R v Phan

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.