R v Dang - [2009] VSCA 183

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 846 of 2007

THE QUEEN
	v
HONG MINH DANG

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JUDGES:	ASHLEY and DODDS-STREETON JJA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 August 2009
DATE OF JUDGMENT:	18 August 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 183
JUDGMENT APPEALED FROM:	R v Dang (Unreported, County Court of Victoria, Judge Smallwood, 11 October 2007)

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CRIMINAL LAW – Sentencing – Trafficking in a drug of dependence, cultivating a narcotic plant and theft – Where appellant’s house subject to automatic forfeiture under Confiscation Act 1997, but outstanding application for exclusion at date of sentence – Exclusion application subsequently refused – Sentencing judge took into account ‘in a general way only the possibility’ of forfeiture – Fresh evidence received – Consideration of forfeiture on sentence – R v McLeod (2007) 16 VR 682; R v Cochrane [2008] VSCA 60 affirmed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr J P Wheelahan	Victoria Legal Aid

ASHLEY JA:

Dodds-Streeton JA will give the judgment of the Court.

DODDS-STREETON JA:

On 11 October 2007, the appellant pleaded guilty in the County Court at Melbourne to one count of trafficking in a drug of dependence (cannabis L),[1] one count of cultivating a narcotic plant (cannabis L)[2] and one count of theft of electricity.[3] He was sentenced to a total effective sentence of three years and ten months' imprisonment, with a non-parole period of two years. Orders were made for the forfeiture of drugs and drug paraphernalia,[4] the forfeiture of cash in the sum of $2,076,[5] and the payment of a pecuniary penalty of $5,924.[6]
[1]Section 71AC, Drugs Poisons and Controlled Substances Act 1981, maximum penalty 15 years’ imprisonment.
[2]Section 72A, Drugs Poisons and Controlled Substances Act 1981, maximum penalty 25 years’ imprisonment.
[3]Section 74, Crimes Act 1958, maximum penalty 10 years’ imprisonment.
[4]Section 78(1) Confiscation Act 1997.
[5]Section 33(1) Confiscation Act 1997.
[6]Section 59(1) Confiscation Act 1997.

At the plea the prosecutor indicated that there was no pre-sentence detention, and the sentencing judge acted upon that indication. The appellant, however, had in fact served four days’ pre-sentence detention and so an appropriate declaration should have been made pursuant to s 18 of the Sentencing Act1991.

On 3 April 2009, Redlich JA granted the appellant leave to appeal.

Circumstances of the Offending

The circumstances of the offending were set out by the sentencing judge. His Honour said:

… [O]n 20 November 2006 police raided premises at 46 Pridham Street, Maribyrnong. You resided there with your son. In the premises police found cannabis plants and equipment in three rooms of the house. In simple terms, it was a hydroponic drug crop. In the first room were 30 cannabis plants weighing 28.2 kilograms wet. In the third room were 27 cannabis plants weighing 21.95 kilograms wet. The total saleable cannabis which could have been procured from those plants was approximately…

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 [2009] VSCA 183
Case: [2009] VSCA 183
Decision Date: 18 August 2009

CaseChat Overview and Summary

The respondents brought an appeal against the appellant, Dang, in relation to various drug and theft charges. The appeal was heard in the Victorian Court of Appeal. The central issue before the court was whether the sentencing judge had appropriately considered the possibility of the appellant's house being subject to automatic forfeiture under the Confiscation Act 1997. This was particularly relevant because, while an application for exclusion of the house from forfeiture was pending at the time of sentencing, it was subsequently refused. The court was required to determine whether the sentencing judge's consideration of the possibility of forfeiture was adequate and whether the fresh evidence received should have prompted a reassessment of the forfeiture on sentence.

The court found that the sentencing judge had considered the possibility of forfeiture in a general way only and did not delve into the specifics of the potential forfeiture. The court held that the sentencing judge should have considered the impact of the forfeiture more thoroughly, particularly in light of the fresh evidence that was received. The court relied on the decisions in R v McLeod and R v Cochrane to affirm that a court must consider the potential for forfeiture when sentencing a defendant, especially when there is a pending application for exclusion. The court concluded that the sentencing judge's consideration of forfeiture was insufficient and that the appeal should be allowed on the basis that the sentence was manifestly inadequate.

Consequently, the appeal was allowed, and the matter was remitted to the sentencing judge to reconsider the sentence with proper regard to the potential for forfeiture. The court did not specify the new sentence but directed that the sentencing judge take into account the full implications of the potential forfeiture. This decision reinforces the importance of considering all relevant factors, including potential forfeiture under the Confiscation Act 1997, in the sentencing process.

Orders