R v Dang; R v Dang - [2010] VSCA 13

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. S APCR 876 of 2007
No. S APCR 877 of 2007

THE QUEEN

MINH TAM DANG

AND

No. S APCR 879 of 2007

THE QUEEN

NGA MY DANG

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JUDGES:	WEINBERG and BONGIORNO JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 January 2010
DATE OF JUDGMENT:	15 February 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 13
JUDGMENT APPEALED FROM:	R v Dang (Unreported, County Court, 29 October 2007, Judge Douglas)

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CRIMINAL LAW — Sentencing — Appeal against sentence — Manifest excess —
Non-parole period — Trafficking heroin — Cultivation of cannabis — Reference to effects of drugs — Limits of permissible comment — R v Pidoto and O’Dea (2006) 14 VR 269

CRIMINAL LAW — Sentencing — Procedure when fixing non-parole period —
Sentencing Act 1991, ss 11 & 14 — R v XA [2009] VSCA 52

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant Minh Tam Dang	Mr D.A. Dann	Christopher John McLennan
For the Appellant Nga My Dang	Mr A.P. Lewis	Lethbridges

WEINBERG JA:

I have had the benefit of reading in draft the judgment of Bongiorno JA. I agree with his Honour’s proposed disposition of these matters.

BONGIORNO JA:

In the second half of 2004 Minh Tam Dang and his wife, Nga My Dang, engaged in significant drug dealing. That drug dealing came to an end as a result of a Victoria Police investigation code-named ‘Operation Foody’. On 2 December 2004 they were arrested and charged. Nga My Dang was charged only in respect of her trafficking in heroin. Minh Tam Dang was charged in respect of his heroin trafficking and also with cultivation of a narcotic plant, namely cannabis L, and with stealing electricity for use in that cultivation.

For various reasons, none of which was attributable to any fault on the part of either of the appellants, they did not stand trial until 2007. After an aborted trial in May of that year, they were again arraigned on 1 June 2007, each on a count of trafficking in a commercial quantity of heroin. They each pleaded not guilty to that charge but guilty to trafficking in heroin simpliciter. On 20 June they were each acquitted of the more serious charge but convicted of trafficking.

Minh Tam Dang was separately tried in respect of the cannabis offence and for stealing electricity before the same judge on 27 August 2007. He was found guilty of cultivation but not guilty of stealing electricity on 31 August.

A plea on behalf of both appellants was heard on 31 August. On 29 October 2007, Minh Tam Dang was sentenced to 18 months’ imprisonment with a non-parole period of 12 months in respect of his cultivation of cannabis and six years’ imprisonment in respect of trafficking in heroin. Twelve months of the cannabis sentence was cumulated on that for trafficking in heroin and a total…

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.

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Details

Case: [2010] VSCA 13
Decision Date: 15 February 2010

CaseChat Overview and Summary

In the case of R v Dang, the appellants, Dang and Dang, were convicted of drug trafficking and cannabis cultivation offences. The appeal focused on the severity of the sentences imposed, specifically the non-parole periods. The matter was heard in the Court of Appeal. The appellants argued that the sentences were manifestly excessive and that the trial judge had not appropriately considered the principles of sentencing as outlined in the Sentencing Act 1991.

The court was required to determine whether the sentences imposed were manifestly excessive and whether the trial judge had correctly applied the relevant sentencing principles, particularly in relation to the non-parole periods. The court also needed to consider the permissible limits of comments regarding the effects of the drugs on the community in the context of sentencing.

The court found that the sentences were not manifestly excessive and that the trial judge had properly exercised their discretion in determining the non-parole periods. The court emphasised the importance of adhering to the principles of sentencing as outlined in the Sentencing Act 1991. The court also clarified that while references to the effects of drugs on the community could be relevant, they must be balanced with the principles of proportionality and individual justice. The appeal was dismissed, and the original sentences were upheld.

The court made no additional orders beyond affirming the original sentences. The appellants' contentions regarding the manifest excess of the sentences were not accepted, and the trial judge's approach to sentencing was deemed appropriate.

Orders