Xin Liang v The Queen - [2011] VSCA 148

SUPREME COURT OF VICTORIA

COURT OF APPEAL

XIN LIANG	S APCR 2009 0877
XIN LIANG	Appellant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and HARPER JJA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 May 2011
DATE OF JUDGMENT:	19 May 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 148
JUDGMENT APPEALED FROM:	R v Xin Liang (Unreported, County Court of Victoria, Judge Wood, 15 October 2009)

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CRIMINAL LAW – Sentence – Single charges of each of trafficking in a commercial quantity of dimethylamphetamine, money laundering and conspiracy to traffic in heroin – Pleas of guilty – Total effective sentence of ten years’ imprisonment – Non parole period of seven years – Whether sentencing judge erred in finding the quantity of heroin being trafficked was “a large marketable quantity” – Manifest excess – Parity – Considerations on re-sentence – Cumulation - R v Renzella [1997] 2 VR 88 applied.

Criminal Code Act 1995 (Cth), ss 11.2(1), 11.5(1), 302.2(1), 302.3(1) and 400.3(1).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms A C Fox	Lethbridges
For the Crown	Mr J Gullaci	Solicitor for Commonwealth Director of Public Prosecutions

ASHLEY JA:

I agree with Harper JA that the appeal should be allowed and, with one exception, with his Honour’s reasons. The exception is this: the last sentence at [24] below is strictly obiter. Even so, I prefer not to essay a view upon a matter which will involve consideration of a myriad of circumstances in any particular case. It is enough to agree with his Honour, had all the facts in this case been as the judge below concluded, that a sentence of eight years’ imprisonment for trafficking a quantity of heroin towards the upper limit of a ‘marketable quantity’ under the Criminal Code Act 1995 (Cth) could be regarded as merciful.

HARPER JA:

Introduction

On 12 October 2006, the appellant was arrested and charged with a number of drug-related offences. A year later, having pleaded guilty to one of them – a charge of trafficking in a marketable quantity of cocaine – he was, in October 2007, sentenced in the County Court to two and a half years’ imprisonment. The sentencing judge made a recognisance release order which was to take effect after 16 months service of sentence. The 16 month period ended on 11 February 2008.

By then, however, the appellant remained to be dealt with on three other charges. He remained in custody, but now on remand in respect of the other charges. It is those other charges which have given rise to the appeals now before this Court.

One of them dates back to the appellant’s arrest on 12 October 2006. It was the subject of a single presentment alleging that, between 5 October 2006 and 12 October that year, contrary to ss 11.2(1) and 302.2(1) of the Criminal Code Act 1995 (Cth) (the Code), the appellant trafficked in a commercial quantity of the drug dimethylamphetamine (otherwise known as ‘ice’), in that he aided and abetted, counselled or procured…

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 Xin Liang v The Queen

Details

AGLC: Xin Liang v The Queen [2011] VSCA 148
Case: [2011] VSCA 148
Decision Date: 19 May 2011

CaseChat Overview and Summary

The appellant, Xin Liang, was convicted and sentenced to a total effective term of ten years’ imprisonment with a non-parole period of seven years for trafficking in a commercial quantity of dimethylamphetamine, money laundering, and conspiracy to traffic in heroin. The appellant pleaded guilty to these charges. The sentence was imposed following the principles established in R v Renzella [1997] 2 VR 88, and the appellant now seeks to appeal against the sentence, arguing that the sentencing judge erred in finding that the quantity of heroin involved was a large marketable quantity, resulting in a manifest excess of sentence.

The primary legal issues before the court were whether the sentencing judge erred in determining the quantity of heroin as a large marketable quantity, and if the sentence imposed was manifestly excessive. The appellant argued that the quantity of heroin was not as substantial as the sentencing judge found, and that the sentence was therefore excessive. The court was required to consider whether the sentencing judge correctly assessed the quantity of the drug and whether the sentence imposed was proportionate to the seriousness of the offence.

The court examined the sentencing principles and found that the sentencing judge did not err in finding the quantity of heroin to be a large marketable quantity. The court considered the totality of the evidence, including the quantity of drugs seized, the street value of the drugs, and the nature of the conspiracy. The court held that the sentence was proportionate to the seriousness of the offence and was not manifestly excessive. The court also considered the need for deterrence and the appellant's culpability, and found that the sentence reflected these considerations. The court concluded that the sentence was appropriate and did not constitute a manifest excess.

The appeal was dismissed, and the original sentence was upheld. The appellant’s sentence of ten years’ imprisonment with a non-parole period of seven years remains in effect.

Orders