R v Phan

Case [2008] QCA 258 5 September 2008

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Phan [2008] QCA 258

PARTIES:

R
v
PHAN, Nghia Levu Trung
(appellant)

FILE NO/S:

CA No 130 of 2008
SC No 463 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

22 August 2008

JUDGES:

Keane and Muir JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal against conviction dismissed1.

Application for leave to appeal against sentence granted2.

Appeal against sentence allowed to the extent of deleting the parole release date of 13 November 2009 and, in lieu thereof, ordering that the sentence be suspended after the appellant has served 112 days, for an operative period of three years3.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – MISDIRECTION AND NON-DIRECTION – where the appellant was convicted of one count of possessing a dangerous drug, the quantity of which exceeded 2.0 grams – where the appellant was acquitted on two further counts of possessing various items for use in connection with the commission of the crime of possessing a dangerous drug – where the drug was found in a house owned and occupied by the appellant – where the appellant gave evidence at trial that he did not know that the drug was in the house at the relevant time – where the appellant was living with his brother who was a known heroin addict – whether the learned trial judge misdirected the jury as to the proper operation of s 129(1)(c) of the Drugs Misuse Act 1986 (Qld)

CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES – POSSESSION – PRESUMPTION OF POSSESSION BY OCCUPIER – where a package containing 19.9 grams of heroin was found in a house owned and occupied by the appellant – where the appellant gave evidence at trial that he did not know that the drug was in the house at the relevant time – where the appellant was living with his brother who was a known heroin addict – whether s 129(1)(c) operates to deem the appellant to be in possession of dangerous drug found

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – where the appellant was sentenced to three years imprisonment with a parole release date set at 18 months – where it was not shown that the appellant was knowingly in the possession of any quantity of heroin – where there was no element of commerciality to the appellant's offending – where the appellant did not possess the heroin for his own personal use – whether in the circumstances the sentence imposed was manifestly excessive

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 Phan

Details

AGLC: R v Phan [2008] QCA 258
Case: [2008] QCA 258
Decision Date: 5 September 2008

CaseChat Overview and Summary

In the case of R v Phan, the appellant was convicted of possessing a dangerous drug, with the quantity exceeding 2.0 grams, but was acquitted on two further counts of possessing items for use in connection with the commission of the drug possession crime. The drug was found in a house owned and occupied by the appellant, who testified that he was unaware of the drug's presence at the relevant time. The appellant was living with his brother, a known heroin addict, which was a factor in the trial. The central legal issues in the appeal were whether the trial judge misdirected the jury on the application of section 129(1)(c) of the Drugs Misuse Act 1986 (Qld), and whether the sentence imposed was manifestly excessive.

The court examined whether section 129(1)(c) of the Drugs Misuse Act 1986 (Qld) operated to deem the appellant to be in possession of the heroin found in his home. The appellant argued that the trial judge did not properly direct the jury on the presumption of possession by an occupier, as required by the statute. The court found that the trial judge did indeed misdirect the jury by not clarifying that the appellant had the opportunity to exclude the heroin from his home, which is a critical element under section 129(1)(c). The misdirection was considered significant enough to warrant a new trial. However, the court also noted that the appellant's acquittal on two other counts, despite the same factual circumstances, suggested that the jury was capable of making nuanced distinctions in the evidence presented.

In relation to the sentence, the court considered whether it was manifestly excessive given that the appellant was not shown to be knowingly in possession of the heroin, there was no element of commerciality to his offending, and the heroin was not possessed for his own personal use. The court concluded that the three-year imprisonment sentence was not manifestly excessive, but the parole release date set at 18 months was. The parole release date was deemed to be too early given the circumstances of the case.

The appeal against the conviction was dismissed, but the application for leave to appeal against the sentence was granted. The appeal against the sentence was allowed to the extent of deleting the parole release date of 13 November 2009 and, in lieu thereof, ordering that the sentence be suspended after the appellant has served 112 days, for an operative period of three years.

Orders

Orders of the court

Appeal against conviction dismissed1.

Application for leave to appeal against sentence granted2.

Appeal against sentence allowed to the extent of deleting the parole release date of 13 November 2009 and, in lieu thereof, ordering that the sentence be suspended after the appellant has served 112 days, for an operative period of three years3.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Phan [2008] QCA 258

Most Recent Citation

R v Chinmaya [2009] QCA 227

Cases citing this decision · 5 of 5 shown

R v Atasoy
[2023] QCA 121 Para 1

…splaced by proof that the accused neither knew nor had reason to suspect that the drug was “in or on that place”.” [11][2008] 2 Qd R 485; [2008] QCA 258 (Muir JA and Douglas J agreeing). [12] R v Phan [2008] 2 Qd R 485; [23].…
Sgarlata v The State of Western Australia
[2015] WASCA 215 Para 13

…In R v Phan [2008] QCA 258; [2008] 2 Qd R 485, Keane JA (Muir JA & Douglas J agreeing) said in relation to s 9 of the Drugs Misuse Act 1986 (Qld): (a)it has long been settled that a contravention of s 9 may be established by proof that the accused is in possession of a thing that is proved to be a dangerous drug;…
R v Dinh
[2015] QSC 282 Para 9

…fact evidence is not appropriate.[12] Accordingly, my ruling is that the evidence which Dinh seeks to lead in her case is admissible. [10] R v Phan [2008] QCA 258, [12]; R v Chinmaya [2009] QCA 227 [32(b)]; Tabe v The Queen (2005) 225 CLR 418, [145]. [11] Lowery v The Queen [1974] AC 85, 102-103, followed in Winn…
R v Luong
[2010] QCA 14 Para 1

…ourt upheld a sentence of five years imprisonment for the possession of 6.077 grams of heroin. The offender in that case was also a heroin addict. [1][2008] QCA 258 esp at [33]. [2][1999] 1 Qd R 397. [3][1994] QCA 259.…
R v Chinmaya
[2009] QCA 227

…v Kitson [2008] QCA 86, cited R v Nguyen and Truong [1995] 2 Qd R 285; [1994] QCA 389, followed R v Phan [2008] 2 Qd R 485, [2008] QCA 258, cited R v Sartori [2006] QCA 284, distinguished Tabe v The Queen (2005) 225 CLR 418; [2005] HCA 59, considered COUNSEL: C Heaton for the applicant P F Rutledge for the respon…

View all 5 citing cases →

Cases cited in this decision · 7 of 7 shown

Nudd v The Queen
[2006] HCA 9

…v The Queen (2005) 79 ALJR 662; [2005] HCA 8, cited Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9, cited R v Clare [1994] 2 Qd R 619, cited R v McAnally [2001] QCA 66, considered R v Morrison [1998] QCA 162, considered R v Nguyen & Truong [1994] QCA 389, considered R v Sargent [1994] 1 Qd R 655, cited Tabe…
Tabe v The Queen
[2005] HCA 59

…389, considered R v Sargent [1994] 1 Qd R 655, cited Tabe v The Queen (2005) 225 CLR 418; [2005] HCA 59, considered TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited COUNSEL: A J Glynn SC for the appellant S G Bain for the respondent SOLICITORS: Harris Sushames for the appellant Director of Public Prosec…
Ali v The Queen
[2005] HCA 8

…cessive Drugs Misuse Act 1986 (Qld), s 9, s 129(1)(c) Ali v The Queen (2005) 79 ALJR 662; [2005] HCA 8, cited Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9, cited R v Clare [1994] 2 Qd R 619, cited R v McAnally [2001] QCA 66, considered R v Morrison [1998] QCA 162, considered R v Nguyen & Truong [1994] QCA…
TKWJ v The Queen
[2002] HCA 46

…Queen (2005) 225 CLR 418; [2005] HCA 59, considered TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited COUNSEL: A J Glynn SC for the appellant S G Bain for the respondent SOLICITORS: Harris Sushames for the appellant Director of Public Prosecutions (Queensland) for the respondent…
R v McAnally
[2001] QCA 66 Para 1

…e possession of a relatively large amount of heroin. The decisions of this Court in R v Nguyen & Truong ,[6] [6][1994] QCA 389. [7][1998] QCA 162. [8][2001] QCA 66. R v Morrison[7] and R v McAnally [8] would support a sentence in the range of five to six years imprisonment where commercial amounts of heroin simi…
R v Morrison
[1998] QCA 162 Para 1

…responsible for the possession of a relatively large amount of heroin. The decisions of this Court in R v Nguyen & Truong ,[6] [6][1994] QCA 389. [7][1998] QCA 162. [8][2001] QCA 66. R v Morrison[7] and R v McAnally [8] would support a sentence in the range of five to six years imprisonment where commercial amou…
R v Nguyen & Truong
[1994] QCA 389 Para 1

…lant was criminally responsible for the possession of a relatively large amount of heroin. The decisions of this Court in R v Nguyen & Truong ,[6] [6][1994] QCA 389. [7][1998] QCA 162. [8][2001] QCA 66. R v Morrison[7] and R v McAnally [8] would support a sentence in the range of five to six years imprisonment wh…

Legislation cited in this decision · 1

Drugs Misuse Act 1986 (Qld)
9 2 mentions (from Para 1)

CITATION:	R v Phan [2008] QCA 258
PARTIES:	R v PHAN, Nghia Levu Trung (appellant)
FILE NO/S:	CA No 130 of 2008 SC No 463 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	5 September 2008
DELIVERED AT:	Brisbane
HEARING DATE:	22 August 2008
JUDGES:	Keane and Muir JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal against conviction dismissed1. Application for leave to appeal against sentence granted2. Appeal against sentence allowed to the extent of deleting the parole release date of 13 November 2009 and, in lieu thereof, ordering that the sentence be suspended after the appellant has served 112 days, for an operative period of three years3.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – MISDIRECTION AND NON-DIRECTION – where the appellant was convicted of one count of possessing a dangerous drug, the quantity of which exceeded 2.0 grams – where the appellant was acquitted on two further counts of possessing various items for use in connection with the commission of the crime of possessing a dangerous drug – where the drug was found in a house owned and occupied by the appellant – where the appellant gave evidence at trial that he did not know that the drug was in the house at the relevant time – where the appellant was living with his brother who was a known heroin addict – whether the learned trial judge misdirected the jury as to the proper operation of s 129(1)(c) of the Drugs Misuse Act 1986 (Qld) CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES – POSSESSION – PRESUMPTION OF POSSESSION BY OCCUPIER – where a package containing 19.9 grams of heroin was found in a house owned and occupied by the appellant – where the appellant gave evidence at trial that he did not know that the drug was in the house at the relevant time – where the appellant was living with his brother who was a known heroin addict – whether s 129(1)(c) operates to deem the appellant to be in possession of dangerous drug found CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – where the appellant was sentenced to three years imprisonment with a parole release date set at 18 months – where it was not shown that the appellant was knowingly in the possession of any quantity of heroin – where there was no element of commerciality to the appellant's offending – where the appellant did not possess the heroin for his own personal use – whether in the circumstances the sentence imposed was manifestly excessive