R v DANG

Case [2015] SASCFC 89

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v DANG

[2015] SASCFC 89

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Nicholson)

13 July 2015

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - TOTALITY - GENERAL PRINCIPLES

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CONCURRENT SENTENCES

Appeal against sentence - the appellant pleaded guilty to the offence of trafficking in a controlled drug.

A judge of the District Court imposed a sentence of four years imprisonment, reduced from six and a half years on account of the early plea. The sentence was ordered to be served partially concurrently with a term of imprisonment of three and a half years with a non-parole period of two years, for other drug offences, which the appellant was serving at the time she pleaded guilty to the subject offence. After allowing for six months concurrency, the appellant became subject, in effect, to a total head sentence of seven years imprisonment for all offences. The judge extended the non-parole period from two years to four years.

The grounds of appeal are that the head sentence and the non-parole period are manifestly excessive, that the judge failed to give adequate consideration to totality, and that the judge failed to give adequate consideration to concurrency.

Held per Nicholson J (Kourakis CJ and Sulan J agreeing):

1.  Appeal dismissed.

2.  Neither the head sentence nor the non-parole period was manifestly excessive.

3.  In the circumstances, the principle of totality has no application.

4.  The judge’s exercise of discretion with respect to concurrency had not miscarried.

Controlled Substances Act 1984 (SA) s32; Criminal Law (Sentencing) Act 1988 (SA) s10C, s31; Criminal Law Consolidation Act 1935 (SA) s353, referred to.
Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357; R v Mangelsdorf (1995) 66 SASR 60; The Attorney-General v Tichy (1982) 30 SASR 84, discussed.
R v Nemer [2003] SASC 375, (2003) 87 SASR 168; House v The King (1936) 55 CLR 499; R v Kong [2013] SASCFC 15; R v Place [2002] SASC 101, (2002) 81 SASR 395; R v Dorning (1981) 27 SASR 481; R v Copeland (No 2) [2010] SASC 61, (2010) 108 SASR 398; R v Bagnato [2011] SASCFC 161, (2011) 112 SASR 39, considered.

R v DANG
[2015] SASCFC 89

Court of Criminal Appeal:   Kourakis CJ, Sulan & Nicholson JJ

KOURAKIS CJ.

  1. I would dismiss the appeal for the reasons given by Nicholson J.

    SULAN J.

  2. I would dismiss the appeal.  I agree with the reasons of Nicholson J.

    NICHOLSON J.

    Introduction

  3. The appellant has appealed against a sentence imposed by a Judge of the District Court (“the Judge”) on 23 March 2015 for the offence…

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R v Dang [2015] SASCFC 89
Case
[2015] SASCFC 89
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CaseChat Overview and Summary

In R v Dang, the Full Court of the Supreme Court of South Australia considered an appeal against sentence. The appellant, Dang, challenged the severity of the sentence imposed by the trial judge, arguing that certain findings made by the judge were "uncharitable" and constituted errors of fact, which influenced the sentencing outcome.

The central legal issues before the Full Court were whether the sentencing judge had erred in making specific factual findings regarding the appellant's motivations for drug trafficking, her cooperation with police, and the consequences of her actions, and whether these alleged errors were material to the final sentence. The court was also required to determine if the overall sentence, including the head sentence and non-parole period, was manifestly excessive, and if the judge had properly exercised discretion regarding the principles of totality and concurrency.

The Full Court acknowledged that some of the findings made by the sentencing judge could be considered uncharitable and perhaps not entirely accurate. However, after reviewing the sentencing remarks as a whole, the court concluded that these findings did not have a significant influence on the ultimate sentencing outcome. Applying section 353(4) of the Criminal Law Consolidation Act 1935, the court found that it was not satisfied that a different sentence should have been passed. The court considered the seven-year head sentence with a four-year non-parole period to be moderate, given the nature and extent of the offending and the appellant's personal circumstances.

Consequently, the Full Court dismissed the appeal against sentence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KOURAKIS CJ (dissent) NICHOLSON J (dissent)
The final sentence arrived at, seven years with four years non-parole, albeit after allowing for the appellant’s entitlement to reductions for the pleas, is in my view a moderate sentence bearing in mind the nature and extent of the course of offending and the appellant’s personal circumstances. Conclusion The appellant also complained, during argument in support of the manifest excess ground but not by way of separate grounds of appeal, that a number of findings by the Judge were “uncharitable” as counsel described them and constituted errors of fact. These included his Honour’s finding that the appellant commenced drug trafficking in 2005 “for primarily financial reasons to make money following an unsuccessful restaurant venture”, his Honour’s characterisation of the reasons why the appellant confessed to the police that it was she and not her sister who was responsible for the April 2013 offending and his Honour’s assertion that apart from the appellant’s confession and attempt at exculpation of her sister, she was otherwise uncooperative with the police. Counsel also complained about the Judge’s observation that the appellant’s actions “resulted in two innocent people being charged with heroin trafficking and taken to trial”. In my view, each of these findings was, at the least, uncharitable and served to put a gloss on the behaviour of the appellant that was not entirely accurate. However, on my reading of the sentencing remarks as a whole I do not regard them as having any particular influence on the sentencing outcome. I am not satisfied that the Judge, in these respects, committed any error that was material to the outcome. In any event, section 353(4) of the Criminal Law Consolidation Act 1935 provides: Subject to subsection (5), on an appeal against sentence, the Full Court must – (a)if it thinks that a different sentence should have been passed – (i) quash the sentence passed at the trial and substitute such other sentence as the court thinks ought to have been passed (whether more or less severe); or(ii) quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or(b)in any other case – dismiss the appeal.Neither the final head sentence nor the final extended non-parole period is manifestly excessive nor has the Judge’s exercise of the discretion with respect to concurrency and totality miscarried. Whether or not the Judge misapprehended the facts in any of the ways complained of by the appellant, I am not satisfied that a different sentence should be imposed. As I have indicated, the ultimate outcome of seven years imprisonment with four years non-parole is to be seen as moderate. If I were to sentence the appellant, I would not arrive at either a lower head sentence or a lower non-parole period. Accordingly, and given that paragraph (a) of subsection 353(4) of the Criminal Law Consolidation Act is not satisfied, I would dismiss the appeal in accordance with paragraph (b).

Ratio Decidendi

Legal Principle Established

Established by:

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