R v Phan - [2020] QSC 95

[2020] QSC 95
SUPREME COURT OF QUEENSLAND
CRIMINAL JURISDICTION
BOWSKILL J
Indictment No 1671 of 2018
THE QUEEN
v
NGOC TANG PHAN
BRISBANE
THURSDAY, 30 APRIL 2020
SENTENCE
NGOC TANG PHAN, you are being sentenced today for one count of trafficking in dangerous drugs; one count of possession of a weapon; and one count of attempting to pervert the course of justice.
You pleaded guilty to each of those offences, when arraigned before me on Friday, 24 April 2020. I am taking your guilty pleas into account, in reducing the sentence which would otherwise have been imposed on you.
Given the course this matter has taken leading up to the sentencing hearing, it cannot be described as an early plea of guilty. However, it does demonstrate your willingness to facilitate the course of justice, and it is appropriate that your sentence be mitigated to some extent because of that.
As to the history of this matter: You were charged with the offence of trafficking on 6 September 2016, and initially released on bail. You were subsequently arrested on 14 December 2016, on the charge the subject of count 4, perverting the course of justice, which was committed by you in breach of bail. You have been remanded in custody since that day, a period of three years and almost five months.
The evidence in support of the charges comes in part from witnesses who were also charged with drug offending, who had undertaken to give evidence against you. Notice was given of your intention to cross-examine those witnesses at committal. There was a committal hearing scheduled for 26 June 2018, to allow for the sentences of those witnesses to have been dealt with. On the day of that committal hearing, you elected not to cross-examine them. The matter was then committed for trial to this Court, and an indictment presented in November 2019. On 7 June 2019, the matter was listed for a contested sentence (with the issues being the length of the trafficking period (noting that you contended it should be much shorter than you have now pleaded guilty to), your position in the drug hierarchy and the amount of drugs and money involved). The hearing was scheduled for three days, commencing 4 September 2019. The same four witnesses were to be called at the contested sentenced. On the first day of the hearing, your counsel indicated that you wished to proceed to trial, and the matter was adjourned.
You subsequently changed legal representatives. Ultimately, on 26 February 2020 an agreed statement of facts was settled and the matter was listed for sentence.
Negotiations between the parties did result in the trafficking period being reduced, from a period of about 4 and a half years, to a period of 2 years and about 10 months.
So, in the circumstances, as I have said, the plea cannot be regarded as early. But it may be considered timely, in the sense that it was indicated once the Crown accepted the…

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 [2020] QSC 95
Case: [2020] QSC 95
Decision Date: 30 APRIL 2020

CaseChat Overview and Summary

In the Supreme Court of Queensland, the accused, Ngoc Tang Phan, was convicted of trafficking in dangerous drugs, possession of a weapon, and attempting to pervert the course of justice. The court considered the arguments of both the Crown and the defence on the appropriate penalty for the trafficking offence, taking into account the seriousness of the offending, the maximum penalty, and the mitigating factors. The court found that a notional starting point of 22 years imprisonment was appropriate, given the scale and duration of the trafficking, and the significant harm caused by the accused's actions. The court then reduced the sentence by 4 and a half years to reflect the accused's guilty pleas and the current COVID-19 restrictions. The final sentence imposed was 17 years and 6 months imprisonment for the trafficking offence, 3 months imprisonment for the possession of a weapon, and 18 months imprisonment for attempting to pervert the course of justice, to be served concurrently. The court also made a declaration that the time the accused had already served in custody would count towards the sentence imposed.

Orders