R v Dinh - [2019] QCA 231

[2019] QCA 231

COURT OF APPEAL

FRASER JA
McMURDO JA
HENRY J

CA No 111 of 2019
SC No 1082 of 2018

THE QUEEN

DINH, Tony Phat Applicant

BRISBANE

MONDAY, 28 OCTOBER 2019

JUDGMENT

FRASER JA: The applicant seeks leave to appeal against sentences imposed on 3 April 2019 for three counts of unlawful possession of a dangerous drug in a quantity exceeding two grams. The sentencing judge considered that the applicant’s overall criminality merited an effective sentence of six and a half years’ imprisonment, with parole eligibility after two years and eight months (being six months more than one-third of the term and seven months less than one-half of the term). The applicant had served 517 days (one year and five months), in pre-sentence custody which could not be declared to be time served under the sentence because of outstanding summary charges in the Magistrates Court. Making allowances for that period both in the term and in the period before parole eligibility, the sentencing judge imposed a head sentence on count 2 of five years imprisonment with parole eligibility on 2 June 2020 (being one year and two months after the date of sentence). The applicant was sentenced to concurrent terms of imprisonment of four years on count 1 and two years on count 3 with the same parole eligibility date.

The ground of the proposed appeal is that the sentence is manifestly excessive, “in that the applicant should have been sentenced to a substantially lesser term of imprisonment without parole or lesser penalty imposed.”

I will summarise the circumstances of the offences. On 24 May 2017, police found at an apartment occupied by the applicant and in his car a total of five clear freezer bags containing a total weight of nearly 62 grams of white powder with varying levels of purity. The powder contained a total of 28.2 grams of pure heroin (count 1). The estimated value of the drug was about $11,000. Police also found separate amounts of cash totalling about $15,000, receipts for the purchase of cosmetics worth $1,794, and a valuable watch. The applicant was arrested. He did not participate in a recorded police interview. He was released on bail on 25 May 2017.

On 2 November 2017, police found under the floor mat in the front passenger foot well in the applicant’s car a small freezer bag containing two clip-sealed bags of a white rock substance. Upon analysis, the substance was found to contain heroin, one bag having a purity of 65 per cent and the other of 21 per cent. The total calculated weight of pure heroin was 3.813 grams (count 3). The value of the drug was approximately $3,000. The applicant told the police he had never seen the white rock substance but stated that it was likely to be cocaine or heroin.

Upon a subsequent search, three clipseal bags were found secreted within a wall of the boot area. Two bags contained nearly one ounce and a third bag…

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 Dinh

Details

AGLC: R v Dinh [2019] QCA 231
Case: [2019] QCA 231
Decision Date: 28 OCTOBER 2019

CaseChat Overview and Summary

In the case of R v Dinh, the applicant, Tony Phat Dinh, appealed against the sentences imposed on him for three counts of unlawful possession of a dangerous drug in a quantity exceeding two grams. The sentences were considered by the Court of Appeal, led by Fraser JA, with the concurrence of McMurdo JA and Henry J. The applicant argued that the sentence was manifestly excessive and should have been substantially lesser. The court examined the circumstances of the offences, which involved the possession of a significant quantity of heroin and methylamphetamine, and considered the applicant’s criminal history, age, and lack of remorse.

The legal issues before the court included whether the sentence was manifestly excessive and whether the sentencing judge erred in treating the applicant’s plea of guilty as late. The court considered the principle that the just and appropriate sentence, including the proportion which the period to be served in prison bears to the whole term, is to be fixed with reference to all the circumstances of the particular case. The court noted that the applicant entered a late plea of guilty and that the Crown had prepared for a trial, which justified a delay in parole eligibility. The court also compared the sentences imposed with those in similar cases, finding them consistent with the applicant’s circumstances.

The court concluded that the sentences were not manifestly excessive, taking into account the significant quantities of drugs involved and the applicant’s lack of remorse. The court refused the application for leave to appeal, finding that the sentences were appropriate and did not represent an error in the exercise of the sentencing discretion.

Orders