. [5][2006] QCA 174. [6][2014] QCA 79. [7][2009] QCA 105. [8][2009] QCA 299.…
R v Markovski
[2009] QCA 299 Para 14

…i .[8] [2](2011) 244 CLR 462; [2011] HCA 49. [3][2015] QCA 248. [4][2009] QCA 376. [5][2006] QCA 174. [6][2014] QCA 79. [7][2009] QCA 105. [8][2009] QCA 299.…
R v Willoughby
[2009] QCA 105 Para 14

…7] and R v Markovski .[8] [2](2011) 244 CLR 462; [2011] HCA 49. [3][2015] QCA 248. [4][2009] QCA 376. [5][2006] QCA 174. [6][2014] QCA 79. [7][2009] QCA 105. [8][2009] QCA 299.…
R v Mikaele
[2008] QCA 261 Para 13

…between the relative criminality of each of the co-offenders in that case.” [38][2010] QCA 273. [39][2005] 2 Qd R 533; [2005] QCA 223. [40][2008] QCA 261 at [36].…
R v Elizalde
[2006] QCA 330 Para 1

…of nine years’ imprisonment was manifestly excessive.[21] Again, it was not said that a higher sentence would have been impermissible. [18][2006] QCA 330. [19]Ibid at [8]. [20]Ibid [13]. [21]Ibid [21].…
R v Tran
[2006] QCA 174 Para 14

…[5] R v Johnson ,[6] R v Willoughby [7] and R v Markovski .[8] [2](2011) 244 CLR 462; [2011] HCA 49. [3][2015] QCA 248. [4][2009] QCA 376. [5][2006] QCA 174. [6][2014] QCA 79. [7][2009] QCA 105. [8][2009] QCA 299.…
R v Cowie
[2005] QCA 223 Para 13

…nificant differences between the relative criminality of each of the co-offenders in that case.” [38][2010] QCA 273. [39][2005] 2 Qd R 533; [2005] QCA 223. [40][2008] QCA 261 at [36].…
R v El Hassan
[2003] NSWCCA 139 Para 8

…ercise of the sentencing discretion. However leave to appeal should not be granted if this Court would not impose a different sentence. [30][2003] NSWCCA 139. [31][2013] VSCA 40 at [49] (footnotes omitted).…
R v Crossley
[1999] QCA 223 Para 12

…estion because there was no unjustified disparity between the sentences, even considering the non-parole periods.[37] [35](1999) 106 A Crim R 80; [1999] QCA 223. [36](1999) 106 A Crim R 80 at 86 [25] per Pincus JA and at 88 [34] per McPherson JA. [37]Ibid 82 83 [9] – [12].…
R v Bojovic
[1999] QCA 206 Para 10

…ts of s 161B(1) will inevitably interfere with the courts’ capacity to maintain parity and consistency …”. [33][2000] 2 Qd R 183 at 191 [34]; [1999] QCA 206.…
Postiglione v the Queen
[1997] HCA 26 Para 9

…he particular difference between the sentences was unjustified. [32] Postiglione v The Queen (1997) 189 CLR 295 at 302 per Dawson and Gaudron JJ; [1997] HCA 26; Green v The Queen (2011) 244 CLR 462 at 473 [28] per French CJ, Crennan and Kiefel JJ.…
Lowe v R
[1984] HCA 46 Para 16

…a fundamental element in any rational and fair system of criminal justice”.[42] [42] Lowe v The Queen (1984) 154 CLR 606 at 610 per Mason J; [1984] HCA 46; cited in Green v The Queen (2011) 244 CLR 462 at 473 [28] per French CJ, Crennan and Kiefel JJ.…

Legislation cited in this decision · 2

Penalties and Sentences Act 1992 (Qld)
161A(a) 2 mentions (from Para 3)
Drugs Misuse Act 1986 (Qld)
1 mention (from Para 22)

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…