Phan v The Queen

[2011] VSCA 254

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0274

JESSE PHAN

v

THE QUEEN

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JUDGES	NETTLE JA and WHELAN AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	25 August 2011
DATE OF JUDGMENT	25 August 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 254
JUDGMENT APPEALED FROM	DPP v Phan (Unreported, County Court of Victoria, Judge McInerney, 20 July 2010)

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CRIMINAL LAW – Sentencing – Possession of cannabis – Error in relation to one count only – Judge sentencing to term of imprisonment where maximum penalty non-custodial fine – Concession by Crown – Appeal allowed and sentence on count 4 set aside – Appellant re-sentenced on count 4 – Other individual sentences and orders for cumulation confirmed – Ludeman v R [2010] VSCA 233, [82], applied.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr M E Dempsey	Victoria Legal Aid
For the Crown	Mr S Cooper	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

1. This is an appeal against sentence.  The appellant pleaded guilty before a judge of the County Court to one count of trafficking in a drug of dependence (methylamphetamine);  one count of trafficking in a drug of dependence (cannabis);  one count of possession of a substance, material, document or equipment for trafficking in a drug of dependence;  and one count of possession of a drug of dependence.  He was sentenced as follows:

Count	Offence	Max penalty		Ind’l sentence		Cumulation
1.	Trafficking in a drug of dependence (methyl amphetamine).		15 years’ imp.	3 years 6 months	Base
2.	Trafficking in a drug of dependence (cannabis).		15 years’ imp.	3 years 6 months	6 months
3.	Possession of substance or equipment for trafficking in a drug of dependence.		10 years’ imp.	2 years	Nil
4.	Possession of a drug of dependence (10.5 grams of cannabis and not for purpose related to trafficking).		Not more than 5 penalty units.	2 months	Nil
Total Effective Sentence						4 years
Non-Parole Period						2 years 6 months

1. The sole ground of appeal, and thus the only basis on which leave to appeal has been granted, is that the sentencing judge erred in imposing a sentence of imprisonment on Count 4;  because the maximum penalty for that offence is a non-custodial penalty of five penalty units.[1]

   [1]Less than 50 grams and not for a purpose related to trafficking:  Drugs Poisons and Controlled Substances Act 1981, s 73;  and Schedule 11, Part 2, Column 4.

1. The Crown concedes the point, as it did before Maxwell P on the application for leave to appeal, and accepts that the prosecutor led the sentencing judge into error by informing his Honour, incorrectly, that the maximum penalty for the offence was 12 months’ imprisonment.  The Crown submits that the appellant should be re-sentenced on Count 4, to a fine, but that the other individual sentences and orders for cumulation should be confirmed.

1. The appellant resists that course.  He contends that the error made in relation to Count 4 re-opens the sentencing discretion generally and that this court should now re-sentence him on Counts 1, 2 and 3 to lesser individual sentences than the sentencing judge imposed.  He relies on what he says was the relatively low level of criminality associated with the offending;  the short duration of it;  the lack of sophistication associated with it it;  the low level or lack of its profitability;  and the appellant’s depleted mental state.

1. I am not persuaded by the appellant’s submissions.  If it were necessary to consider the sentences imposed on Counts 1, 2 and 3, I see no error in them or in the judge’s orders for cumulation.  To the contrary, it appears to me that his Honour’s comprehensive sentencing remarks are a clear and compelling exposition of why it was in order to impose the individual sentences on those counts and make the orders for cumulation which he did.  The sentencing remarks deal persuasively with each of the considerations now said to require that we impose lesser individual sentences.

1. More to the point, however, it follows from what was said by this court in Ludeman v R[2] that the only offence in respect of which the appellant falls to be re-sentenced in this appeal is the offence comprised in Count 4.  In the circumstances of this case, it is also clear that, if the appellant is re-sentenced on Count 4 to a fine, it will not affect the appropriateness of the individual sentences imposed on the other counts or the orders for cumulation.  Little wonder that Maxwell P observed at the time of the application for leave to appeal that, in his opinion, there was no reasonable prospect of a less severe sentence overall.  With respect, I entirely agree.

[2][2010] VSCA 233, [82]

Conclusion

1. In the result, I would allow the appeal against the sentence imposed on Count 4;  set aside the sentence passed thereon; and, in lieu thereof, re-sentence the appellant on Count 4 to a fine of 3 penalty units.  For the avoidance of doubt, I would also otherwise confirm the individual sentences and orders for cumulation passed and made below.  

WHELAN AJA:

1. I agree.

NETTLE JA:

1. The orders of the Court are:

1.        The appeal is allowed.

2.The sentence imposed on Count 4 is set aside.  In lieu thereof the appellant is re-sentenced on Count 4 to a fine of three penalty units.

3.The individual sentences and orders for cumulation passed below are otherwise confirmed.

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