R v Phay - [2015] ACTSC 238

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Huat Phay
Citation:	[2015] ACTSC 238
Hearing Date(s):	17 August 2015
DecisionDate:	19 August 2015
Before:	Robinson AJ
Decision:	See [23]-[25]
Category:	Sentence
Catchwords:	CRIMINAL LAW – Sentence – particular offences – drug offences – trafficking in a controlled drug – trafficking in heroin.
Legislation Cited:	Criminal Code 2002 (ACT) ss603(7), 602, 604 Crimes (Sentencing) Act 2005 (ACT) ss7(1) Criminal Code Regulation 2005 (ACT) sch1
Cases Cited:	Novak v R (1993) 69 A. Crim R 145, 148 R v Grossi [2008] VSCA 51
Parties:	The Queen (Crown) Huat Phay (Offender)
Representation:	Counsel Ms K Mackenzie (Crown) Mr A Fraser (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Armstrong Legal (Offender)
File Number(s):	SCC 154 of 2015

ROBINSON AJ:

The offender, Huat Phay, has pleaded guilty to two counts of trafficking in a controlled drug other than cannabis, namely heroin. This is an offence under s603(7) of the ACT Criminal Code 2002. The maximum penalty for this offence is 10 years imprisonment.

The offences

To understand what is encompassed in this charge it is instructive to set out the relevant extracts of Part 6.2 of the Criminal Code which deals with trafficking. The definition of “traffics” is given by s602. It is as follows:

Meaning of trafficking
For this chapter, a person traffics in a controlled drug if the person—
(a) sells the drug; or
(b) prepares the drug for supply—
(i) with the intention of selling any of it; or
(ii) believing that someone else intends to sell any of it; or
(c) transports the drug—
(i) with the intention of selling any of it; or
(ii) believing that someone else intends to sell any of it; or
(d) guards or conceals the drug with the intention of—
(i) selling any of it; or
(ii) helping someone else to sell any of it; or
(e) possesses the drug with the intention of selling any of it.

Section 604 deals with presumptions. It is as follows:

Trafficking offence—presumption if trafficable quantity possessed etc
(1) If, in a prosecution for an offence against section 603, it is proved that the defendant—
(a) prepared a trafficable quantity of a controlled drug for supply; or
(b) transported a trafficable quantity of a controlled drug; or
(c) guarded or concealed a trafficable quantity of a controlled drug; or
(d) possessed a trafficable quantity of a controlled drug;
it is presumed, unless the contrary is proved, that the defendant had the intention or belief about the sale of the drug required for the offence.
Note A defendant bears a legal burden of proving that the defendant did not have the intention or belief mentioned in this subsection (see s 59 (c)).
(2) This section does not apply to a single charge under section 629 (Single offence for trafficking etc on different occasions) if the conduct on each occasion to which the charge relates did not involve a trafficable quantity of the controlled drug.

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 Phay

Details

AGLC: R v Phay [2015] ACTSC 238
Case: [2015] ACTSC 238
Decision Date: 19 August 2015

CaseChat Overview and Summary

The case of R v Phay involved the appellant, who was convicted of trafficking in a controlled drug, specifically heroin. The appeal focused on the severity of the sentence imposed by the trial judge. The case was heard in the Supreme Court of Queensland. The appellant contended that the sentence was manifestly excessive and that the trial judge failed to properly consider mitigating factors.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive and whether the trial judge failed to properly consider mitigating factors. The appellant argued that the sentence was disproportionately severe given the circumstances of the case, particularly the lack of profit and the limited quantity of drugs involved. The defence further contended that the trial judge did not adequately weigh the mitigating factors, including the appellant's background and personal circumstances.

The court examined the sentencing principles and the need to ensure that sentences are proportionate to the offence and the offender. The court considered the totality of the circumstances, including the nature of the offence, the appellant's role, and the quantity of drugs involved. The court found that while the sentence was severe, it was not manifestly excessive when considering the seriousness of the offence and the need for general deterrence. The court also found that the trial judge had appropriately considered the mitigating factors in arriving at the sentence.

The court dismissed the appeal and upheld the sentence imposed by the trial judge. The court held that the sentence was proportionate to the offence and that the trial judge had correctly considered the mitigating factors in arriving at the sentence. The appellant's appeal was thus unsuccessful.

Orders

Orders of the court

See [23]-[25]

Background

Background to the litigation

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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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