R v Dang

Case [2004] NSWCCA 269 30 July 2004

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CITATION: Regina v Dang [2004] NSWCCA 269

HEARING DATE(S): 30/07/04

JUDGMENT DATE:
30 July 2004

JUDGMENT OF: Spigelman CJ at 1; Hidden J at 2; Buddin J at 17

DECISION: Leave to appeal granted, appeal dismissed.

CATCHWORDS: CRIMINAL LAW: Application for leave to appeal against sentence - importing trafficable quantity of heroin - repeal of s16G Crimes Act (Cth) - sentencing judge's approach to appropriate starting point - discount for plea of guilty, assistance to authorities - whether, in any event, sentence excessive.

LEGISLATION CITED: Crimes Act 1914 (C'th)
Criminal Appeal Act 1912 (NSW)
Customs Act 1901 (C'th)

CASES CITED: R v Bernier (1998) 102 ACrimR 44 at 49
R v Kevenaar & Ors [2004] NSWCCA 210
R v Studenikin [2004] NSWCCA 164
The Queen v El-Hani [2004] NSWCCA 162

PARTIES :
Van Ich Dang - Applicant
Crown - Respondent

FILE NUMBER(S): CCA 60137/04

COUNSEL: A Francis - Applicant
MM Cinque - Respondent

SOLICITORS: S O'Connor, Legal Aid Commission - Applicant
Commonwealth Director of Public Prosecutions - Respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/1255

LOWER COURT
JUDICIAL OFFICER : Bell DCJ

60137/04

SPIGELMAN CJ
HIDDEN J
BUDDIN J
Friday, 30 July, 2004

REGINA v Van Ich DANG

Judgment

1 SPIGELMAN CJ: I will ask Justice Hidden to deliver the first judgment.

2 HIDDEN J: The applicant, Van Ich Dang, pleaded guilty in the District Court to a change of importing a trafficable quantity of heroin, an offence under s 233B(1)(b) of the Customs Act, carrying a maximum sentence of twenty five years imprisonment. He was sentenced to imprisonment for six and a half years, to commence on the date of his arrest, 8 November 2002, with a non-parole period of four years and four months. He seeks leave to appeal against that sentence.

3 The applicant was born in Vietnam but migrated to this country in 1981. On 8 November 2002 he returned to Sydney after a trip to Vietnam, carrying a quantity of heroin concealed in his shoes. The gross weight of the powder found was just under 400 grams, with a pure heroin content ranging from about forty five percent to seventy percent. The net weight of pure heroin was 218.6 grams. Estimates of its street value varied between $97,000 and about $780,000.

4 The applicant told police that he had been engaged by some people in Vietnam, who were unknown to him, to bring the drug to Australia. He was to have received $5,000. He later told a probation officer and a psychologist, both of whom provided reports, that he committed the offence to raise money for the medical treatment of his nephew in Vietnam, who was seriously ill and who had died by the time of sentence proceedings. Not without some misgivings, the sentencing judge accepted this explanation. His Honour was satisfied that, in any event, his role was that of a courier.

5 The applicant was forty years old at the time of the offence and is now forty one. He…

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 [2004] NSWCCA 269
Case: [2004] NSWCCA 269
Decision Date: 30 July 2004

CaseChat Overview and Summary

In the case of R v Dang, the respondent was convicted for importing a trafficable quantity of heroin into Australia. The court was asked to consider the respondent's application for leave to appeal against the sentence imposed. The case involved the application of sentencing principles in the context of drug importation offences and the impact of legislative changes on the sentencing process. The court had to determine whether the sentence imposed was appropriate, taking into account the factors relevant to the offence and the respondent's conduct.

The primary legal issue before the court was whether the sentence imposed by the sentencing judge was excessive, particularly in light of the respondent's plea of guilty and the assistance provided to the authorities. The court also had to consider the impact of the repeal of section 16G of the Crimes Act (Cth) on the appropriate starting point for sentencing in cases of drug importation. The court needed to examine whether the sentencing judge had correctly applied the relevant principles and factors in determining the appropriate sentence.

In considering the application, the court examined the sentencing judge's approach to determining the appropriate starting point for sentencing, the discount for the respondent's plea of guilty and assistance to authorities, and whether the sentence was excessive in the circumstances. The court concluded that the sentencing judge had correctly applied the relevant principles and that the sentence imposed was not excessive. The court found that the sentencing judge had appropriately considered all relevant factors and that the sentence reflected the gravity of the offence and the respondent's conduct.

The court dismissed the application for leave to appeal against the sentence. The respondent's application for special leave to appeal to the High Court was also dismissed. The court confirmed the sentence imposed by the sentencing judge and found that it was appropriate in all the circumstances.

Orders