R v Phung - [2003] VSCA 32

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 27 of 2001

THE QUEEN
	v.
XUAN CUONG PHUNG

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JUDGES:	BUCHANAN, VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 February 2003
DATE OF JUDGMENT:	15 April 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 32

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Criminal Law – Conviction – Applicant convicted of trafficking in a commercial quantity of a drug of dependence (heroin) – Meaning of “possession”, “occupied” and “control” for the purposes of s.5 of the Drugs, Poisons and Controlled Substances Act 1981 – Proviso – Conviction affirmed.

Criminal Law – Sentence – Youth – Prospects of rehabilitation – Manifest excess – Total effective sentence of ten years with a non-parole period of seven years decreased to eight years with a non-parole period of six years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P. Coghlan, Q.C., D.P.P. Ms G. Cannon	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr J.P. Dickinson	Slades and Parsons

BUCHANAN, J.A.:

I agree with Vincent, J.A. that the application for leave to appeal against conviction should be dismissed, that the application for leave to appeal against sentence should be granted, that the sentence imposed upon the applicant should be set aside and in lieu thereof the applicant should be sentenced to be imprisoned for a term of eight years with a minimum period of imprisonment of six years.

VINCENT, J.A.:

On 5 February 2001 the applicant was presented before the County Court at Melbourne, charged with trafficking in a commercial quantity of a drug of dependence (heroin) (count 1) or, alternatively, being in possession of an amount of that drug (count 2). He entered pleas of not guilty to both counts. After a trial occupying approximately one week, he was convicted on the principal count.

The central features of the background to these events need be described only briefly.

At 3.07 p.m. on Tuesday 30 March 1999, members of the Victoria Police who were engaged in surveillance duties concerned with suspected drug trafficking activities involving a number of individuals, observed the applicant leaving a block of units situated at 163 Latrobe Street, Melbourne. Unit 1 in that building had, earlier that month, been leased by a man named Chi Khan Voong (Unit 1). Once outside, the applicant joined persons who were associated with another flat in an adjoining block situated at 161 Latrobe Street (Flat 2). There was evidence that Voong knew the tenant of the second flat. The applicant was, on the following day, seen to enter Flat 2 in company with another person. Both were carrying plastic bags.

At 6.30 p.m. on Tuesday 27 April, Voong left the building at 161 Latrobe Street (presumably having been in Flat 2), carrying a black plastic shopping bag. He went to a nearby bus stop where he took a position next to a person named Giang Siang Lim. The bag was placed down between them. Lim picked it up and the two then

separated almost immediately. The Crown subsequently contended that…

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 Phung

Details

AGLC: R v Phung [2003] VSCA 32
Case: [2003] VSCA 32
Decision Date: 15 April 2003

CaseChat Overview and Summary

The respondent, Phung, was convicted by the County Court of Victoria of trafficking in a commercial quantity of a drug of dependence, specifically heroin, in contravention of s.5 of the Drugs, Poisons and Controlled Substances Act 1981. Phung appealed to the Court of Appeal against his conviction and sentence, arguing that the trial judge erred in finding that he had "possessed" the heroin within the meaning of s.5 of the Act, and that the sentence was manifestly excessive. The appeal was dismissed, but the sentence was reduced.

The primary legal issue for the court to decide was the interpretation of the terms "possession", "occupied", and "control" for the purposes of s.5 of the Drugs, Poisons and Controlled Substances Act 1981. The court had to determine whether the trial judge's interpretation of these terms was correct and whether the evidence was sufficient to support the conviction. The court also had to consider whether the sentence was manifestly excessive and whether it was appropriate to reduce the sentence.

The Court of Appeal found that the trial judge's interpretation of the terms "possession", "occupied", and "control" was correct and that the evidence was sufficient to support the conviction. The court noted that the trial judge had considered all relevant evidence and had made findings of fact that were open to him on the evidence. The court also found that the sentence was not manifestly excessive, but that it was appropriate to reduce the sentence due to the youth of the respondent and his prospects of rehabilitation. The Court of Appeal therefore affirmed the conviction but reduced the sentence to a total effective sentence of eight years with a non-parole period of six years.

Orders