R v Chen - [2007] QSC 380

SUPREME COURT OF QUEENSLAND

CITATION: R v Chen [2007] QSC 380
PARTIES: R
v
CHEN, Ivan
(defendant)
FILE NO/S: BS 481 of 2006
DIVISION: Trial Division
PROCEEDING: Sentence
ORIGINATING
COURT: Supreme Court at Brisbane
DELIVERED ON: 14 December 2007
DELIVERED AT: Brisbane
HEARING DATE: 6 December 2007
JUDGE: Martin J
ORDER: 1. On count 1, sentence the defendant to 14 years
imprisonment
2. On counts 2 and 8, sentence the defendant to 4 years
imprisonment
3. On counts 3 and 9, sentence the defendant to 4 years
imprisonment
4. On counts 4 and 10, sentence the defendant to 2 years
imprisonment
5. On count 5, sentence the defendant to 2 years
imprisonment
6. On counts 6 and 11, sentence the defendant to 6 months
imprisonment
7. On count 12, sentence the defendant to 4 years
imprisonment
8. The sentences imposed on counts 2, 3, 4, 5, 6, 8, 9, 10, 11
and 12 to be served concurrently with the sentence
imposed on count 1
9. On count 7, sentence the defendant to 2 years
imprisonment, with such sentence to be served
cumulatively upon the other sentences
10. That 1,172 days of pre-sentence custody be declared as
imprisonment already served pursuant to s 159A of the
Penalties and Sentences Act 1992 (Qld), with such
declaration relating only to the imprisonment imposed
with respect to the trafficking charge (count 1)
11. Declare that the defendant is a serious violent offender
CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – where defendant convicted on own plea of guilty of 1 count of trafficking, 9 counts of possession of various drugs, one count of possessing property obtained from trafficking and one count of attempting to pervert the course of justice – sentence appropriate for such charges – application of the totality principle – whether penalty for attempting to pervert the course of justice should be served cumulatively
R v Bradforth [2003] QCA 183, cited
R v Dent [2002] QCA 247, cited
R v George [2001] QCA 135, cited
R v Harris-Davies [2007] QCA 164, applied
R v Matasaru [2000] QCA 246, cited
R v O’Grady, unreported, CA No 185 of 1996, 11 July 1996,
Court of Appeal, Williams, Ambrose and Bryne JJ,
considered
R v Raciti [2004] QCA 359, cited
R v Tran [2006] QCA 174, cited
R v Truong [2001] QCA 98, cited
R v Waterreus [1998] QCA 90, cited
COUNSEL: M B Lehane for the Crown
N J Macgroarty for the defendant
SOLICITORS: Director of Public Prosecutions (Queensland) for the Crown
Nyst Lawyers for the defendant

MARTIN J: On 6 December 2007 Ivan Chen pleaded guilty to:

• one count of trafficking in dangerous drugs;
• two counts of possession of a dangerous drug (heroin);
• two counts of possession of a dangerous drug (cocaine);
•

two counts of possession of a dangerous drug (3,4-
methylenedioxymethamphetamine);

• one count of possession of a dangerous drug (methylamphetamine);

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 Chen

Details

AGLC: R v Chen [2007] QSC 380
Case: [2007] QSC 380
Decision Date: 14 December 2007

CaseChat Overview and Summary

In the case of R v Chen, the defendant was convicted on his own plea of guilty of one count of trafficking, nine counts of possession of various drugs, one count of possessing property obtained from trafficking, and one count of attempting to pervert the course of justice. The court was tasked with determining the appropriate sentence for these charges, taking into account the totality principle and whether the penalty for attempting to pervert the course of justice should be served cumulatively. The defendant argued that his plea of guilty should be regarded as early, a contention disputed by the Crown. The court considered the circumstances leading to the plea, including issues such as the ill health of the magistrate, the transfer of the defendant to Woodford, and the translation of intercepts, ultimately finding that the plea should indeed be considered early.

The court acknowledged the severity of the charges, particularly the large-scale drug trafficking operation conducted by the defendant. It considered the substantial amount of drugs involved and the significant turnover of the enterprise, which allowed the defendant to possess approximately $273,000 at the time of his arrest. Despite the defendant's argument that his activities were partly driven by his addiction, the court found that the operation was much larger than merely obtaining drugs for personal use. The court found the defendant's culpability to be significant, and the severity of the operation warranted a substantial sentence.

In arriving at the sentence, the court applied the totality principle and imposed a total sentence of 14 years imprisonment for the trafficking charge, with various concurrent and cumulative sentences for the other charges. The court also declared 1,172 days of pre-sentence custody as imprisonment already served, and declared the defendant to be a serious violent offender. The court's decision balanced the need for deterrence, denunciation, and the rehabilitation of the defendant, while also considering the totality of the charges and the defendant's culpability.

Orders

Orders of the court

1. On count 1, sentence the defendant to 14 years

imprisonment

2. On counts 2 and 8, sentence the defendant to 4 years

imprisonment

3. On counts 3 and 9, sentence the defendant to 4 years

imprisonment

4. On counts 4 and 10, sentence the defendant to 2 years

imprisonment

5. On count 5, sentence the defendant to 2 years

imprisonment

6. On counts 6 and 11, sentence the defendant to 6 months

imprisonment

7. On count 12, sentence the defendant to 4 years

imprisonment

8. The sentences imposed on counts 2, 3, 4, 5, 6, 8, 9, 10, 11

and 12 to be served concurrently with the sentence

imposed on count 1

9. On count 7, sentence the defendant to 2 years

imprisonment, with such sentence to be served

cumulatively upon the other sentences

10. That 1,172 days of pre-sentence custody be declared as

imprisonment already served pursuant to s 159A of the

Penalties and Sentences Act 1992 (Qld), with such

declaration relating only to the imprisonment imposed

with respect to the trafficking charge (count 1)

11. Declare that the defendant is a serious violent offender

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

It was submitted on behalf of the Crown that notwithstanding that the defendant did plead guilty to these charges the plea should not be regarded as being particularly early. That was disputed by Mr Macgroarty. He drew my attention to the problems which had occurred during the committal due to the ill health of the magistrate hearing the matter, with the transfer of his client to Woodford (which led to substantial limitations on obtaining instructions), and the difficulties caused by having to translate many of the intercepts as a number of them were in the Taiwanese language. At the conclusion of the committal, the defendant’s lawyers sought a sentencing range from the Crown and there was a dispute between the two sides as to certain facts which related to the plea being heard in this Court. Eventually, the disputes were resolved and the resolution of all of those disputes was in the defendant’s favour. I accept that in the circumstances leading to the plea of guilty in this case it should be regarded as an early plea. I regard it as having been the subject of discussion between the Crown and the defendant’s solicitors since at least the end of the committal hearing and while, obviously, it was not as early as it could possibly be, it is sufficient for me to properly allow a discount on the sentence that might otherwise be imposed. Sentencing considerations Mr Macgroarty accepted, quite properly, that this “is a very serious case of trafficking in drugs” and that his client was “clearly significantly culpable in that regard”. The amount of schedule 1 drugs involved in the trafficking was clearly substantial. It is impossible to place a useful estimate on the amount of drugs which were obtained and distributed in south-east Queensland by the syndicate controlled by Chen. The amount of nearly $2.2 million which was deposited into his accounts over a 19 month period gives a sufficient indication of the size of the enterprise which he was conducting. Further, I have considered the sample of transcripts of intercepted telephone calls and regard them as providing a very clear indication of the size and scope of the operation. Notwithstanding that it appears that Chen has not accumulated any significant assets, it is clear that the well organised, broadly based enterprise which he conducted, had a significant turnover which allowed him, at the time of his arrest, to be in possession of approximately $273,000. Further, he had sufficient cash to pay $40,000 to associates in an attempt to pervert the course of justice. The case put forward on behalf of Chen was that his activity could be ascribed, in a large part, to the fact that he was an addict and that he was able to obtain heroin to feed his addiction through this enterprise. While I accept that he was, at the relevant time, an addict, this is not the sort of case, though, where a person trades in dangerous drugs simply for the purpose of obtaining drugs for himself. This was much larger than that. The remarks of Byrne J (as he then was) in R v O’Grady (unreported, CA No 185 of 1996, 11 July 1996, Court of Appeal, Williams, Ambrose and Bryne JJ) are apposite: “It was contended on his behalf that he resorted to heroin for pain relief. It was said that he distributed heroin to get heroin for personal consumption for pain relief. Although his use of heroin may have been a response to pain, it was plainly the exercise of a deliberate choice, conduct of an addict.”

CITATION:	R v Chen [2007] QSC 380
PARTIES:	R v CHEN, Ivan (defendant)
FILE NO/S:	BS 481 of 2006
DIVISION:	Trial Division
PROCEEDING:	Sentence
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	14 December 2007
DELIVERED AT:	Brisbane
HEARING DATE:	6 December 2007
JUDGE:	Martin J
ORDER:	1. On count 1, sentence the defendant to 14 years imprisonment 2. On counts 2 and 8, sentence the defendant to 4 years imprisonment 3. On counts 3 and 9, sentence the defendant to 4 years imprisonment 4. On counts 4 and 10, sentence the defendant to 2 years imprisonment 5. On count 5, sentence the defendant to 2 years imprisonment 6. On counts 6 and 11, sentence the defendant to 6 months imprisonment 7. On count 12, sentence the defendant to 4 years imprisonment 8. The sentences imposed on counts 2, 3, 4, 5, 6, 8, 9, 10, 11 and 12 to be served concurrently with the sentence imposed on count 1 9. On count 7, sentence the defendant to 2 years imprisonment, with such sentence to be served cumulatively upon the other sentences 10. That 1,172 days of pre-sentence custody be declared as imprisonment already served pursuant to s 159A of the *Penalties and Sentences Act 1992* (Qld), with such declaration relating only to the imprisonment imposed with respect to the trafficking charge (count 1) 11. Declare that the defendant is a serious violent offender
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – where defendant convicted on own plea of guilty of 1 count of trafficking, 9 counts of possession of various drugs, one count of possessing property obtained from trafficking and one count of attempting to pervert the course of justice – sentence appropriate for such charges – application of the totality principle – whether penalty for attempting to pervert the course of justice should be served cumulatively
R v Bradforth [2003] QCA 183, cited R v Dent [2002] QCA 247, cited R v George [2001] QCA 135, cited R v Harris-Davies [2007] QCA 164, applied R v Matasaru [2000] QCA 246, cited R v O’Grady, unreported, CA No 185 of 1996, 11 July 1996, Court of Appeal, Williams, Ambrose and Bryne JJ, considered R v Raciti [2004] QCA 359, cited R v Tran [2006] QCA 174, cited R v Truong [2001] QCA 98, cited R v Waterreus [1998] QCA 90, cited
COUNSEL:	M B Lehane for the Crown N J Macgroarty for the defendant
SOLICITORS:	Director of Public Prosecutions (Queensland) for the Crown Nyst Lawyers for the defendant