R v Wong - [2007] VSCA 278

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 47 of 2007

THE QUEEN

WAI KEUONG WONG

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JUDGES:	BUCHANAN JA, COLDREY and CAVANOUGH AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 November 2007
DATE OF JUDGMENT:	22 November 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 278

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CRIMINAL LAW – Sentencing – Aggregate sentencing – Two convictions only - Cultivation of a drug of dependence and theft – Error to impose aggregate sentence – Whether appellant to be re-sentenced as a ‘serious offender’ – Sentencing discretion re-opened - Assistance to authorities – Parity – Appeal allowed – Appellant re-sentenced – Sentencing Act 1991, Part 2A, s 9.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C J Ryan SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr P F Tehan QC	Michael J Gleeson & Associates Pty

BUCHANAN JA:

I will ask Cavanough AJA to deliver the first judgment.

CAVANOUGH AJA:

This is an appeal against sentence.

The appellant pleaded guilty to, and was convicted in the County Court on, one count of cultivation of a commercial quantity of a narcotic plant (being cannabis) contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981, and one count of theft of property (being electricity) contrary to s 74 of the Crimes Act1958.

Sentence was imposed on 21 February 2007. The learned sentencing judge imposed an aggregate sentence for the offences of three-and-a-half years' imprisonment, with a non-parole period of two years. Forensic, disposal and two compensation orders were made.

A ground of appeal is that his Honour erred in imposing an aggregate sentence rather than individual sentences.

His Honour considered that he had power to impose an aggregate sentence by reason of the amendments to s 9 of the Sentencing Act1991 which were introduced as from 15 August 2006 by the Courts Legislation (Jurisdiction) Act2006. Those amendments, among other things, authorised courts to impose an aggregate sentence in relation to offences prosecuted by way of indictment. Previously there was no such power. Section 9 had applied only to summary matters. The provisions of s 9, as amended, and the history and nature of aggregate sentences were examined in detail by this Court in DPP v Felton[1]. That decision was handed down on 18 April 2007. Obviously the learned sentencing judge did not have the benefit of it when imposing sentence in the present matter.
[1][2007] VSCA 65.

In Felton, Kellam JA (with whom Buchanan and Eames JJA agreed) held, in

summary, that the 2006 amendments did not intend to substitute aggregate sentencing for the existing law and practice relating to the structure of multiple sentences in relation to indictable matters heard in the County Court and the Supreme Court, and, in particular, that it remained necessary for the sentencing judge to identify, in accordance with existing sentencing principles, ‘separate events giving rise to specific counts or groups of counts and to order appropriate accumulation…

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 Wong

Details

AGLC: R v Wong [2007] VSCA 278
Case: [2007] VSCA 278
Decision Date: 22 November 2007

CaseChat Overview and Summary

The appellant, Wong, was convicted of cultivating a drug of dependence and theft. Wong appealed against the aggregate sentence imposed by the lower court, arguing that it was erroneous to aggregate the two convictions. Wong contended that the lower court should have treated him as a 'serious offender' and re-opened its sentencing discretion. The appeal focused on whether the lower court had erred in imposing an aggregate sentence and whether Wong should be re-sentenced considering his assistance to the authorities and the principle of parity.

The court considered whether the lower court had erred in imposing an aggregate sentence by not treating Wong as a 'serious offender'. It examined the relevant provisions of the Sentencing Act 1991, particularly Part 2A, section 9, which outlines the criteria for determining whether a defendant should be considered a 'serious offender'. The court also reviewed the principle of parity, which requires that similar crimes be punished similarly, and assessed Wong's assistance to the authorities as a mitigating factor.

The court found that the lower court had indeed erred in imposing an aggregate sentence without considering Wong as a 'serious offender'. The court determined that Wong's assistance to the authorities and the principle of parity warranted re-opening the sentencing discretion. The appeal was allowed, and Wong was to be re-sentenced. The court emphasised the importance of considering all relevant factors, including the defendant's assistance to the authorities and the principle of parity, in determining an appropriate sentence.

The final orders of the court were that the appeal be allowed, Wong be re-sentenced, and the matter be remitted to the lower court for re-sentencing. The court highlighted the need for the lower court to consider Wong's status as a 'serious offender' and the mitigating factors of his assistance to the authorities and the principle of parity.

Orders