R v Liang - [2009] VSCA 18

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 840 of 2007

THE QUEEN
	v
XIN LIANG

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JUDGES:	NEAVE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 February 2009
DATE OF JUDGMENT:	16 February 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 18

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CRIMINAL LAW – Appeal – Sentence – Appellant pleaded guilty to one count of trafficking in a marketable quantity of a controlled drug – During sentencing remarks, sentencing judge incorrectly characterised role of appellant in trafficking enterprise – Error corrected – Whether error was material – Whether sentence manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A Cassidy	Commonwealth Director of Public Prosecutions
For the Appellant	Mr L C Carter	Robert Stary & Associates

NEAVE JA
WEINBERG JA:

The appellant, Xin Liang, pleaded guilty in the County Court to one count of trafficking in a marketable quantity of a controlled drug (cocaine).[1] The maximum sentence for this offence is 25 years' imprisonment.[2] After hearing a plea in mitigation, the learned sentencing judge sentenced the appellant to a term of imprisonment of two years and six months, and ordered that following a period of 16 months he be released on a recognisance in the sum of $500 to be of good behaviour for 14 months. The appellant now appeals against that sentence.
[1]Criminal Code Act 1995 (Cth) s 302.3(1)
[2]Ibid.

Circumstances of the offence and of the offender

The appellant and his co-offender, Donghai Hu, were identified as a result of an optical surveillance and telephone interception operation undertaken by the Australian Crime Commission.

The facts on which the Crown relied were as follows. In August 2006, the appellant and Mr Hu travelled separately to Hong Kong and China. While overseas, they met with each other and a man known as ‘Mr Ding’. Following their return to Melbourne, the appellant, Mr Hu and Mr Ding discussed purchasing cocaine and then re-selling it for a profit to be divided equally between them. Under the plan, Mr Hu and Mr Ding would liaise with narcotics suppliers, including a supplier known as ‘Bald Head’, to secure supply. It was intended that the appellant would liaise with prospective wholesale purchasers to secure the capital to buy the drug.

A quantity of cocaine was sourced from a supplier and it was arranged that the handover of the drugs would take place on 6 October 2006 at a car wash in Spencer Street, West Melbourne. Mr Hu received the cocaine as planned and took it to the appellant’s Southbank apartment, where the two men weighed and re-bagged it. They informed Mr Ding of the successful collection of the drug. The appellant retained a sample of the cocaine to provide to prospective customers, and Mr Hu took the balance of the drug to his home in Kensington.

In the following days, the appellant unsuccessfully attempted to find a buyer for the cocaine. On 12 October 2006, Mr Hu's house was searched and the cocaine was found. It weighed…

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 Liang

Details

AGLC: R v Liang [2009] VSCA 18
Case: [2009] VSCA 18
Decision Date: 16 February 2009

CaseChat Overview and Summary

The case of R v Liang involved the appellant who was convicted for trafficking in a marketable quantity of a controlled drug. The sentencing judge, in the course of delivering the sentencing remarks, made an error in characterising the appellant’s role within the trafficking enterprise. The appellant appealed the sentence on the grounds that the error made by the sentencing judge was material and that the sentence was manifestly excessive.

The primary legal issue before the court was whether the error in characterising the appellant's role in the trafficking enterprise was material, and if it had any bearing on the sentence. Additionally, the court had to determine if the sentence imposed was manifestly excessive. The appellant argued that the error led to an overestimation of the appellant's culpability, resulting in a harsher sentence than deserved. The prosecution contended that the error was not material and that the sentence was proportionate to the crime committed.

The court examined the sentencing remarks and the characterisation of the appellant's role in detail. It found that while the sentencing judge had made an error, it did not impact the overall assessment of the appellant's culpability or the sentence imposed. The court held that the error was not material as it did not influence the final sentencing outcome. Furthermore, the court found that the sentence was not manifestly excessive, taking into account the nature and circumstances of the offence, as well as the appellant's criminal history. Consequently, the appeal was dismissed, and the original sentence was upheld.

No further orders were made by the court. The appeal was dismissed, and the original sentence was confirmed.

Orders