R v Dang - [2004] NSWCCA 265

CITATION: R v Quoc Phong Dang [2004] NSWCCA 265

HEARING DATE(S): 28/07/04

JUDGMENT DATE:
28 July 2004

JUDGMENT OF: Spigelman CJ at 18; Hidden J at 1; Buddin J at 19

DECISION: Leave to appeal granted; appeal dismissed.

CATCHWORDS: CRIMINAL LAW: Application for leave to appeal against sentence - attempting to possess prohibited imports - trafficable quantity of heroin - whether head sentence and non-parole period manifestly excessive.

LEGISLATION CITED: Crimes Act 1914 (Cth)
Customs Act 1901 (Cth)
Financial Transaction Reports Act 1988 (Cth)

CASES CITED: Bugmy v The Queen (1990) 169 CLR 505
R v Kevenaar & Ors [2004] NSWCCA 210
R v Studenikin [2004] NSWCCA 164
R v Wong and Leung (1999) 48 NSWLR 340

PARTIES :
Quoc Phong Dang - App
Commonwealth Crown - Resp

FILE NUMBER(S): CCA 60130/04

COUNSEL: DC Andersen QC - App
MM Cinque - Resp

SOLICITORS: Randle Lawyers - App
Commonwealth Director of Public Prosecutions - Resp

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0489

LOWER COURT
JUDICIAL OFFICER : Dodd DCJ

60130/04

SPIGELMAN CJ
HIDDEN J
BUDDIN J
Wednesday, 28 July, 2004

REGINA v Quoc Phong DANG

Judgment

1 HIDDEN J: The applicant, Quoc Phong Dang, was committed for sentence in the District Court on a charge of attempting to possess prohibited imports, being a trafficable quantity of heroin, an offence under s 233B(1)(c) of the Customs Act, carrying a maximum sentence of imprisonment of twenty-five years. He was sentenced to imprisonment for seven and a half years with a non-parole period of five years. He seeks leave to appeal against that sentence.

2 On 9 September 2001 Customs officers intercepted a package forwarded to the applicant from Vietnam. It was found to contain two hardcover books in which were concealed four packages of heroin. The gross weight of the heroin was a little over 125 grams, with a pure weight of 92 grams. The potential street value of the drug was estimated by Australian Federal Police to be somewhere between $176,400 and $223,440.

3 The package was reconstructed, with the heroin being replaced by an inert substance in four plastic bags. It was delivered to the applicant at his home unit on 16 September 2002. Upon entering the unit a little later, police found that the package had been opened and the plastic bags had been removed. There were a number of small freezer bags next to the package. They also found $10,500 in cash in a wardrobe in the main bedroom of the unit. In a garden bed adjacent to the balcony of the unit there was found a set of electronic scales which, apparently, had been thrown from the balcony. The applicant was arrested but, on legal advice, he declined to be interviewed about the matter.

4 The applicant was twenty-five years old at the time of the offence and is now twenty-seven. He came to Australia from Vietnam in December 1996 on a student visa. That visa expired in March 2003 and it is anticipated that 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 265
Case: [2004] NSWCCA 265
Decision Date: 28 July 2004

CaseChat Overview and Summary

In the matter of the criminal proceedings against Dang, the applicant sought leave to appeal against the sentence imposed following a conviction for attempting to possess a trafficable quantity of heroin. The case was heard in the High Court of Australia. The central issue before the court was whether the sentence, including the head sentence and the non-parole period, was manifestly excessive given the circumstances of the case.

The court considered whether the sentence imposed on Dang was manifestly excessive, taking into account the gravity of the offence, the quantity of heroin involved, and the principles of proportionality and deterrence in sentencing. The court examined the sentencing judge's approach and the specific factors that led to the imposition of the sentence. It was crucial for the court to assess whether the sentence could be considered manifestly excessive, which would warrant interference by the appellate court.

After thorough deliberation, the court concluded that the sentence was not manifestly excessive. The reasoning was based on the comprehensive assessment of the sentencing judge's considerations, including the nature and circumstances of the offence, the need for general and specific deterrence, and the overall proportionality of the sentence. The court found that the sentence was within the range of acceptable punishments for such a serious offence and did not constitute a manifest excess. Consequently, the application for leave to appeal against the sentence was dismissed.

Orders