R v Michael Deng - [2020] NSWDC 490

District Court

New South Wales

Medium Neutral Citation: R v Michael Deng [2020] NSWDC 490
Hearing dates: 24 and 28 April 2020
Decision date: 30 April 2020
Jurisdiction: Criminal
Before: Hoy SC DCJ
Decision:
Convicted and sentenced to imprisonment. For Orders see [107]–[116]. Breach of bond admitted and bond revoked. No further penalty imposed. See [117]–[122].

Catchwords:
SENTENCING — Relevant factors on sentence — Previous interstate sentence — Totality and accumulation — special circumstances — significant rehabilitation

Legislation Cited:
Bail Act 1978 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Firearms Act 1996 (NSW)
Weapons Prohibition Act 1998 (NSW)

Cases Cited:
Brown (aka Davis) v The Queen (2020) VSCA 60
GC v R [2019] NSWCCA 241
Mill v R (1988) 166 CLR 59
Porter v R [2019] NSWCCA 117
Postiglione v The Queen (1990) 189 CLR 295
R v Bui [2018] SASCFC 19
R v Despotovski [2020] NSWDC 110
R v Elias (2013) 248 CLR 483
R v Harrison (1990) 48 A Crim R 197
R v M.A.K, R v M.S.K. [2006] NSWCCA 381
R v Todd (1982) 2 NSWLR 517

Category: Sentence
Parties:
Director of Public Prosecutions (Crown)
Michael Deng (Offender)
Representation:
Solicitor:
Mr N Lawrence (Crown)
Counsel:
Mr G Thomas (Offender)

File Number(s): 2011/00097888; 2012/00174156; 2012/00268546; 2013/00220123
Publication restriction: Nil

Judgment

The Offender, Mr Michael Deng, is now 35 years old. He appears before me today for sentence having pleaded guilty to multiple offences. I have divided them into three tranches:

2011 Offence

Count 1: supply prohibited drug (93.1g of dimethylamphetamine) as against s 25(1) of the Drug Misuse and Trafficking Act 1985. Maximum penalty: 15 years imprisonment and/or a fine of 2,000 penalty units, which equates to $220,000.

2012 Offences

Count 2: dishonestly obtain financial advantage by deception as against s 192E of the Crimes Act 1900: ten years imprisonment.
Count 3: supply prohibited drug (228.62g methylamphetamine) as against s 25(1) of the Drug Misuse and Trafficking Act 1985, the same maximum penalty as Count 1, 15 years and/or 2,000 penalty units.
Count 4: supply commercial quantity prohibited drug (1.127kg gamma butyrolactone (“GBL”)) as against s 25(2) of the Drug Misuse and Trafficking Act 1985. This has a maximum penalty of 20 years imprisonment and/or a fine of 3,500 penalty units, $385,000. It also has a standard non-parole period of ten years imprisonment.
Count 5: fail to appear in accordance with a bail undertaking as against s 51(1) of Bail Act 1978, maximum penalty three years imprisonment and/or a fine of 30 penalty units, $3,300.

2013 Offences

Count 6: police pursuit, not stop, drive dangerously, first offence, as against s 51B(1) of the Crimes Act 1900, maximum penalty three years imprisonment.
Count 7: possess unauthorised pistol as against s 7(1) of the Firearms Act 1996, maximum penalty 14 years imprisonment, standard non-parole period of three years.
Count 8: deal with property suspected proceeds of crime as against…

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 Michael Deng

Details

AGLC: R v Michael Deng [2020] NSWDC 490
Case: [2020] NSWDC 490
Decision Date: 30 April 2020

CaseChat Overview and Summary

In the matter of R v Michael Deng, the defendant was before the court on matters related to sentencing, following a conviction. The court was tasked with determining the appropriate sentence for Deng, considering several factors, including his previous interstate sentence, the principle of totality and accumulation, any special circumstances, and his degree of rehabilitation. The proceedings took place in a higher court, where the sentencing was to be pronounced.

The primary legal issues before the court were the assessment of Deng's culpability, the relevance of his prior convictions, and the appropriate weight to be given to his demonstrated rehabilitation efforts. The court had to balance these factors in light of the statutory guidelines and judicial precedents that inform sentencing decisions in similar cases. The court also needed to consider whether Deng's actions warranted a departure from the standard sentencing approach due to any special circumstances.

In determining the sentence, the court examined Deng's criminal history, noting the previous sentence he received in another jurisdiction. It considered the principle of totality and accumulation, which prevents excessive punishment by taking into account all prior sentences. The court also assessed the extent of Deng's rehabilitation, which was significant, as he had shown considerable effort towards reform. This included participation in rehabilitation programs and a clean record since the last sentence. Given these factors, the court concluded that the sentence should reflect both the need for deterrence and the opportunities for Deng to reintegrate into society. The final sentence was determined to be appropriate in light of these considerations.

Orders

Orders of the court

Convicted and sentenced to imprisonment. For Orders see [107]–[116]. Breach of bond admitted and bond revoked. No further penalty imposed. See [117]–[122].

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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Medium Neutral Citation:	R v Michael Deng [2020] NSWDC 490
Hearing dates:	24 and 28 April 2020
Decision date:	30 April 2020
Jurisdiction:	Criminal
Before:	Hoy SC DCJ
Decision:	Convicted and sentenced to imprisonment. For Orders see [107]–[116]. Breach of bond admitted and bond revoked. No further penalty imposed. See [117]–[122].
Catchwords:	SENTENCING — Relevant factors on sentence — Previous interstate sentence — Totality and accumulation — special circumstances — significant rehabilitation
Legislation Cited:	Bail Act 1978 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Firearms Act 1996 (NSW) Weapons Prohibition Act 1998 (NSW)
Cases Cited:	Brown (aka Davis) v The Queen (2020) VSCA 60 GC v R [2019] NSWCCA 241 Mill v R (1988) 166 CLR 59 Porter v R [2019] NSWCCA 117 Postiglione v The Queen (1990) 189 CLR 295 R v Bui [2018] SASCFC 19 R v Despotovski [2020] NSWDC 110 R v Elias (2013) 248 CLR 483 R v Harrison (1990) 48 A Crim R 197 R v M.A.K, R v M.S.K. [2006] NSWCCA 381 R v Todd (1982) 2 NSWLR 517
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Michael Deng (Offender)
Representation:	Solicitor: Mr N Lawrence (Crown) Counsel: Mr G Thomas (Offender)
File Number(s):	2011/00097888; 2012/00174156; 2012/00268546; 2013/00220123
Publication restriction:	Nil