R v Dang
[2009] VSCA 183
•18 August 2009
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 9 kilograms.
You confessed to police that in the preceding months you had trafficked approximately $8,000 worth of a crop you had previously grown. You said that that amounted to no more than 2 kilograms.
You clearly were aware of the value of what you were growing and had the capacity to sell it. There is no doubt that the cultivation was solely for the purpose of sale and that the immature cannabis plants, if they survived, were to be used for the same purpose. In those circumstances you were engaged in an ongoing business of growing and selling cannabis for reward. The method by which you were doing so was relatively sophisticated and included the bypassing of the electricity meter. I am not aware of any amount but the equipment being used must have caused you some outlay.[7]
To that synopsis should be added the judge's finding that the appellant's criminal conduct spanned a period beginning in June 2006 and ending in November that year, and the fact that count 1 on the presentment, the count of trafficking, was based solely on the appellant's admission.
[7]R v Dang (Unreported, County Court of Victoria, Judge Smallwood, 11 October 2007), [5] – [7].
Grounds of Appeal
The appellant sought leave, which was granted, to amend the Full Statement of Grounds filed on 4 May 2009 by the inclusion of ground 3, to read:
Ground 1:The learned sentencing judge gave insufficient weight to the forfeiture of the appellant's home under the Confiscation Act.
Ground 2:Evidence of the forfeiture of the appellant's property subsequent to the imposition of sentence should be admitted and the appellant should be re-sentenced accordingly.
Ground 3:The learned sentencing judge failed to deduct pre-sentence detention pursuant to s 18 of the Sentencing Act.
Grounds 1 and 2
In 1998, jointly with his wife, the appellant purchased the Maribyrnong home in which the offences the subject of counts 1 and 2 were committed. In 2002, following the breakdown of his marriage, title was transferred to the appellant alone.
By reason of the nature of the offences committed, the property was subject to automatic forfeiture pursuant to s 35(1) of the Confiscation Act 1997, but that was subject to any successful application for exclusion under s 20 of that Act.
At the time when the appellant was sentenced, there was an outstanding application for exclusion made by his estranged wife.
The sentencing judge found that the appellant had lawfully acquired the property. That brought s 5(2A)(ab) of the Sentencing Act into play. It was then open to his Honour to treat forfeiture of the property as a mitigatory circumstance. But at that time it could not be said, because of the outstanding exclusion application, whether the property would be forfeited. In those circumstances, his Honour correctly took into account only the possibility that the home would be forfeited. He said:
I take into account in a general way only the possibility that your house will be forfeit to the Crown. I am unable on the information before me to make any positive findings in that regard, and it can only play a part in the instinctive synthesis of the sentence that I impose.[8]
[8]Ibid [16].
His Honour could do no more than that on the material before him. His approach was entirely consistent with R v McLeod,[9] which his Honour considered and upon which the appellant relies.
[9](2007) 16 VR 682; [2007] VSCA 183.
An affidavit affirmed on 4 August 2009 by the appellant's solicitor, Amanda Carter, reveals that the wife's exclusion application was dismissed on 10 February 2009; and that on 19 May 2009 a County Court judge declared that the appellant's interest in the property had been automatically forfeited to the State.
In an earlier affidavit affirmed on 22 July 2008, the appellant's solicitor exhibited a valuation of the property as at June 2008; and evidence as to an outstanding loan secured by a mortgage over the property. The valuation was $650,000 and the outstanding loan was just over $317,000.
The consequence of the forfeiture, in the event, was that the appellant lost equity in that property of about $333,000.
In the circumstances, we can now address grounds 1 and 2.
Although ground 1 was pursued before us, we consider that there is nothing in it. As we have already said, the judge could have done no more than give the possibility of forfeiture some, but indefinite, weight in the overall sentencing synthesis.
We turn to ground 2. Before us, the Crown properly conceded that the evidence as to the appellant's interest in the property at Maribyrnong and the loss he has suffered due to the forfeiture should be admitted. The evidence of what has actually happened with respect to the property since sentence was passed shows the true significance of facts in existence at the time of the sentence.
The sentence actually passed was, in our opinion, appropriate to the then known circumstances of the offence and the offender. But the impact upon the offender as we now know it – specifically, forfeiture of his lawfully acquired property, which was his family home – has now been demonstrated to be greater than was knowable at the time of the sentence.
In our opinion, the now quantifiable loss suffered by the appellant is a mitigatory factor and it warrants imposition of a lesser sentence, notwithstanding the respondent's submission that the sentence imposed below was lenient and should stand. In R v Pajic, Redlich JA (with whom Ashley JA agreed) stated:
Forfeiture of the appellant's lawfully acquired property is a mitigatory factor in sentencing since it placed the appellant in a worse position than he was before the commission of the offence. It therefore had a punitive and deterrent effect. The sentencing principle of proportionality required that the effect of forfeiture on the appellant and whether it may have had a substantially deterrent effect, should be taken into account.[10]
[10][2009] VSCA 53, [26].
We consider, then, that the appeal should be allowed and the sentence quashed, and that in lieu thereof the appellant should be re-sentenced to 15 months' imprisonment on count 1, two years and nine months' imprisonment on count 2, and three months' imprisonment on count 3. We will direct that seven months of the sentence on count 1 and one month of the sentence on count 3 be cumulated on each other and on the sentence on count 2. The total effective sentence will thus be three years and five months' imprisonment. We will fix a non-parole period of 21 months' imprisonment. In the event, the appellant will now be eligible for parole.
Ground 3
Since we have decided that the appeal must be allowed and the appellant re-sentenced, an appropriate declaration can be made in respect of pre-sentence detention.
A Postscript; Legislative Change
We add that in R v McLeod the Court (Maxwell P, Redlich JA and Habersberger AJA) expressed the view that legislative change was required to address the very circumstance that has arisen in this case. Their Honours said:
Subsequent forfeiture is not a true appeal ground, precisely because the sentencing judge could not have known what the appeal court subsequently learns about the forfeiture. The need to take account of the new information about forfeiture means that in every such case this court is required to act effectively as the primary sentencing court, which is not appropriate. [11]
[11](2007) 16 VR 682, 691.
The Court went on to recommend that, in order to avoid this relatively frequent occurrence, where a forfeiture occurs after sentencing and has not been able to be adequately taken into account, as in this case, the sentenced person be able to apply to the sentencing judge or another judge of the court for a review of the sentence in
'the light of the subsequent forfeiture'.[12] This could only be done by enacting appropriate legislation. These views have been subsequently endorsed and re-stated by this Court in R v Cochrane, where Maxwell P (with whom Buchanan and Vincent JJA in separate reasons agreed) said:
Finally, I wish to say something about the procedure in cases such as this. In McLeod, a bench of this Court of which I was a member expressed the view that, where new evidence emerges after sentence about a matter relevant to sentence – in that case, a confiscation issue – it would be preferable for the sentencing court itself to have the opportunity to deal with that further development and to review the sentence passed in the light of the new information. As things stand, these post-sentence developments have to be dealt with, if at all, by this Court as new evidence. The result is that this Court becomes a sentencing court of first instance because the discretion is, in the relevant sense, re-opened on every such occasion.
The reasoning in McLeod in the confiscation setting applies equally to breach of parole. The amendments suggested by the Court in that case should encompass both. That will ensure that post-sentence developments are dealt with efficiently by the court which has already exercised the sentencing discretion. That, it seems to me, is the appropriate place for the review to take place, rather than in this Court.[13]
[12]Ibid.
[13][2008] VSCA 60, [14]-[15] (citations omitted).
We endorse those remarks.
ASHLEY JA:
The orders that the Court will make are these:
1. The appeal is allowed.
2.The sentence passed on 11 October 2007 is set aside.
3.In lieu thereof the appellant is sentenced as follows:
on count 1: 15 months' imprisonment
on count 2: two years and nine months' imprisonment;
on count 3: three months' imprisonment.
We direct that seven months of the sentence on count 1 and one month of the sentence on count 3 be cumulated on each other and on the sentence on count 2. The total effective sentence is three years and five months' imprisonment. We fix a non-parole period of 21 months.4.The other orders made below are confirmed.
It is declared that the period of 682 days, including this day, be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.
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