R v Wang

Case [2009] VSCA 67 19 March 2009

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 730 of 2007

THE QUEEN
	v
YI YI WANG

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JUDGES:	ASHLEY and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 March 2009
DATE OF JUDGMENT:	19 March 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 67

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CRIMINAL LAW – Sentence – Failure to fix new single non-parole period – Failure to fix base sentence before making orders for cumulation – Imposition of identical sentences to previous offending of different gravity – Sentencing discretion reopened – Whether pathological gambling addiction to be afforded any weight – Principle that Court will not increase sentence without allowing appellant to abandon – Appellant re-sentenced to give effect to Judge’s intention.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr D A Dann	Clarebrough Pica

ASHLEY JA:

Redlich JA will deliver the first judgment in this matter.

REDLICH JA:

The appellant, an addicted gambler, appeals against a sentence imposed in the County Court on 9 August 2007, following her plea of guilty to a presentment containing one rolled-up count of theft (count 1) and 20 counts of obtaining property by deception (counts 2 to 19, 22 and 23), which all involved the same deception, leave having been granted in August 2008.

It would be supererogation to recount the facts of each of the 21 offences committed by the appellant. In summary, count 1, the rolled-up count of theft, relates to $70,000 stolen by the appellant from a Chinese company. The appellant acted as an agent of that company, selling automotive machinery in an amount totalling $193,617.75 to a business in Queensland. $50,000 of that was paid to the factory in China and an amount of about $70,000 was used for business-related expenses in Australia. The balance was appropriated by the appellant.

In relation to the 20 counts of obtaining financial advantage by deception, the appellant acted as an agent to a Chinese company which wished to purchase a warehouse in Vermont for the sum of $400,000. Twenty separate payments totalling an amount of $391,981.68 were made to the appellant in the belief, induced by the appellant, that the warehouse had been purchased and that these were payments towards the purchase price. In fact the warehouse had not been purchased. The amounts were stolen by the appellant. It was accepted by the sentencing judge that the funds were dissipated in satisfaction of the appellant's 'extensive and long-term gambling addiction'.

The Court gave the appellant leave to add four new grounds of appeal, as the errors complained of in those new grounds had been raised on the leave application and constituted the primary reason for the granting of leave to appeal.

On each of the 21 counts, the appellant was sentenced to three years' imprisonment. On counts 1 to 7 inclusive, the sentencing judge ordered that the sentence on each individual count was to be served concurrently 'with each other' and cumulatively 'to all…

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 Wang

Details

AGLC: R v Wang [2009] VSCA 67
Case: [2009] VSCA 67
Decision Date: 19 March 2009

CaseChat Overview and Summary

In the matter of R v Wang, the appellant faced the court following a conviction for a series of offences. The primary dispute centred on the sentencing process and the appropriateness of the non-parole period imposed. The matter was heard in the higher court, which was tasked with reviewing the sentence imposed by the lower court.

The court was required to address several legal issues, including whether the failure to fix a new single non-parole period and the omission to fix a base sentence before making orders for cumulation warranted a reopening of the sentencing discretion. Additionally, the court had to consider whether the imposition of identical sentences for previous offences of varying gravity was appropriate, and whether the court should have afforded weight to the appellant’s pathological gambling addiction. The court also needed to determine if the principle that the court will not increase a sentence without allowing the appellant to abandon it applied in this instance.

The court found that the lower court had failed to adequately address the sentencing issues, leading to a reopening of the sentencing discretion. The court concluded that the principle allowing for an increased sentence without the opportunity for the appellant to abandon it did not apply. As a result, the appellant was re-sentenced to reflect the judge's intended approach, ensuring that the new sentence was both fair and appropriate. The court emphasised the importance of adhering to sentencing principles to avoid any potential miscarriage of justice.

The final orders of the court required the re-sentencing of the appellant to ensure that the sentence was reflective of the judge’s intended approach, taking into account all relevant factors, including the appellant’s pathological gambling addiction. The court also directed that future sentencing processes adhere to established legal principles to avoid similar issues in the future.

Orders