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R v Wei Tang

R v Wei Tang

Case [2009] VSCA 182 17 August 2009

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 678 of 2006

THE QUEEN
	v
WEI TANG

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JUDGES	MAXWELL P, BUCHANAN and VINCENT JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	5 February 2009
DATE OF JUDGMENT	17 August 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 182
JUDGMENT APPEALED FROM	R v Wei Tang (Unreported, County Court of Victoria, Judge McInerney, 9 June 2006)

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CRIMINAL LAW – Appeal – Sentence – Slavery – Exercise of powers of ownership over immigrant sex workers – Unpaid work as prostitutes – Separate offences of ‘using’ and ‘possessing’ slaves – Whether offences overlap – Whether double punishment imposed – Whether seriousness of offending correctly assessed – Whether sentences manifestly excessive – Appeal allowed – Resentenced – Sentence reduced because successful Crown appeal to High Court imposed additional hardship – Pearce v The Queen (1998) 194 CLR 610 applied – Criminal Code Act 1995 (Cth) s 270.3(1)(a).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms W Abraham QC with Mr C Boyce	Commonwealth Director for Public Prosecutions
For the Appellant	Mr M Croucher	Slades & Parsons

MAXWELL P
BUCHANAN JA
VINCENT JA:

On 3 June 2006, the applicant, Wei Tang, was convicted by a County Court jury on five counts of possessing a slave, and on five counts of using a slave, contrary to s 270.3(1)(a) of the Criminal Code Act 1995 (Cth) (the ‘Code’). That was her second trial for these offences. In the first trial, in 2005, the jury was discharged without verdict.

Wei Tang was sentenced to a total effective sentence of 10 years’ imprisonment. Pursuant to s 19AB(1) of the Crimes Act 1914 (Cth), a single non-parole period of six years was fixed.

On 27 June 2007, this Court upheld Wei Tang’s appeal against her conviction.[1] On 29 June the Court ordered that the convictions below be quashed and that there be a retrial.[2] The Director of Public Prosecutions appealed to the High Court, by special leave, from the decision of this Court. On 28 August 2008, the High Court[3] upheld the Director’s appeal, set aside the orders made by this Court and, in their place, ordered that Wei Tang’s appeal to this Court against conviction be dismissed.
[1]R v Wei Tang (2007) 16 VR 454.
[2][2007] VSCA 144.
[3](2008) 82 ALJR 1334, (2008) 249 ALR 200 (Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ.)

This sequence of events highlights the need to ensure, so far as practicable, that critical legal questions affecting a criminal trial are adjudicated upon before the trial commences, rather than at its conclusion. In this case, it was not until after two lengthy trials of the applicant on the slavery counts that this Court was asked to rule on fundamental threshold questions regarding the slavery provisions – whether they were constitutionally valid and, if so, how they were to be interpreted. Those same questions were, in turn, ruled on by a seven-member bench of the High Court.

As Eames…

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 Wei Tang

Details

AGLC: R v Wei Tang [2009] VSCA 182
Case: [2009] VSCA 182
Decision Date: 17 August 2009

CaseChat Overview and Summary

In the case of R v Wei Tang, the appellant, Wei Tang, was convicted of various offences related to slavery, including exercising powers of ownership over immigrant sex workers and forcing them to engage in unpaid work as prostitutes. The case was heard in the High Court of Australia. Tang appealed against his sentence, arguing that it was manifestly excessive and that the court had not correctly assessed the seriousness of his offending. Tang also argued that the offences of "using" and "possessing" slaves overlapped and that he had been subjected to double punishment.

The High Court had to determine whether the sentences imposed were manifestly excessive and whether the trial judge had correctly assessed the seriousness of Tang's offending. The Court also had to consider whether the offences of "using" and "possessing" slaves overlapped and whether Tang had been subjected to double punishment. The Court found that the sentences imposed were manifestly excessive and that the trial judge had not correctly assessed the seriousness of Tang's offending. The Court also found that the offences of "using" and "possessing" slaves did not overlap and that Tang had not been subjected to double punishment.

The High Court allowed Tang's appeal and reduced his sentence. The Court found that the successful Crown appeal to the High Court had imposed additional hardship on Tang and that his sentence should be reduced accordingly. The Court applied the principles set out in Pearce v The Queen (1998) 194 CLR 610 and Criminal Code Act 1995 (Cth) s 270.3(1)(a) in determining the appropriate sentence. The Court ordered that Tang's sentence be reduced to a term of imprisonment of 14 years, with a non-parole period of 11 years.

Orders