R v Luong

[2010] QCA 14

SUPREME COURT OF QUEENSLAND

CITATION:

R v Luong [2010] QCA 14

PARTIES:

R
v
LUONG, Minh Xuan
(applicant)

FILE NO/S:

CA No 267 of 2009
SC No 302 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 February 2010

DELIVERED AT:

Brisbane

HEARING DATE:

2 February 2010

JUDGES:

Keane, Muir and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted on a guilty plea of unlawful possession of heroin in a quantity exceeding two grams in contravention of s 9(b) of the Drugs Misuse Act 1986 (Qld) – where applicant sentenced to five years and six months imprisonment – where applicant had been a heroin user for about 10 years – where applicant had prior criminal history involving possession of heroin – whether sentence manifestly excessive

Drugs Misuse Act 1986 (Qld), s 9(b)(i)

R v Morrison [1999] 1 Qd R 397; [1998] QCA 162, cited
R v Phan [2008] 2 Qd R 485; [2008] QCA 258, cited

COUNSEL:

A Boe with P Morreau for the applicant
M Lehane for the respondent

SOLICITORS:

Boe Williams for the applicant
Director of Public Prosecutions for the respondent

1. KEANE JA: On 25 September 2009 the applicant was convicted on his own plea of one count of unlawful possession of the dangerous drug heroin in a quantity exceeding two grams in contravention of s 9(b) of the Drugs Misuse Act 1986 (Qld). He was sentenced to five years and six months imprisonment. A period of 195 days of pre-sentence custody was declared as time already served under this sentence. A parole eligibility date was fixed at 14 January 2011 (ie after serving 22 months of his sentence in actual custody taking into account time already served).

1. By the applicant's amended application, the applicant seeks leave to appeal against his sentence on the grounds:

"1.The sentencing judge erred in his characterisation of the applicant's antecedents;

2.The sentencing judge failed to adequately reduce the sentence having regard to s 13 of the Penalties and Sentences Act 1992;

3.The sentencing judge failed to adequately give regard to

s 9(b)(i) of the Drugs Misuse Act 1986; and

4.The sentence imposed was manifestly excessive."

1. I will discuss the arguments agitated by the applicant in support of these grounds after first summarising the circumstance of the offending, the applicant's personal circumstances and the approach of the learned sentencing judge.

The circumstances of the offending

1. On 15 November 2007 police searched the applicant's car and found five packages of white crystalline powder which proved to contain heroin.  There was a total of 139.465 grams of powder containing just under 19 grams of pure heroin.  The applicant told police that he had the heroin "on tick" and…