R v Kan - [2009] QCA 160

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kan [2009] QCA 160

PARTIES:

R
v
KAN, Dan Vi
(applicant)

FILE NO/S:

CA No 351 of 2008
SC No 457 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 June 2009

DELIVERED AT:

Brisbane

HEARING DATE:

12 May 2009

JUDGES:

Keane and Holmes JJA and A Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted on pleas of guilty of one count of trafficking in heroin, cocaine and methylamphetamine, and one count of attempting to pervert the course of justice – where applicant sentenced to 11 years and six months imprisonment, with a serious violent offence declaration, for trafficking; and to two years imprisonment, to be served cumulatively, for attempting to pervert the course of justice – where applicant committed the offences while on bail and suspended sentences – where applicant’s supplier, Chen, sentenced to 14 years imprisonment for trafficking and a further two years imprisonment for attempting to pervert the course of justice, to be served cumulatively – where on appeal applicant challenged certain facts on which he was sentenced, which were not challenged at the sentence hearing – whether Court should accept applicant’s assertions – whether, having regard to the parity principle and comparable cases of trafficking, sentence manifestly excessive

R v Chen[2008] QCA 332, cited
R v Do[2000] QCA 135, cited
R v Hamlet[2002] QCA 71, distinguished
R v Le (2002) 127 A Crim R 573; [2002] QCA 17, cited
R v Matasaru[2000] QCA 246, cited
R v Nguyen[1999] QCA 258, cited

COUNSEL:

The applicant appeared on his own behalf
M B Lehane for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Qld) for the respondent

KEANE JA: I have read the reasons for judgment prepared by Holmes JA. I agree with her Honour’s reasons and with the order proposed by her Honour.

HOLMES JA: The applicant was convicted on pleas of guilty of one count of unlawfully trafficking in the dangerous drugs heroin, cocaine and methylamphetamine, between 12 December 2003 and 29 September 2004, and one count of attempting to pervert the course of justice. On the first of those counts, he was sentenced to imprisonment for 11 years and six months, with a serious violent offence declaration, while on the second he was sentenced to two years imprisonment, to be served cumulatively upon the first sentence. At the same time, he was dealt with for breaches of suspended sentences of, respectively, five months and nine months imprisonment imposed on 20 August 2004 in respect of one offence of possessing and one offence of supplying heroin. The…

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 Kan

Details

AGLC: R v Kan [2009] QCA 160
Case: [2009] QCA 160
Decision Date: 12 June 2009

CaseChat Overview and Summary

The appellant was convicted on pleas of guilty of trafficking in heroin, cocaine and methylamphetamine, as well as attempting to pervert the course of justice. The appellant was sentenced to eleven years and six months imprisonment, with a serious violent offence declaration, for the trafficking charge, and two years imprisonment, to be served cumulatively, for the attempt to pervert the course of justice. The appellant applied for leave to appeal against the sentence on the basis that it was manifestly excessive. The appellant argued that the sentence was excessive when compared to the sentence of the appellant's supplier, Chen, who was sentenced to fourteen years imprisonment for trafficking and a further two years imprisonment for attempting to pervert the course of justice, to be served cumulatively.

The court had to determine whether it was appropriate to accept certain facts that the appellant claimed were not established at the sentence hearing, and whether, having regard to the parity principle and comparable cases of trafficking, the sentence was manifestly excessive. The court noted that the appellant had not challenged the facts on which he was sentenced at the sentence hearing, and that there was no evidence to support the appellant's claims. The court also noted that the sentence was not manifestly excessive when compared to other cases of trafficking and the appellant's supplier's sentence. The court held that the appellant had not demonstrated that the sentence was manifestly excessive, and dismissed the application for leave to appeal against sentence.

The court's final orders were that the application for leave to appeal against sentence was dismissed. The appellant's convictions and sentences were upheld.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Kan [2009] QCA 160
PARTIES:	R v KAN, Dan Vi (applicant)
FILE NO/S:	CA No 351 of 2008 SC No 457 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	12 June 2009
DELIVERED AT:	Brisbane
HEARING DATE:	12 May 2009
JUDGES:	Keane and Holmes JJA and A Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted on pleas of guilty of one count of trafficking in heroin, cocaine and methylamphetamine, and one count of attempting to pervert the course of justice – where applicant sentenced to 11 years and six months imprisonment, with a serious violent offence declaration, for trafficking; and to two years imprisonment, to be served cumulatively, for attempting to pervert the course of justice – where applicant committed the offences while on bail and suspended sentences – where applicant’s supplier, Chen, sentenced to 14 years imprisonment for trafficking and a further two years imprisonment for attempting to pervert the course of justice, to be served cumulatively – where on appeal applicant challenged certain facts on which he was sentenced, which were not challenged at the sentence hearing – whether Court should accept applicant’s assertions – whether, having regard to the parity principle and comparable cases of trafficking, sentence manifestly excessive R v Chen[2008] QCA 332, cited R v Do[2000] QCA 135, cited R v Hamlet[2002] QCA 71, distinguished R v Le (2002) 127 A Crim R 573; [2002] QCA 17, cited R v Matasaru[2000] QCA 246, cited R v Nguyen[1999] QCA 258, cited
COUNSEL:	The applicant appeared on his own behalf M B Lehane for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Qld) for the respondent