R v Dang - [1999] QCA 414

IN THE COURT OF APPEAL [1999] QCA 414
SUPREME COURT OF QUEENSLAND
CA No 239 of 1999
Brisbane
[R v Dang]
THE QUEEN
v
HOA DANG
(Applicant)
Davies JA Ambrose J Cullinane J

Judgment delivered 1 October 1999
Joint reasons for judgment of Davies JA and Cullinane J; separate reasons of Ambrose J concurring as to the orders made.
SET ASIDE SENTENCES ON EACH OF COUNTS 3, 4, 5, 6, 7, 8, 10 AND 11 BUT OTHERWISE REFUSE THE APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE.
CATCHWORDS: CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE
Applicant convicted of trafficking in heroin and other drug- related offences - whether sentencing judge declared time spent in custody to be imprisonment already served under the sentence - whether sentence without any parole recommendation was excessive - distinction between addicted and non-addicted drug dealers - effect on sentence of efforts to rehabilitate - prior criminal history - whether separate sentences should be imposed for the counts of supply which constituted the trafficking.
Penalties and Sentences Act 1992, s 161(1)
Clarke (CA No 393 of 1996, 29 November 1996), distinguished Nguyen (CA No 501 of 1995, 22 February 1996), distinguished R v Elhusseini [1988] 2 QdR 442, applied
R v Kiripatea [1991] 2 QdR 686, applied
Van Cam Lam (CA No 166 of 1999, 30 July 1999); [1999]
QCA 299, followed

Woods (CA No 381 of 1994, 2 December 1994), applied

Counsel: Mr A Boe (not of counsel) for the applicant
Mr A Collins for the respondent
Solicitors: Boe & Callaghan for the applicant
Director of Public Prosecutions (Queensland) for the respondent
Hearing Date: 8 September 1999

DAVIES JA AND CULLINANE J: The applicant was convicted on his own plea of guilty on 23 June last and on the same day sentenced to an effective term of nine years imprisonment on 12 counts all involving the drug heroin. On count 1, which was the offence of trafficking in heroin he was sentenced to nine years imprisonment; on count 2, unlawful possession of that drug with a circumstance of aggravation he was sentenced to four years imprisonment; on counts 3, 4, 5, 6, 7, 8, 10 and 11 which were offences of unlawful supply he was also sentenced to four years imprisonment; on count 9 which was one of unlawful possession he was sentenced to three years imprisonment; and on count 12, an offence of possession of a motor vehicle and a mobile phone for use in connection with the commission of a crime defined in Part 2 of the Drugs Misuse Act, he was sentenced to one years imprisonment. All of these terms were to be served concurrently.
The applicant had spent 222 days in custody in relation to proceedings for these offences and for no other reason. The appeal was argued on both sides on the assumption that the learned sentencing judge ordered that that period not…

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 [1999] QCA 414
Case: [1999] QCA 414
Decision Date: 1/10/1999

CaseChat Overview and Summary

In the Court of Appeal, the applicant, Hoa Dang, appealed against his sentence for drug-related offences. The court considered the legality of the sentence and the application for leave to appeal against the sentence. The appeal was argued on the assumption that the sentencing judge did not declare the time spent in custody to be imprisonment already served under the sentence, but the court found that the judge did give credit for the time spent in pre-sentence custody. The applicant argued that the sentence was excessive due to his drug addiction, but the court found that the sentence was appropriate considering the aggravating factors.

The court found that the sentence imposed, although high, was not so excessive as to require the intervention of the court. The court set aside the sentences on counts 3, 4, 5, 6, 7, 8, 10 and 11, as they were part of the trafficking offence, and otherwise refused the application for leave to appeal against the sentence.

Orders