R v Duong - [2004] QCA 164

SUPREME COURT OF QUEENSLAND

CITATION:

R v Duong [2004] QCA 164

PARTIES:

R
v
DUONG, Danh Quang

(applicant)

FILE NO/S:

CA No 36 of 2004

DC No 1258 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application - Criminal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

17 May 2004

DELIVERED AT:

Brisbane

HEARING DATE:

17 May 2004

JUDGES:

McMurdo P and Chesterman and Atkinson JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – where the applicant was sentenced to six years’ imprisonment with a recommendation for parole after serving two years – where an application was made to re-open sentence on the grounds that the learned sentencing judge made an error of fact in assuming that the parole recommendation made could ever be realised – where application dismissed

Penalties and Sentences Act 1992 (Qld), s 188(1), s 157(2)
Corrective Services Act 2000 (Qld), s 135

R v Cassar; ex parte Attorney-General [2001] QCA 300; [2002] 1 Qd R 386, followed
R v MacKenzie [2000] QCA 324; CA No 353 of 1999, 20 October 2000, considered

COUNSEL:

B P Marais for the applicant
M J Copley for the respondent

SOLICITORS:

Applicant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: Mr Justice Chesterman will deliver his reasons first.

CHESTERMAN J: On 8 August 2001, the applicant was sentenced in the District Court for a number of offences for which he had pleaded guilty. Most relevantly, and most seriously, was an offence of robbery.

Describing the circumstances Judge Noud said:

"In fact it is one of the most serious offences that come before this Court and I regret to say that it is a very bad instance of it, the one that you took part in and you were a significant player in the commission of these crimes...
There was a large amount of money involved and the violence, in my opinion, was very serious indeed. Even the circumstances surrounding the commission of the offence...indicated a deliberateness on your part and a preparedness to take part in violence... The Court must take a stand in relation to that and pass a sentence which will have an effect, not only upon you, but also to deter others."

His Honour indicated expressly that he was not prepared to suspend or partly suspend the sentence because he thought that the applicant should be subject to the supervision of parole after his release from prison.

Taking into account circumstances personal to the applicant, in particular his youth, the learned judge recommended "that you be released on parole after you have served two years' imprisonment." It should be pointed out that the applicant had spent almost a year in gaol prior to being sentenced for those offences.

The applicant…

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 Duong

Details

AGLC: R v Duong [2004] QCA 164
Case: [2004] QCA 164
Decision Date: 17 May 2004

CaseChat Overview and Summary

The case of R v Duong involved an appeal against the applicant's sentence, where the applicant was sentenced to six years' imprisonment with a recommendation for parole after serving two years. The applicant sought to reopen the sentence, arguing that the sentencing judge made an error of fact in assuming that the parole recommendation could ever be realised. The application for leave to appeal was subsequently dismissed by the court.

The primary legal issue before the court was whether the applicant's sentence could be reopened on the basis that the sentencing judge erred in fact by assuming the possibility of parole. The court was required to consider whether the grounds provided for reopening the sentence were sufficient, and whether there was an error of fact that warranted reopening the sentence.

The court held that the grounds for reopening the sentence were insufficient. The court found that there was no error of fact made by the sentencing judge, and that the possibility of parole was a matter that the parole board would determine in the future. The court noted that the applicant's sentence was within the appropriate range, and that the sentencing judge had considered all relevant factors in determining the sentence. The court concluded that there was no basis for reopening the sentence, and dismissed the application for leave to appeal.

The court's decision was based on the finding that there was no error of fact made by the sentencing judge, and that the possibility of parole was a matter that the parole board would determine in the future. The court held that the applicant's sentence was within the appropriate range, and that the sentencing judge had considered all relevant factors in determining the sentence. The court's decision was final, and no further appeal was permitted. The application for leave to appeal was dismissed.

Orders

Orders of the court

Application for leave to appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Duong [2004] QCA 164
PARTIES:	R v DUONG, Danh Quang (applicant)
FILE NO/S:	CA No 36 of 2004 DC No 1258 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application - Criminal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	17 May 2004
DELIVERED AT:	Brisbane
HEARING DATE:	17 May 2004
JUDGES:	McMurdo P and Chesterman and Atkinson JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – where the applicant was sentenced to six years’ imprisonment with a recommendation for parole after serving two years – where an application was made to re-open sentence on the grounds that the learned sentencing judge made an error of fact in assuming that the parole recommendation made could ever be realised – where application dismissed Penalties and Sentences Act 1992 (Qld), s 188(1), s 157(2) Corrective Services Act 2000 (Qld), s 135 R v Cassar; ex parte Attorney-General [2001] QCA 300; [2002] 1 Qd R 386, followed R v MacKenzie [2000] QCA 324; CA No 353 of 1999, 20 October 2000, considered
COUNSEL:	B P Marais for the applicant M J Copley for the respondent
SOLICITORS:	Applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent