Court of Appeal (Vic)|2014-03-25|Before: Tate JA, Weinberg JA

Dang v The Queen [2014] VSCA 49 (25 March 2014)

DPP v Dang (Unreported, County Court of Victoria, Judge Lawson, 12 April 2013)

2 This appeal raises a question about the application of the rule against double punishment to charges of trafficking formulated as separate Girreti[1] charges involving the carrying on of a single trade or business in dealing drugs. The question arises in the following circumstances.

3 On 25 March 2013 the appellant,[2] Ly Dang ('Dang'), pleaded guilty to one Giretti charge of trafficking in methylamphetamine, contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) ('the Act'), one Giretti charge of trafficking in heroin, contrary to s 71AC of the Act, and one charge of trafficking a commercial quantity of a drug of dependence (methylamphetamine), contrary to s 71AA of the Act. The charges were the subject of two separate indictments.

4 On the first indictment, (Indictment A12337846), the charges were formulated with the same 'between dates', 25 March 2010 and 19 May 2010, and thus each alleged that Dang had engaged in the trade or business of trafficking in a drug of dependence that had been carried on over the same alleged period. Charge 1 related to methylamphetamine and Charge 2 related to heroin. While there were individual acts of supply, and offers to supply, specific to methylamphetamine and heroin respectively, much of Dang's conduct relied on by the Crown related to engagement in the business of trafficking in a generic sense.

5 On the second indictment (Indictment C1208537.1) Dang was charged with

having trafficked methylamphetamine in a commercial quantity on a particular day (27 April 2012).

6 Relevantly, Dang was sentenced to four years' imprisonment for each of Charge 1 and Charge 2 on the first indictment, with 12 months of the sentence imposed with respect to Charge 2 being cumulative upon the sentence on Charge 1.[3]

7 Dang appeals on the basis that, with respect to the charges on the first indictment, he has been subjected to double punishment in contravention of the principle recognised in Pearce v The Queen[4] because of the overlap of conduct constituting Charges 1 and 2. He also urges that the additional criminality associated with Charge 2 was minimal and that he ought to have received a reduced sentence.

8 For the reasons that follow, I would allow the appeal.

9 Following a plea on 25 March 2013, Dang was sentenced on 12 April 2013 as follows:

Traffick drug of dependence (heroin) [Drugs, Poisons and Controlled Substances Act 1981 s 71AC]

Traffick commercial quantity of drug of dependence (methylamphetamine)

9 years' imprisonment with non-parole period of 6 years and 6 months

10 On 16 October 2013, Nettle JA granted leave to appeal[5] on Ground 1 which was broken up into two sub-grounds:

The sentence imposed on the first indictment offended the double punishment and totality principles in that the sentencing judge erred in failing to take into account the overlap of conduct constituting Charges 1 and 2.

1(a). There was an element of double punishment imposed on the sentence in Charge 2: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610.

1(b). In terms of the need for additional punishment, Charge 2 added only minimal additional criminality to Charge 1.

11 The first indictment concerned Dang's participation in a methylamphetamine and heroin trafficking enterprise headed by Hanh Thi My Lam ('Lam'). Both charges in the first indictment were rolled up and, as mentioned above, covered the same period, that between 25 March 2010 and 19 May 2010.

12 On 25 March 2010, a police investigation commenced monitoring the telecommunication devices of Lam, who was suspected of being involved in the large-scale distribution of heroin and methylamphetamine in the western suburbs of Melbourne. Intercepted conversations between Lam and Dang related to payment to suppliers and the supply of drugs to customers.

13 The gravamen of the case against Dang on the first indictment was that he resided at and maintained security at a 'safe house' at Deer Park rented by Lam to store drugs and acted as a contact person between Lam and her Sydney drug suppliers.

14 Dang's conduct, based upon the Prosecution Opening, which was tendered on the plea, can be divided into four categories.

15 Category 1: conduct consisting of assistance given by Dang to Lam's trafficking enterprise not specifically referable to either drug. This involved Dang:

(1) attending at the safe house to set up business with Lam (2 May 2010);

(2) residing at the safe house and maintaining its security throughout the period the subject of the indictment;

(3) ordering and receiving furniture (8 and 14 May 2010) and accepting installation of unspecified equipment for the safe house (15 May 2010);

(4) interacting with other members of Lam's syndicate;

(5) participating in a purchase of drugs from a supplier called 'Map' (12 May 2010);

(6) discussing payment to suppliers on two other occasions (12 May 2010 and 17 May 2010);

(7) agreeing to deliver drugs (14 May 2010);

(8) discussing quality of drugs (14 May 2010);

(9) discussing resupply of drugs from Sydney (15 May 2010); and

(10) discussing payments from a customer (15 May 2010).

16 For example, with respect to Dang's participation in the purchase of drugs from a supplier called 'Map', the intercepted telecommunications revealed that the particulars of this transaction involved the following:

(1) On 12 May 2010, at 3:17pm Lam and Dang had a conversation with each other in which Dang asked if Lam had rung Map, a large supplier. Lam advised that she had not done it as yet, so Dang said when you do speak to him ask him to come and see me.

(2) At 3.19pm Lam rang Dang's phone and another male answered. Lam told him that 'Map' had gone out with another person. The unknown male then asked Lam to bring her car over as he had to go out for something. Lam asked where Ly [Dang] was and the male replied he had gone out with someone else. Lam said she would come and 'transport something up'.

(3) At 6.35pm Dang asked Lam to tell him the number for 'Map'. Lam gave out the phone number.

17 Category 2: conduct relating solely to methylamphetamine. Dang supplied drugs to a customer (16 May 2010). In addition, on 19 May 2010 he was in possession of 446.4 grams of methylamphetamine which, by his plea, he has admitted was for the purpose of trafficking methylamphetamine.[6]

18 Category 3: conduct relating solely to heroin. Dang:

(1) arranged receipt of heroin at the safe house (14 and 15 May 2010);

(3) made an offer to supply heroin to a customer that was rejected (16 May 2010); and

(4) offered to supply heroin to a customer (17 May 2010).

19 In addition, on 19 May 2010 he was in possession of 114.2 grams of heroin which, by his plea, he has admitted was for the purpose of trafficking heroin.[7]

20 Category 4: conduct comprising a single transaction involving both methylamphetamine and heroin, namely, Dang agreeing to deliver both methylamphetamine and heroin to a customer (16 May 2010).

21 The police executed a search warrant at the safe house on 19 May 2010 and found 446.4g of methylamphetamine, 114.2g of heroin and other drug trafficking paraphernalia at the house.

22 Dang was intercepted driving with Lam on 27 July 2010. No drugs were found in the car but $8,350.00 in cash was found in the doorwell. Both Lam and Dang denied knowledge of the cash.

23 On 29 August 2010 Dang was again intercepted by police while driving and was arrested. No drugs were found in the car but it did contain pieces of a distinctive chess set and a 'paramedics' massage chair from the safe house.

24 Dang was interviewed and made no admissions in relation to drug trafficking. He was granted bail.

25 The second indictment concerned Dang's conduct whilst on bail in relation to the charges on the first indictment. On 27 April 2012, Dang was intercepted driving drugs from Sydney to Melbourne. When they searched the vehicle, the police found two bags, one in the footwell in the rear passenger seat and one in the boot. Each bag contained nearly 1kg of 90 per cent pure methylamphetamine.[8] A notebook containing names and figures was found in the driver's door pocket.

26 When interviewed by the police, Dang admitted that he had rented the car and driven to Sydney to collect methylamphetamine and bring it to Melbourne. He denied knowledge of the bag found at the footwell of one of the passenger seats and of the notebook.

27 At the plea hearing Dang relied upon a number of mitigating factors, including the fact that he had no prior convictions[9] and that he pleaded guilty to both indictments at a very early opportunity.[10] The sentencing judge accepted that the early pleas of guilty indicated that Dang had a genuine desire to resolve all matters and demonstrated real remorse on his behalf.[11]

28 Dang conceded that the matters involved very serious offending.

29 Dang was born in Vietnam and moved to Australia with his family in about 1993.[12] He cannot speak English well,[13] requiring an interpreter at all times.

30 He began using methylamphetamine with his circle of friends in 2010. Gambling became a large part of their social activities and Dang accumulated significant gambling debts.[14]

31 He began working for Lam in order to pay off his gambling debts.[15] He saw the offending as a means to an end, as he was 'in way over his head and he needed a way out'.

32 After Dang was bailed on the first indictment, his creditors began calling in their debts and he found himself in trouble again.[16] He was desperate and accepted the job in the second indictment to remove himself from that situation.

33 Once arrested on the second indictment Dang was very candid with police that he was aware that there were drugs in the car although he did not know their quantity.

34 Dang was supported by two of his brothers and his mother who appeared in court during his plea.[17] Dang's father and mother had just returned from Vietnam and his father was ill.

35 The sentencing judge accepted that Dang had a desire to be a law-abiding person and did not wish to reoffend in the future. Her Honour considered Dang to have reasonable prospects for rehabilitation.[18]

36 The prosecution emphasised that Dang was found in a car with substantial amounts of very high purity drugs. He was close to the source and held a strong role in the organisation.[19] He was very involved in the organisation for a protracted period. The prosecution urged that cumulation was required in view of the serious examples of each offence.

37 No submission was made before the sentencing judge that there was a need to avoid double punishment. Her Honour imposed a sentence without having had the benefit of any argument on the issue.

38 Dang accepted that some of his conduct was solely referable to a particular charge. Thus, conduct belonging to category 2 was relevant only to Charge 1 on the first indictment (trafficking methylamphetamine). Conduct belonging to category 3 was relevant only to Charge 2 on the first indictment (trafficking heroin). However, it was submitted that the bulk of Dang's criminal conduct belonged to categories 1 and 4 and was relevant to both charges. Thus, there was a large overlap in Dang's conduct constituting each of the two charges and, it was argued, there was an element of double punishment in the sentence imposed.

39 In Pearce[20] the High Court held that a person should not be twice punished for what is substantially the same act. In a joint judgment, McHugh, Hayne and Callinan JJ said:

To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.[21]

40 The accused in Pearce had been charged on indictment with maliciously inflicting grievous bodily harm with intent to do the victim grievous bodily harm, contrary to s 33 of the Crimes Act 1900 (NSW), and with breaking and entering the dwelling-house of the same victim and while therein inflicting grievous bodily harm to him, contrary to s 110 of the Crimes Act. The two charges arose out of a single episode. The accused applied to the judge for a stay of proceedings on the ground that the indictment was oppressive or an abuse of process, submitting that he was thereby placed in double jeopardy. The application was refused. He made a guilty plea to several counts including those under s 33 and s 110 of the Crimes Act. For those offences he was sentenced to twelve years' imprisonment to be served concurrently but cumulatively upon the sentence for a different offence under a separate indictment. His appeal to the Court of Criminal Appeal was dismissed. In allowing his appeal, the plurality of the High Court held that as neither of the two offences was wholly included in the other, nor were the elements of the two offences identical, there was no plea in bar; 'each of the offences ... required proof of a fact which the other did not'.[22] Nor did the circumstances warrant a stay of proceedings as the offences were different, and different in important respects, such that 'the laying of both charges could not be said to be vexatious or oppressive or for some improper or ulterior purpose'.[23]

41 However, when it came to the issue of double punishment, the plurality affirmed the principle at common law that an offender ought not be punished twice for the same act or omission. Turning to the facts of the case, they said:

It is clear in this case that a single act (the appellant's inflicting grievous bodily harm on his victim) was an element of each of the offences under ss 33 and 110. The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the inquiry is not to be attended by 'excessive subtleties and refinements'. It should be approached as a matter of common sense, not as a matter of semantics.

The trial judge sentenced the appellant to identical terms of imprisonment on [the two relevant counts] and made those sentences wholly concurrent. We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victim. Prima facie, then, he was doubly punished for the one act.[24]

42 The High Court held that the fact that the sentence for each offence was to be served wholly concurrently with the sentence for the other offence made no difference to the vice that in arriving at the individual sentence for each offence, the sentencing judge must have fixed an appropriate sentence by taking into account the very same conduct. The individual sentences for the two charges 'were flawed because they doubly punished the appellant for a single act, namely, the infliction of grievous bodily harm'.[25]

43 The High Court considered the rule against double punishment again in Johnson v The Queen,[26] in which it emphasised that the rule applied when the conduct of the accused that was relied upon in support of two offences was the very same conduct. It is not necessary for there to be an act which is itself an offence to be an element of the second offence, such as burglary and aggravated burglary. It is sufficient if the conduct of the offender, in the circumstances of the case, involves the commission of elements of two offences.

44 Johnson concerned the commission of an attempt to obtain possession of a commercial quantity of 'ecstasy' and the commission of an attempt to obtain a trafficable quantity of cocaine. The appellant attended upon the room of a man in a Perth hotel whom he believed to have imported into Australia a commercial quantity of 'ecstasy' and a trafficable quantity of cocaine, for the purpose of collecting both drugs. As he attempted to leave he was arrested by the Australian Federal Police who had substituted into the single parcel inert substances, as part of a controlled operation. He pleaded guilty to one count of attempting to obtain possession of prohibited imports to which s 233B of the Customs Act 1901 (Cth) applied ('ecstasy') being not less than the commercial quantity applicable to that narcotic substance, and guilty to one count of attempting to obtain possession of prohibited imports to which s 233B of the Customs Act 1901 (Cth) applied (cocaine), being not less than the trafficable quantity applicable to that narcotic. The sentencing judge ordered that the appellant be sentenced to imprisonment for eight years on count 1 and three and a half years on count 2, to be served cumulatively with a minimum term of five and a half years.

45 On appeal to the Court of Criminal Appeal of Western Australia, the appellant argued that the sentencing judge had disregarded that the actus reus was the same for both counts. In dismissing the appeal, Malcolm CJ[27] erroneously understood that there were two separate parcels collected, not one. In referring to Pearce, he said:

In my opinion, the application of that approach in the present case would obscure the fact that the [appellant] took possession of two separate parcels of two separate drugs. It was not a case where there were two offences where, for example, an act which was itself an offence was also an element of the second offence. There were two separate offences. There was no common element. The relevant circumstance was that two separate offences of possession and attempting to obtain possession of two different drugs occurred at the same time. In my opinion, this is not an example of the one act comprising two separate offences, but two separate acts, one of obtaining possession of ecstasy and one of attempting to obtain possession of cocaine.[28]

46 The High Court allowed the appeal, treating as a serious factual misconception the understanding that there were two parcels rather than one. In upholding the submission that the Court of Criminal Appeal had not had proper regard to the commonality of the offences, Gummow, Callinan and Heydon JJ said:

It is true that the appellant pleaded guilty to two offences, but they had much in common: one inducement, one payment for performance, one occasion, one package and one receipt of it by the appellant. This commonality did require that careful regard be had, in deciding the appellant's appeal, to the totality principle. The error in relation to the number of packages and the failure to refer to the numerous common elements strongly suggests this did not occur.[29]

47 The emphasis the plurality placed upon the particular circumstances of the offending, namely, the one inducement, the one payment for performance, the one occasion, the one package and the one receipt of it, indicates that it is the commonality of the offending behaviour to which regard must be paid. It is what the offender has done, or relevantly omitted to do, which gives rise to criminal culpability and for which he or she stands to be punished. In my view it would be wrong to construe the reference in Pearce to the boundaries of particular offences as inviting a comparison between the formal elements of offences to determine if they overlap; rather, it is a matter of determining whether, in the commission of the offences for which an accused stands convicted, there is any commonality in the offending. That this approach is correct is affirmed by the reference to the totality principle as applied in this context in the passage extracted in Johnson above. The totality principle may be expressed in this way:

[W]hen ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.[30]

48 The principle in Pearce has been applied by this Court in numerous cases. R v Audino[31] is a clear example. There, the appellant pleaded guilty to one count of culpable driving causing death; one count of negligently causing serious injury; and to two summary offences, namely, driving while exceeding the prescribed blood alcohol concentration and driving while disqualified. The sentencing judge fixed a sentence of one month's imprisonment on each of the summary offences to be served concurrently with each other and cumulatively on the sentence for culpable driving (six years' imprisonment). This Court[32] held that the act of driving with excess blood alcohol was an element of both the summary offence of driving while exceeding the prescribed concentration of alcohol and the culpable driving offence, and that the appellant should not be punished twice for the same act. In re-sentencing the appellant, the Court ordered that there was to be no penalty for the summary offence of driving with excess alcohol in the blood.

49 Audino was applied in Healey v The Queen,[33] in which the appellant pleaded guilty to four counts of negligently causing serious injury and two summary offences of driving while exceeding the prescribed concentration of alcohol and exceeding the speed limit. This Court held that the sentencing judge had erroneously imposed double punishment for the two summary offences where the elements of the summary offences provided the basis for the convictions on the other counts. Recognising that the recording of a conviction is itself a form of punishment,[34] the Court held that the convictions on the summary offences should be set aside.[35]

50 The rule against double punishment has been given statutory expression in Victoria by s 51 of the Interpretation of Legislation Act 1984 (Vic)[36] which provides:

51 Provisions as to offences under two or more laws

(1) Where an act or omission constitutes an offence under two or more laws, the offender shall, unless the contrary intention expressly appears, be liable to be prosecuted under either or any or all of those laws but shall not be liable to be punished more than once for the same act or omission.

(2) In subsection (1) law means -

(a) an Act or a provision of an Act;

(b) a subordinate instrument or a provision of a subordinate instrument; or

(c) common law.[37]

51 It was argued in R v Bekhazi[38] that there had been a breach of s 51 where an offender was sentenced to six years and four months' imprisonment on one count of culpable driving causing death under s 318 of the Crimes Act 1958 (Vic) (count 1) and two years and eight months' imprisonment on one count of recklessly engaging in conduct that placed or may have placed others in danger of death under s 22 of the Crimes Act (count 2). The sentencing judge ordered that eight months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1. The appellant submitted that the offence created by s 22 was an offence punishable only by reference to the course of conduct which it described, in contrast with those offences which invite punishment by reference to the 'result' contemplated by the offence, including the identification of a particular victim. As the course of conduct relied upon by the Crown for count 2 was alleged to be the same, or substantially the same, conduct upon which it relied to prove the culpable driving charge in count 1, the appellant submitted that the sentencing judge was not entitled to punish him separately for the offence alleged in count 2. In dismissing the appeal, Winneke P rejected the view that count 2 could be established simply by proof of a course of conduct; he held that it inherently involved endangering the lives of contemplated persons. Each offence contemplated harm flowing to different identifiable 'victims'.[39] He said:

The submissions made on behalf of the appellant were attractively put, but they cannot, in my view, succeed. The offence charged in count 1 was an offence which depended for its proof upon evidence or admission of grossly negligent and/or drug induced driving causing the death of a particular person; whereas the offence charged in count 2 depended for its establishment upon evidence of reckless conduct which placed or may have placed different persons in danger of death. Each offence has, therefore, distinctly different elements and each is, in my view, an offence against the person. It is true that the offences were linked in time and place - at least in this case - by the same course of driving, but they were not offences constituted by the same acts or omissions resulting in harm to the same person. It follows that I cannot accept the appellant's submission that the offence created by s 22 ... is established simply by proof of a course of conduct as might be the offence of 'driving in a manner dangerous to the public'. Rather it requires the proof of reckless conduct which endangers the life of contemplated persons. The fact that the danger contemplated by the section has not materialised seems to me, at least for these purposes, to be immaterial. In this sense, the charging and punishment of the appellant on counts 1 and 2 are, in my view, no different from charging an accused person with the offence of culpable driving causing the death of one person and the offence of negligently causing injury to another arising out of the same course of driving.[40]

[I]n this case, it was not the manner and course of driving which constituted the offences charged against the appellant. ... the essential elements of those offences were discretely different; namely gross negligence and/or driving under the influence of drugs causing death to victim A; and reckless conduct endangering the lives of victims B and C.[41]

53 Winneke P recognised that s 51 was significantly different from its predecessor, s 28 of the Acts Interpretation Act 1958, which provided that an offender should not be liable 'to be punished twice for the same offence'. It was argued before him that s 51, by referring to 'the act or omission' rather than 'the offence', focuses upon 'the foundation of the offence rather than the ingredients of the offence ... [so that] double punishment is precluded, notwithstanding that the elements of the offences are different, if each offence was "founded upon substantially the same facts"'.[42] While he accepted that the focus had changed somewhat he took the view that the acts or omissions which needed to be established to make out the offence of culpable driving causing death were different from those acts or omissions necessary to support a conviction for reckless conduct endangering lives. This was especially so because neither offence could be established by reference to conduct alone but required reference to the consequences of the conduct.

I accept that the provisions of s 51(1) of the 1984 legislation are significantly different from the provisions of s 28 of the 1958 legislation. The latter provisions were intended to embody the common law principles which were focused on autrefois convict. In other words, a person was not liable to be punished twice for the same offence. The provisions of s 51 of the 1984 legislation contemplate that a person is not liable to be punished more than once for 'the same act or omission' constituting more than one offence. However these provisions will not avail the appellant in this case if, as I think, the acts or omissions constituting the offence under s 22 of the Crimes Act are not the same 'acts or omissions' constituting the offence under s 318 of that Act. It is clear that 'acts or omissions' referred to in s 51 are not to be equated with the elements or ingredients of the offences which they comprise. Rather, they are the constituent acts or omissions which must be established to prove the relevant offence. It is not sufficient to establish either the offence prescribed by s 318 of the Crimes Act or the offence prescribed by 22 of that Act to merely prove a course of driving which can be described either as 'grossly negligent' or reckless'. In my view, the constituent 'acts or omissions', essential for the proof of the respective offences, will necessarily include the consequences (namely death or danger of death) which the sections contemplate must flow to the victims of the offences created.[43]

55 Counts 1 and 2 depended upon different acts or omissions because they breached separate obligations owed to distinct individuals. He continued:

In the eyes of the criminal law, it is the existence of the separate obligations owed to the several victims of the one criminal act which, in part, defines the acts or omissions constituting the different offences arising from that act. It is that concept which, I think, underlies the 'fundamental distinction', referred to by Ipp J in Phillips v Carbone (No 2) ... between a single act that contravenes more than one 'law', and a single act that harms more than one person.[44]

56 The same conduct can thus constitute distinct criminal acts. Thus, as Vincent JA observed, the detonation of a bomb in a shopping centre may appear to involve a single action but, at law, involves the commission of a separate criminal act against each victim, whether the act be murder, attempted murder, or a lesser offence.[45]

57 Winneke P rejected the proposition that the judge erred in imposing the sentences he did with respect to both counts on the indictment. However, he accepted that the sentencing judge could not ignore 'the "commonality" of the circumstances from which each offence derived'[46] because the judge was obliged to consider the totality of the punishment to be inflicted. He found no error in the conclusion that there should be cumulation nor did he find that the cumulation ordered was excessive.

58 There may be a sharper focus upon the commonality of the circumstances from which each of two offences is derived with respect to offences that are not premised on a breach of an obligation to an individual. This is so, for example, where an offender is charged with both trafficking and possession in respect of the same drug arising out of the same circumstances, where there is 'an overlap of factual matters'.[47] In Langdon[48] the Court allowed appeals against sentence when, following a plea of guilty, each appellant had been convicted of one count of trafficking in amphetamine and one count of possession of amphetamine. Gillard AJA[49] concluded that there had been double punishment and said:

The issue of whether there has been double punishment is to be resolved by approaching the matter as a matter of common sense. It is correct that one may traffick without ever having actual possession of the drug and equally, it is possible to have possession without trafficking. Each case must be determined in accordance with its own circumstances. In my view, there is a strong connection between the possession and the trafficking in the present case. Having in possession a trafficable quantity of amphetamines is part and parcel of the trafficking which in this case concerned manufacture and distribution by the same persons who had possession. The Langdons were in possession because they were both the manufacturers and the distributors. Possession was central to their enterprise. In the particular circumstances of this case it is my view that the act of possession was common to both the trafficking and possession counts and accordingly there had been double punishment for the criminal act common to both counts.[50]

59 The closeness of connection between offences, adverted to by Gillard AJA, may provide a guide as to when there is a risk of double punishment. This is apparent from the recent case of Kruzenga v The Queen[51] where the offender pleaded guilty to one charge of armed robbery and one charge of shortening the barrel of a longarm. He was sentenced to five years' imprisonment for the armed robbery and 18 months' imprisonment for having shortened the barrel of the firearm, 12 months of which was to be served cumulatively with the armed robbery offence, making a total effective sentence of six years' imprisonment. The circumstances of the offending involved the offender driving his mother's car to the National Australia Bank in Camberwell and having with him a backpack in which was concealed the shortened shotgun, a pair of dark sunglasses, and a black wig. He entered the bank through the front door and once the area became clear of customers he approached a counter and removed the sawn-off weapon from his backpack, pointed it at the teller and said 'Give me the money, just give me the 20's and 50's'. He took the money and left by the rear door. Weinberg JA[52] concluded that the sentences imposed involved an element of double punishment and that the sentencing judge had impermissibly treated the shortening of the shotgun both as an aggravating factor of the armed robbery, as well as demanding substantial punishment as a distinct offence, without recognising any need for moderation. His Honour said:

It must be remembered that the shotgun was shortened for one reason only, to enable it to be used in the commission of the armed robbery. It was necessary, in the circumstances of this case, for the sentencing judge to take great care not to treat the shortening of the weapon as both an aggravating feature of the armed robbery, and a separate and distinct offence requiring both a significant measure of punishment and a substantial degree of cumulation.[53]

60 The necessary care had not been taken. The sentencing judge considered the connection between the two offences justified a greater rather than a lesser degree of cumulation between the two offences. Weinberg JA continued:

The judge took the view that the appellant's act of shortening the weapon made his 'crimes' more serious. Plainly, her Honour treated that act as an aggravating feature of the armed robbery, as well as an offence in its own right. To describe it as an 'aggravating feature' would have been an apt assessment, so far as the armed robbery was concerned, had that offence stood alone. However, there was a clear need to avoid giving significant weight to that factor, when sentencing for the armed robbery, in circumstances where there was to be a separate and substantial punishment for the firearm offence as well.[54]

61 The approach adopted in Kruzenga was consistent with that adopted earlier by Redlich JA in Armistead v The Queen.[55] In that case the offender was convicted of two counts of armed robbery and, relevantly, one count of possessing an unregistered firearm while being a prohibited person.[56] The possession charge was a distinct offence as the act of possession the subject of the count was not the act of possession at the time of the armed robbery. However, the offender's use of the firearm was an act constituting an element of the armed robbery. His Honour said:

The sentencing judge was therefore required to impose sentences on the possession counts that did not include any penalty for the possession or use of the firearm in the course of the armed robberies. The Crown conceded that to avoid punishing the appellant twice for the same act, the sentence on the ... count of possession needed to be reduced to reflect ... the fact that the appellant was not being punished on that count for the use of the firearm in either of the armed robberies ... .[57]

62 The sentencing judge had imposed a sentence of two years' imprisonment on the possession count. Redlich JA noted that a sentence of two years or above for possession was typically reserved for those cases where the possession was for the purpose of being used in criminal activity. Having already punished the offender for the use of the firearm in the armed robberies, the sentencing judge could not take into account for a second time the association with criminal activity when sentencing the offender for possession. He said:

Sentences in the order of two years for the offence of possession of an unregistered firearm whilst being a prohibited person are usually reserved for cases where the firearm is in fact used in the commission of an offence, or is possessed for a specific criminal purpose, or is 'associated with ongoing criminal activity'. Cases in which the possession cannot be so characterised normally attract sentences considerably lower than two years' imprisonment. The sentence imposed has left me uneasy that his Honour treated the fact that the appellant used the ... firearm in the armed robberies as establishing that the possession was for a specific criminal purpose so as to aggravate the offence of possession, and in that way an element of double punishment crept into the sentence. Having been punished for his use of the firearm in the armed robbery, the range of sentences open to the sentencing judge was not those for possession associated with criminal activity.[58]

63 Here Dang argued that the conduct comprising category 1, not being specifically referable to either drug, cannot be separated out as applying to one charge or the other. He also argued that there was a commonality in the circumstances identified in category 4 from which the two charges were derived. It was submitted that the sentencing judge ought to have fixed a sentence on Charge 1 and then, 'in fixing the sentence for [Charge 2], impose[d] a sentence in respect to the matters which are not common to [Charge 1]'. It was necessary, so it was argued, for the individual sentence on Charge 2 to have been moderated to the extent of the overlap between it and Charge 1 so that 'no part of the sentence' for Charge 2 punished the appellant for conduct covered by Charge 1. Acceptance of the submission depends on the application of Pearce to circumstances where the offences have been charged as Giretti charges.

64 A charge for trafficking, formulated as a Giretti charge, alleges that an offender has engaged in on-going trafficking over a period of time rather than an allegation of a specific act of trafficking on or about a particular date, as was here the form of the charge on the second indictment. It has been held not to offend the rule against duplicity on the basis that trafficking is a continuing offence; 'traffick' in its ordinary meaning connotes the existence of a continuing business and the definition in s 70 of the Act is an inclusive one not precluding trafficking being based upon a continuing course of conduct. It is, therefore, 'immaterial for the purpose of proof of the offence whether the defendant's conduct was or was not an isolated act'.[59] A Giretti charge for trafficking is based upon the recognition that

some types of offending conduct, such as drug trafficking, may not be confined to a single act, but can be a continuing offence between dates which comprehends the carrying on of a trade or business in dealing drugs and may involve multiple dealings of small quantities which accumulate into a prescribed quantity.[60]

65 In Giretti the offenders were proprietors of a massage/prostitution business who, as an adjunct to that business, dealt in heroin by procuring stocks of heroin from which prostitutes were paid in lieu of cash for work done or sexual favours rendered. The offenders also gave heroin in return for cash or other services supplied (for example, to men who drove the prostitutes to their place of assignation). Thus, as Crockett J said:

The engagement in such activity had a regularity and continuity that would enable it properly to be described as the conduct of an on-going business of heroin trafficking. It was because the case was put that way that the counts were framed as they were.[61]

66 What is critical is proof of conduct that allows the inference to be drawn that a business in drug-dealing is being engaged in; this may require more than establishing a number of separate transactions but rather depend on additional evidence relating to the regularity or commerciality of the course of conduct. As Ormiston J said:

[T]he continuous offence of trafficking ... cannot ordinarily be established by proving merely a number of transactions over a period of time; rather it is the inference to be drawn from those transactions which is critical to the jury's consideration whether the continuous offence of trafficking has been made out by proof of a trade or business of dealing in drugs. The relevant inference to be drawn ... must be that the accused is carrying on the trade or business of dealing in drugs, or, perhaps, is engaged on a regular and commercial basis in the transmission of drugs from source to consumer. That inference can be drawn from evidence of a sufficient number of transactions by way of sale, delivery or otherwise through the accused, together with such other evidence as will entitle the jury to reach the conclusion that the accused was engaged in the disposition or transmission of proscribed drugs to the extent necessary to establish that those transactions were on a regular and commercial basis during the period of the alleged offence.[62]

67 The actus reus of a Giretti charge is the dealings done in the course of the business. As Ashley JA said in Mustica v The Queen; DPP v Mustica:[63]

The essence of a Giretti count, in the context of drug trafficking, is that between specified dates the accused trafficked a drug by undertaking what has been called a relatively continuous trade, business or dealing in the drug, this not requiring any formal business structure or organisation. There can be no finding of guilt on a Giretti count unless the jury so finds. It may infer that the accused was carrying on such a business even though it is unable to unanimously conclude that an individual dealing relied upon by the Crown was either engaged in at all, or else was a dealing in the course of the trafficking business. It is also open to a jury to conclude that such a business was being carried on if it finds that, for a significant part of the within dates period, the accused was so acting.

The actus reus of a Giretti count of trafficking is thus constituted by the dealings which the jury finds were done in the course of a business engaged in by the accused.[64]

68 The interaction between the rule against double punishment and Giretti charges was considered by Weinberg JA in Trajkovski v The Queen[65] in the context of multiple charges of trafficking. Relevantly, the accused pleaded guilty to one count of trafficking a commercial quantity of methylamphetamine on or about 29 December 2005 (count 4) and was convicted after trial on a Giretti count of trafficking in a commercial quantity of methylamphetamine between 26 August 2005 and 28 December 2005 (count 1). He pleaded guilty to multiple other offences. He was sentenced to seven years' imprisonment on count 1, two years and six months of which was to be served cumulatively on a base sentence of 11 years' imprisonment for a distinct offence of trafficking a large commercial quantity of methylamphetamine (count 3), and five years' imprisonment on count 4 with a cumulation of 18 months. The total effective sentence was 17 years' imprisonment.

69 The accused argued on appeal that the sentencing judge had erred by doubly punishing him with respect to counts 1 and 4 in that there ought not to have been any cumulation between the sentences on those two counts because count 4 related to a quantity of methylamphetamine which he held in reserve, as wholesale stock, in order to enable him to carry on the business of Giretti trafficking that formed the basis of count 1. Weinberg JA treated the complaint of double punishment as in effect subsumed under the ground that the total effective sentence, individual sentences and non-parole period were manifestly excessive[66] but went on to say:

I would also accept the submission that count 4 was so closely linked to count 1 as to make it inappropriate for there to be any cumulation between those two offences. These were notionally two separate acts of trafficking, but they involved essentially one act of carrying on a business in the trafficking of the one batch of drugs. The drugs in count 4 were simply the residue of the drugs sold as the basis for count 1.[67]

70 The argument made here by Dang is that the actus reus of the Giretti charges of trafficking in methylamphetamine and trafficking in heroin, that is, the dealings in the drugs from which the inference could be drawn that he was engaged on a regular and commercial basis in the transmission of drugs from source to consumer between 25 March 2010 and 19 May 2010, was the same for the two trafficking charges, insofar as the conduct identified in category 1 and category 4 was concerned. This ought to have led to a moderation of sentence.

(3) Was there commonality between the two offences?

71 The Crown submitted that the rule against double punishment does not apply to the circumstances of the case.[68] It was submitted that Johnson can be distinguished because there the two offences arose out of the one act, giving rise to an overlap in the elements contained in each of the two charges. In the present case, because each of the charges in the first indictment was put on the basis of Giretti trafficking the offences were separate and constituted by separate and multiple acts, one involving the trafficking of methylamphetamine and one involving the trafficking of heroin. The only common aspect between each of the two charges, it was submitted, is that they have the same commencement date and the same end date, but there was no other commonality between the two charges. What was involved was, on the one hand, the transmission of methylamphetamine from source to consumer, on a continuous basis over a period of time and in a commercial setting and, on the other hand, the transmission of heroin from source to consumer, albeit also on a continuous basis over a period of time and in a commercial setting.

72 The Crown sought to draw a distinction between the evidence relied upon to prove the offences and the acts that form part of the commission of the offences. It sought to distinguish between evidence that linked Dang to premises, thereby demonstrating his role in the drug trafficking syndicate, and, conversely, acts which form part of the commission of the charged offences.

73 It contended that all of the undifferentiated matters comprising the category 1 conduct are admissible generally as proof of the role played by Dang in the drug trafficking syndicate. The syndicate consisting of Dang, Lam and others operated in respect of each of the drugs, methylamphetamine and heroin, because of the structure of the organisation and the way it conducted its business. Significant amounts of both drugs were distributed by Dang while he was acting in concert with Lam.

The undifferentiated items of evidence in 'category 1' showed the extent of the role played by [Dang]. There was nothing to differentiate between the role played in the heroin trafficking as opposed to the crystal methylamphetamine. It was open to her Honour to treat the role as the same.

But that only means that when trafficking one drug he acted in the same way as he did when trafficking the other. Put another way, the acts that he did when trafficking one drug were of the same nature as those involved in trafficking the others. It does not mean that the same acts are relied on for trafficking one drug as opposed to the other.

In the circumstances therefore, there is no double punishment or overlap of elements.[69]

75 There are difficulties in the approach taken by the Crown. The first concerns the distinction it seeks to draw between the evidence that links Dang to the safe house and the acts which form part of the commission of the trafficking offences. As has been emphasised above, the charges on the first indictment were not formulated as separate and distinct acts of trafficking but were Giretti charges based on the existence of what Ashley JA described in Mustica as 'a relatively continuous trade, business or dealing in the drug'.[70] Proof of the offence of trafficking, formulated as a continuous offence in such a way, requires that the inference can be drawn not 'merely [that there were] a number of transactions over a period of time' but, as Ormiston J said in Giretti, that 'the accused was engaged in the disposition or transmission of proscribed drugs to the extent necessary to establish that those transactions were on a regular and continuous basis during the period of the alleged offence'.[71] Unless the inference of regularity and commerciality can be made out, 'there can be no finding on a Giretti count'.[72] The basis for the necessary inference will be drawn from individual acts of supply and distribution (although it is not necessary in a jury trial for the jury to unanimously conclude that any particular dealing was carried out) but also, importantly, from the evidence which reveals the on-going nature of the business and links the accused to that business. Evidence of the business-like nature of the supply of drugs is essential to a Giretti charge of trafficking.

76 It follows that the conduct relied upon in category 1 was critical to establishing the inference that Dang was involved in the trade or business of dealing in drugs. The evidence that linked Dang to the safe house where drugs were stored and revealed his interaction with other participants in the syndicate provided part of the proof of the commission of a Giretti charge of trafficking. It was not merely incidental to that charge or identified by way of background to the commission of the offence.

77 The second difficulty in the Crown's approach is that it seeks to treat the role played by Dang in the trafficking of methylamphetamine, as revealed by the undifferentiated conduct in category 1, as no more than 'of the same nature' as the role he played in the trafficking of heroin rather than as comprising the very same behaviour. While this behaviour was much more complex than the single act of the appellant in retrieving a parcel purportedly containing both 'ecstasy' and cocaine in Johnson, it was nevertheless the case that, for example, Dang's attendance at the safe house on 2 May 2010 to set up business with Lam occurred once. There was no suggestion that he attended twice, once for the purpose of setting up business with Lam to traffick heroin and then on another occasion to establish the methylamphetamine trafficking business. So too, Dang's residence at the safe house throughout the alleged period is a single pattern of behaviour. His acts of accepting installation of unspecified equipment at the safe house from 'Green for Life' on 15 May 2010, and signing a certificate of receipt, relied on as proof of his occupancy of the safe house, occurred once. The link connecting Dang to the premises where the drugs were stored was central to the enterprise and was common to both trafficking offences. In my view, it is not faithful to the facts alleged to describe these matters as merely revealing acts 'of the very same nature'. They are the same acts.

78 Much of the conduct in category 1 was not itself unlawful, and thus did not give rise to several species of criminal liability in the way that the detonation of a bomb may give rise to criminal culpability for murder, attempted murder, and other offences.[73] Nor did the conduct breach separate and distinct obligations to different individuals or victims, as Winneke P held arose from the circumstances in Bekhazi.[74] By contrast with the offences considered in Bekhazi, namely, culpable driving causing death and recklessly engaging in conduct that placed or may have placed others in danger of death, a Giretti charge of trafficking depends upon an allegation of a general course of conduct. The charge does not arise by reference to any specific victim, and thus cannot be differentiated by means of the different individuals affected by the conduct.

79 The probative value of the category 1 conduct lay in its capacity to link Dang to a drug trafficking business. However, the drug trafficking business in which the Crown alleged Dang was engaged, in a joint criminal enterprise with Lam, was a single business of drug trafficking. That business sold and supplied both methylamphetamine and heroin but it remained a single business. The singularity of the business was reinforced by the undifferentiated nature of the conduct in category 1 with respect to the discussions of purchasing, payments, and delivery of drugs.

80 To submit that the conduct in category 1 revealed only acts of the 'same nature' in trafficking one drug as opposed to those involved in trafficking the other drug artificially suggests that, relevantly, Dang was involved with Lam in two separate businesses and that the behaviour that linked him to one business was similar, but not the same, as the behaviour that linked him to the other business. The facts relied on by the Crown did not allege or establish that there were two separate businesses. In my view, the capacity to offer a different description or characterisation of the same conduct, one relating to the trafficking of methylamphetamine and the other relating to the trafficking of heroin, cannot deny the 'commonality of the circumstances from which each offence derived'.[75]

81 Put another way, the conduct in category 1 was 'part and parcel'[76] of both the Giretti charge of trafficking in methylamphetamine and of the Giretti charge of trafficking in heroin. There was a closeness of connection between Charge 1 and Charge 2 which rendered it necessary for the sentencing judge to avoid double punishment.[77]

82 In my view, the sentencing judge was here obliged to modify the individual sentences to avoid a risk of double punishment given the commonality of the circumstances in category 1 to the two trafficking offences charged on the first indictment. The fact that the individual sentences fixed in respect of Charge 1 and Charge 2 were the same (four years' imprisonment), together with the order for cumulation of one year, indicates to me that the sentencing judge did not modify the sentence on Charge 2. Nor, as mentioned above, did the judge indicate that she intended to so modify.

83 In my view, in respect of the conduct in category 1, the sentencing judge erred in doubly punishing Dang because, in summary:

• The conduct relied on was indistinguishable in time;

• There were no separate obligations owed to specific or contemplated individuals;

• The conduct occurred as part of a general on-going course of conduct and was relied on precisely for that reason as a Giretti charge;

• The facts alleged established that there was a single business involved in the sale and supply of both methylamphetamine and heroin and the category 1 conduct linked Dang to that business;

• There was a strong connection between Charge 1 and Charge 2.

84 I consider the category 4 conduct to be in a slightly different class. Dang's agreement on 16 May 2010 to deliver both methylamphetamine and heroin to a customer was not undifferentiated conduct, as was the conduct in category 1, that is, conduct that did not relate specifically to either drug. Rather, the category 4 conduct was conduct which related directly and specifically to both drugs. For that reason, it was necessary for the sentencing judge to ensure that the sentence she imposed on Charge 1 (trafficking in methylamphetamine) did not include punishing Dang for agreeing to deliver heroin on 16 May 2010. Neither the sentence imposed, nor the sentencing remarks, indicate that this occurred.

85 While her Honour referred to the principle of totality in her sentencing remarks, this was in the context of indicating that she would order that some of the sentence imposed in respect of the second indictment was to be served concurrently with the sentence imposed in respect of the first indictment.[78] There was no indication that her Honour was mindful that, in respect of the first indictment, there was a need to consider an appropriate sentence for the totality of the offences charged[79] that did not involve punishing twice for the same conduct.

86 It was submitted by Dang that the criminality associated specifically with Charge 2, the trafficking of heroin (category 3) was modest. It was argued that what the sentencing judge ought to have done, but did not do, was to fix a sentence for Charge 1 by taking into account the conduct specific to Charge 1 (category 2) as well as exhausting the criminality associated with the over-lapping conduct (category 1 and category 4), leaving only the remaining heroin-specific conduct (category 3) to be sentenced in relation to Charge 2. This would have had the effect that the criminal culpability for which Dang stood to be sentenced on Charge 2 was minimal. On that approach, a sentence of four years on Charge 2 would be manifestly disproportionate to the sentence imposed on Charge 1. While it was accepted that some cumulation would be appropriate, a reduced individual sentence on Charge 2 would likely yield a smaller period of cumulation.

87 Dang conceded on the hearing of the appeal that the category 4 conduct differed from the category 1 conduct in the manner identified above. It was accepted that the proposed approach could be modified so that the criminality associated with the agreement to deliver heroin, referred to in category 4, could be taken into account when considering Charge 2 (and omitted when considering Charge 1) but, it was contended, this would still warrant a reduced sentence on Charge 2.

88 It was further accepted that, given that the choice of the base was a matter for the sentencing judge, it would have been permissible for her Honour to have first fixed a sentence for Charge 2, exhausting all the heroin-specific and overlapping conduct, and then sentenced for Charge 1 only in respect of the methylamphetamine-specific conduct (category 2 and that part of category 4 relating to the agreement to deliver methylamphetamine) which, in turn, it was contended, would reveal minimal additional criminality.

89 In my view, it would be unwise and overly prescriptive to mandate that one approach to the problems in sentencing which the circumstances of this case reveal should be preferred over all other approaches. As McHugh, Hayne and Callinan JJ said in Pearce:

Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision.[80]

90 None of the authorities discussed above indicate that a sentencing judge is to exhaust all the criminality associated with overlapping conduct in the fixing of an individual sentence on one charge, leaving the sentence on the other charge to be fixed without reference to the overlapping conduct. The obligation apparent in Pearce and in Johnson is rather to modify the sentences on charges arising from overlapping conduct to avoid double punishment; s 51 of the Interpretation of Legislation Act imposes the same obligation. The duty may be discharged in a variety of ways.[81]

(5) Could Charge 1 and Charge 2 have been rolled-up into the one charge?

91 During the course of the hearing of the appeal, the question was raised as to whether Dang could have been charged with a single rolled-up charge of trafficking a commercial quantity of two drugs of dependence (methylamphetamine and heroin)?

92 The Crown indicated that the Act allowed for this. Section 71AA of the Act would permit the Crown to charge an offender with 'traffick[ing] ... in a quantity of a drug of dependence or of 2 or more drugs of dependence that is not less than the commercial quantity applicable to that drug of dependence or those drugs of dependence'.

93 The aggregation of the quantities of both drugs would be permitted to arrive at a 'commercial quantity'. Section 70 defines 'commercial quantity' to include:

(d) in relation to 2 or more drugs of dependence, means an aggregated commercial quantity of those drugs.

94 In turn, an 'aggregated commercial quantity' is defined in s 70 by way of a formula for arriving at a commercial quantity of a number of different drugs each of which is below a commercial quantity.

95 So much was accepted by Dang. Notionally he could have been charged with a single rolled-up charge of commercial trafficking with respect to both methylamphetamine and heroin. However, had different charges been laid Dang may or may not have pleaded guilty and, as the Crown conceded, appropriately in my view, one can readily understand why the defence would not readily agree to a plea of guilty if the Crown were to adopt this course. A single rolled-up charge of commercial trafficking in drugs of dependence may give an impression that an accused played a larger role in a criminal enterprise than he or she would wish to convey.

96 In any event, the sentencing judge was required to sentence on the basis of the charges that were before her Honour; '[c]onsideration of different offences for which an offender might have been convicted is merely a distraction'.[82]

97 In my view, there was an element of double sentencing by the sentencing judge in the imposition of a sentence of four years on each of Charges 1 and 2, and in the order that one year in respect of Charge 2 be served cumulatively on the sentence fixed on Charge 1. The existence of a specific error has been made out. The sentencing discretion is thus re-opened. It will be necessary for this Court to re-sentence Dang, being mindful of the commonality of the circumstances from which the offences are derived and the obligation at common law and under statute to avoid double punishment.

98 Before determining what appropriate sentence ought be imposed on Dang, it is necessary first to address the concern that any reduction in the sentence for Charge 2, and in the order for cumulation, would amount to no more than 'tinkering' or 're structuring' the sentence. Requests of this nature have been firmly discouraged by this Court.[83]

99 However, while a mere structural objection to a sentence imposed is to be discouraged, the case is different where the objection 'reveal[s] error in the instinctive synthesis'.[84]

100 In my view, the circumstances of this case demonstrate that there was a specific error in the sentencing process and thus an error in the instinctive synthesis in which her Honour engaged. Dang was not sentenced according to law. I have already indicated that this conclusion does not involve criticism of the sentencing judge as she was not given the assistance she was entitled to expect.

101 Taking into account the commonality of the offending, I would re-sentence the appellant as follows:

Traffick drug of dependence (heroin) [Drugs, Poisons and Controlled Substances Act 1981 s 71AC]

8 years and 6 months' imprisonment with non-parole period of 6 years

[1] R v Giretti and Giretti (1986) 24 A Crim R 112 ('Giretti'). The implications that flow from the offences being charged as Giretti charges are discussed below.

[2] On 16 October 2013 Nettle JA granted Dang leave to appeal on a limited basis. See further below.

[3] DPP v Ly Dang (Unreported, County Court of Victoria, 12 April 2013) ('Sentencing remarks').

[5] Leave was refused on Grounds 2 (manifest excess in relation to individual sentences on first indictment) and 3 (Charge 2 sentence and order for cumulation manifestly excess). Dang has not elected to renew those grounds. There is also no challenge to the sentence imposed on the second indictment.

[6] This was accepted at the hearing of the appeal.

[7] This was accepted at the hearing of the appeal.

[21] Ibid 623 [40]. (Gummow J agreeing, 629 [68]-[69]).

[24] Ibid 623 [42]-[43] (emphasis added; footnote omitted).

[25] Ibid 624, [49]. As Gillard AJA said in R v Langdon [2004] VSCA 205; (2004) 11 VR 18, 34 [91] ('Langdon'), in his discussion of Pearce, 'the same factual matters constituted the element of infliction of harm'. See further below.

[27] With whom Wallwork J and White AUJ agreed.

[28] Johnson v The Queen [2002] WASCA 102; (2002) 26 WAR 336, 344-5 [26] (emphasis added).

[29] Johnson [2004] HCA 15; (2004) 78 ALJR 616, 625 [33]. Gleeson CJ agreed with the reasons of the plurality for allowing the appeal (617 [1]) as, relevantly, did Kirby J (626 [38]).

[30] Johnson [2004] HCA 15; (2004) 78 ALJR 616, 623 [18], (emphasis added), quoting from Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 63 in which Wilson, Deane, Dawson, Toohey and Gaudron JJ adopted a statement from D. A. Thomas, Principles of Sentencing (Heinemann, 2nd ed, 1979), 57. The plurality cast doubt on the view that the totality principle only applies in a case of an otherwise crushing burden of an aggregation of sentences (624 [22]).

[32] Maxwell ACJ (Ashley and Neave JJA concurring).

[34] Healey [2008] VSCA 132; (2008) 186 A Crim R 433, 439 [30]. See Audino [2007] VSCA 318; (2007) 180 A Crim R 371, 375 [18]; R v Sessions [1998] 2 VR 304; Koch v The Queen [2011] VSCA 435, [45]-[46].

[35] Healey [2008] VSCA 132; (2008) 186 A Crim R 433, 440 [34], 447. We put to one side those cases where the relevant conduct also constitutes a breach of a court order such as the breach of a condition of an Extended Supervision Order which has been held to involve separate or additional criminality: Loader v The Queen (2011) 33 VR 86, 97 [54]; Lecornu v The Queen (2012) 222 A Crim R 73, 79 [19].

[36] See Langdon [2004] VSCA 205; (2004) 11 VR 18, 34 [90] (Gillard AJA, with whom Batt and Eames JJA agreed).

[39] Indeed, count 1 was drawn by reference to Kathleen Hornidge who died and count 2 was drafted by reference to Vivienne Archdall and Owen Morland who had been placed, or may have been placed, in danger of death.

[40] Bekhazi [2001] VSCA 178; (2001) 3 VR 321, 326 [8] (footnote omitted).

[44] Ibid 330 [14]. Charles and Vincent JJA agreed with Winneke P.

[47] Langdon [2004] VSCA 205; (2004) 11 VR 18, 35 [96].

[49] With whom Batt and Eames JJA agreed.

[50] Langdon [2004] VSCA 205; (2004) 11 VR 18, 35 [97] (emphasis added). See also Batt JA: 'I agree with Gillard AJA. In my opinion, the possession ... was part of the trafficking' (19 [1] (emphasis added)).

[51] [2014] VSCA 10 ('Kruzenga').

[53] Kruzenga [2014] VSCA 10, [15].

[54] Ibid [19]. His Honour set aside the sentence of 18 months on the offence of shortening the barrel of the shotgun and substituted a sentence of 12 months for that offence, with four months to be cumulated, giving a total effective sentence of five years and four months.

[55] [2011] VSCA 84 (with whom Weinberg JA agreed).

[56] The conviction on a second possession count was quashed.

[59] Giretti (1986) 24 A Crim R 112, 118 (Crockett J). As it was not a matter of alleging multiple offences, the prosecution was not required to elect as to which particular offence it relied on. While Gray J agreed with Crockett J and Ormiston J (insofar as they were in agreement) Ormiston J was concerned that the trial judge in his summing-up had not clearly differentiated between a single act which might have constituted the offence of trafficking and the continuing offence so that some jurors might have convicted on the basis of a single act whereas others may have arrived at their verdict on the basis of a continuing offence over some period of time.

[60] Tan v R (2011) 35 VR 109, 120 [36] (obiter). Other offences which may be the subject of Giretti counts include money laundering: R v Beary [2004] VSCA 229; (2004) 11 VR 151, 160. See also Walsh v Tattersall (1996) 188 CLR 77, 86-7 (Dawson and Toohey JJ, citing Giretti (1986) 24 A Crim R 112 in support, alongside R v Locchi (1991) 22 NSWLR 309 and R v Hamzy (1994) 74 A Crim R 341).

[63] [2011] VSCA 79; (2011) 31 VR 367 ('Mustica') (with whom Bongiorno and Hansen JJA agreed).

[64] Ibid 374, [30]-[31]. The Court also held that it was necessary for the relevant intention to be present throughout the actus reus.

[65] (2011) 32 VR 587 ('Trajkovski').

[68] Reliance was also placed on Romero v The Queen (2011) 32 VR 486, [11] that the court will not lightly entertain a submission that could have been put, but was not put, on the plea. However, in light of the nature of the error, I consider that a failure to make the relevant submission on the plea ought not preclude Dang from relying on the submission on the appeal.

[69] The written submissions for the Crown were prepared by a different member of counsel than the senior counsel who appeared on the appeal.

Dang v The Queen [2014] VSCA 49

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Judgment (214 paragraphs)

Dang v The Queen [2014] VSCA 49 (25 March 2014)

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Legislation Cited (3)

Cases Cited (16)