R v Vang - [2015] QSC 44

SUPREME COURT OF QUEENSLAND

CITATION:

R v Vang [2015] QSC 44

PARTIES:

R

(applicant)

v
VANG, Phengh

(respondent)

FILE NO/S:

Indictment No 54 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application to reopen sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 February 2015

DELIVERED AT:

Brisbane

HEARING DATE:

25 February 2015

JUDGE:

Dalton J

ORDER:

Application dismissed.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – INTERPRETATION OF SENTENCING PROVISIONS – SENTENCING PROCEDURE – FACTUAL BASIS FOR SENTENCE – where the respondent was sentenced for trafficking in a dangerous drug – where the applicant submits that section 5(2) of the Drugs Misuse Act should have applied – where the indictment states the trafficking occurred ‘between the 12^th day of August 2013 and the 5^th day of September 2013’ - whether s5(2) of the Drugs Misuse Act applied

R v Ianculescu [1999] QCA 439
R v Suleman [2015] QSC 5

Drugs Misuse Act 1986 (Qld) s 5(1), s 5(2), s 145

COUNSEL:

M Aylward for the applicant

C W Heaton QC for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the applicant

Mulcahy Ryan Lawyers for the respondent

HER HONOUR: This is a reopening of a sentence because, in the closing moments of the sentence hearing when I was beginning to deal with the issue of whether a serious drug certificate ought to be issued, after I had pronounced the sentences on the offences, the Prosecutor realised that there was an argument that section 5(2) of the Drugs Misuse Act applied to this offending and that, therefore, there was a mandatory term of imprisonment which the defendant had to serve on the trafficking offence.

That having been raised, I adjourned the matter, saying that if I had neglected to have regard to section 5(2), and I ought to have, then I had imposed a sentence not in accordance with law and the sentence should be reopened and that the parties should relist it, so the matter was then relisted before me on 5 February this year so that the point as to the application of section 5(2) could be ventilated. After hearing some argument on that matter, it seemed convenient to adjourn the matter again, because the facts of the matter raise a fairly acute point of statutory interpretation. The matter having been adjourned on 5 February, it’s come back before me today so that it could be fully argued, and I have the benefit of written outlines on behalf of both the Crown and the defence.

I am not convinced that I need to reopen the sentence imposed; in fact, my view is that section 5(2) of the Drugs Misuse Act does not apply to the offence of trafficking here. I’ll explain why. The starting point must be the definition of trafficking at section 5(1) of the Drugs Misuse Act:

A person who carries on the business of unlawfully trafficking in a dangerous drug is guilty of a crime.

While we get used to calling the offence trafficking in…

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 Vang

Details

AGLC: R v Vang [2015] QSC 44
Case: [2015] QSC 44
Decision Date: 25 February 2015

CaseChat Overview and Summary

The respondent was convicted of trafficking in a dangerous drug and was sentenced by the Supreme Court of Victoria. The applicant, seeking to appeal the sentence, contended that section 5(2) of the Drugs Misuse Act should have been applied, which imposes a mandatory minimum sentence for trafficking in a dangerous drug. The applicant argued that the specific date range for the offence, as stated in the indictment, should have triggered the application of section 5(2). The Supreme Court was required to determine whether the indictment's date range aligned with the statutory requirements for section 5(2) to apply.

The court considered the statutory language of section 5(2) and the specific date range given in the indictment. It examined whether the date range provided in the indictment fell within the period that would trigger the mandatory minimum sentence under section 5(2). The court concluded that the date range given in the indictment did not meet the criteria stipulated in the statute, and therefore, section 5(2) did not apply. The court further found that there was no factual basis provided in the indictment that would have warranted the application of section 5(2).

The applicant's argument was rejected by the court as the indictment did not provide sufficient detail to trigger the mandatory minimum sentence under section 5(2). The Supreme Court dismissed the application, upholding the original sentence. The court maintained that the sentencing procedure was correctly followed and that the statutory interpretation did not support the application of section 5(2) in this instance.

Orders

Orders of the court

Application 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 Vang [2015] QSC 44
PARTIES:	R (applicant) v VANG, Phengh (respondent)
FILE NO/S:	Indictment No 54 of 2015
DIVISION:	Trial Division
PROCEEDING:	Application to reopen sentence
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	25 February 2015
DELIVERED AT:	Brisbane
HEARING DATE:	25 February 2015
JUDGE:	Dalton J
ORDER:	Application dismissed.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – INTERPRETATION OF SENTENCING PROVISIONS – SENTENCING PROCEDURE – FACTUAL BASIS FOR SENTENCE – where the respondent was sentenced for trafficking in a dangerous drug – where the applicant submits that section 5(2) of the Drugs Misuse Act should have applied – where the indictment states the trafficking occurred ‘between the 12^th day of August 2013 and the 5^th day of September 2013’ - whether s5(2) of the Drugs Misuse Act applied R v Ianculescu [1999] QCA 439 R v Suleman [2015] QSC 5 Drugs Misuse Act 1986 (Qld) s 5(1), s 5(2), s 145
COUNSEL:	M Aylward for the applicant C W Heaton QC for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the applicant Mulcahy Ryan Lawyers for the respondent