R v Duong

Case [2015] QCA 170

SUPREME COURT OF QUEENSLAND

CITATION:

R v Duong [2015] QCA 170

PARTIES:

R
v
DUONG, Danh Quang
(appellant/applicant)

FILE NO/S:

CA No 19 of 2015
SC No 167 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 20 January 2015 (Conviction); Unreported, 22 January 2015 (Sentence)

DELIVERED ON:

18 September 2015

DELIVERED AT:

Brisbane

HEARING DATE:

22 July 2015

JUDGES:

Fraser JA and Douglas and Flanagan JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal dismissed.

2.   Application for leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant was convicted of one count of possession of a dangerous drug in excess of 200 grams and one count of supply of a dangerous drug – where both counts on the indictment particularised the drug as methylamphetamine, a Schedule 1 dangerous drug – whether the learned trial judge should have directed the jury that the appellant had an excuse available to him under s 24 of the Criminal Code (Qld) if he established that he had a reasonable and honest, if mistaken, belief that the substance in his possession was a dangerous drug other than the methylamphetamine charged in the indictment, such as a Schedule 2 dangerous drug

CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES – IDENTITY OF PROHIBITED SUBSTANCE – GENERALLY – where the appellant was convicted of one count of possession of a dangerous drug in excess of 200 grams and one count of supply of a dangerous drug – where both counts on the indictment particularised the drug as methylamphetamine, a Schedule 1 dangerous drug – whether the particular that the dangerous drug was methylamphetamine was something “material to the charge” for the purposes of s 129(1)(d) of the Drugs Misuse Act 1986 (Qld)

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted of one count of possession of a dangerous drug in excess of 200 grams and one count of supply of a dangerous drug – where the appellant was 29 at the time of the offences and 31 years old when sentenced – where the appellant possessed and intended to supply 393.891 grams of a substance that held 204.391 grams of pure methylamphetamine, worth $80,000 wholesale – where the learned sentencing judge concluded that the amount and purity of the drug showed that the appellant was not a low level courier – where the learned sentencing judge held that the applicant knew that the substance he possessed contained methylamphetamine and was dishonest in his evidence to the contrary, reflecting on his lack of remorse and prospects for rehabilitation – where there was no suggestion or evidence that the applicant used or was…

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R v Duong [2015] QCA 170
Case
[2015] QCA 170
Decision Date

CaseChat Overview and Summary

In the case of R v Duong, the appellant contested his conviction and sentence for possession and supply of methylamphetamine, a Schedule 1 dangerous drug. The court was tasked with determining whether the trial judge should have instructed the jury that the appellant had an available excuse under section 24 of the Criminal Code if he could prove that he held a reasonable and honest, albeit mistaken, belief that the substance in his possession was a different dangerous drug. The court also considered whether the specific identification of methylamphetamine was material to the charges under section 129(1)(d) of the Drugs Misuse Act 1986. Additionally, the court reviewed the appellant's argument that his sentence was manifestly excessive.

The central legal issue was whether the trial judge was obligated to direct the jury regarding the availability of an excuse under section 24 of the Criminal Code if the appellant could demonstrate a reasonable and honest belief that the substance was not methylamphetamine. The court also examined if the particularisation of methylamphetamine was material to the charges, which would affect the application of section 24. Furthermore, the court assessed the appellant's contention that his sentence was excessively harsh, given the circumstances of the offence and his background.

The court concluded that the trial judge did not need to direct the jury on the availability of an excuse under section 24 of the Criminal Code as the appellant's belief about the substance being a different drug did not affect the charges of possession and supply of a dangerous drug. The court found that the specific identification of methylamphetamine was not material to the charges, and thus the operation of section 24 was not triggered. The court also determined that the sentence imposed was not manifestly excessive, considering the amount and purity of the drug, the appellant's dishonesty, and his criminal history.

The appeal was dismissed, and the application for leave to appeal was refused. The court upheld the conviction and sentence, finding no substantial miscarriage of justice and no grounds for interference with the sentence.

Orders

Orders of the court

1. Appeal dismissed.

2. Application for leave to appeal refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The respondent also argued that, in any event, no substantial miscarriage of justice had occurred. The appellant argued separately that the sentence imposed on him was manifestly excessive.The evidence When police searched the appellant’s vehicle on 12 March 2013 at around 1.00 pm, they located, apart from the cash and mobile phones found on him, two rectangular Tupperware containers holding a crystalline substance under the driver’s seat and three further Tupperware containers containing a similar crystalline substance in the glove box. The weight of the substance in each of the two containers found under the driver’s seat was almost exactly the same, being about 138 grams. The average purity of the methylamphetamine in the substance in each container was also very similar at about 60 per cent. Each of two of the three containers in the glove box held a substance that weighed about 55 grams and 52 grams respectively. The average purity of methylamphetamine in those containers was 34 per cent and 33 per cent. The third container in the glove box held about nine grams of substance with an average purity of methylamphetamine of 25 per cent. Each container held methylsulfonylmethane (MSM) as well as methylamphetamine. At the time of his arrest, the appellant operated a body building gym. He identified the crystalline substances to the police as “protein stuff”. He then said that they were “drugs” and asked police to pretend that they had not pulled him over and suggested that he just throw the “shit on the grass”. When taken to his residence, after his arrest, police located digital scales there, a quantity of MSM under his sink in three containers similar in size and shape to those found in the vehicle and documentation for the purchase of MSM together with $2,000 in cash in his kitchen pantry. There was evidence at the trial that MSM is commonly used as a “cutting agent” to increase the weight of drugs such as methylamphetamine. There was also evidence from a chemist that “amphetamine” would generally refer to a class of compounds which would be methylamphetamine and amphetamine and that some other compounds would have that general chemical structure. After the search of his residence, the appellant (with his lawyer) participated in a recorded interview with police. It was then that he told police officers that the drugs he had were “amphetamines”. He said that he was storing them for someone else, that he had held on to the substance for about six or seven weeks and was on his way to give it back to the man who had asked him to store it. Later he said that he assumed he was to get a payment of some sort. At the roadside, before his arrest, he told police that they were drugs and that he was about to get paid for storage of them. He gave evidence that he received the substance in two tubs that he knocked over and spilled. As a result, he repackaged the substance into the containers in which they were found by police. The respondent argued that that appeared to be inconsistent with the weights and purity of the substance found by police in the appellant’s car.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

That is not this case, however, as there was no doubt that the substance was methylamphetamine.ConsiderationDrugs Misuse Act 1986 s 129(1)(d) – “material to the charge” One issue that was raised in oral argument was whether the particular that the dangerous drug was methylamphetamine was something “material to the charge” for the purposes of s 129(1)(d). If the particular that the dangerous drug was methylamphetamine was, because of the combined effect of s 129(1)(a) and s 129(1)(b) of the Drugs Misuse Act and s 564(3) and s 565(e) of the Criminal Code, not material to the charges, then the focus would simply be on whether the appellant’s belief was that he was or was not in possession of a dangerous drug. In other words, if the particular that the substance was methylamphetamine was not material to the charges, because they were truly charges of possession and supply simply of a dangerous drug, then the appellant’s mistaken belief that the substance was some other form of dangerous drug than methylamphetamine was immaterial; the operation of s 24 of the Criminal Code would not be triggered. That argument bears the attraction of an apparent simplicity in the interpretation of s 129(1)(d) in a case like this but was specifically not advanced in the oral submissions for the respondent. It is certainly the case that possession or supply of methylamphetamine is material to the maximum potential sentence that may be imposed as compared to possession or supply of a Schedule 2 dangerous drug, but it is not obvious that it is material to the charge in this statutory context. On the approach I take to the construction of s 24 of the Criminal Code it is not necessary to decide the issue but I shall, nevertheless, say something more about the construction of s 129(1) in this context.The role of s 129(1)(b) of the Drugs Misuse Act Does s 129(1)(b) have a role to play here where the identity of the dangerous drug is proved and there is no issue about that, but the defendant gives evidence that he believed it was another dangerous drug in a category to which lesser penalties attach? One view that has been expressed is that the relationship of this provision to s 24 is unclear.[16] The learned authors go on to say:“The easiest way to reconcile the two provisions would be to read s 129(1)(b) as being subject to s 24 in cases where a mistake of fact has occurred. That would mean that an accused is entitled to any benefit in being judged as if the real state of things had been such as the accused believed them to be.”[16]Colvin, McKechnie and O’Leary, Criminal Law in Queensland and Western Australia, Cases and Commentary (LexisNexis, 7th ed, 2015) at [8.33]. Presumably, therefore, if the defendant established that his honest and reasonable belief was that the thing to which the charge related was not a dangerous drug then he should be found not guilty. Where he establishes the belief that the drug was another in the same legal category the learned authors accept that the mistaken belief would be irrelevant.[17] They go on to argue, however, that “a mistaken belief that one drug was another drug in a category with lower penalties would simply mean that the offender is liable only to the lower penalties.”[18][17]Colvin, McKechnie and O’Leary, Criminal Law in Queensland and Western Australia, Cases and Commentary fn 16 at [8.32] relying on the decision of the Western Australian Court of Criminal Appeal in Dunn v The Queen (1986) 32 A Crim R 203.[18]Colvin, McKechnie and O’Leary, Criminal Law in Queensland and Western Australia, Cases and Commentary fn 16 at [8.32].