R v Phuong; R v Lewan - [2015] SASCFC 70

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PHUONG; R v LEWAN
[2015] SASCFC 70
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Stanley)
8 May 2015
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS
The appellants were convicted of trafficking in a controlled drug; Phuong on one count, Lewan on nine accounts. Lewan was also convicted on one count of attempted aggravated causing harm with intent to cause harm. Phuong was sentenced to two years and 10 months' imprisonment, with a non-parole period of 18 months. Lewan was sentenced to three years and four months' imprisonment in respect of the nine counts of trafficking, and 13 months' imprisonment in respect of the attempted causing harm offence. Lewan's sentences were to be served cumulatively, resulting in a total sentence of four years and five months' imprisonment, with a non-parole period of three years.
Phuong appealed on the grounds that the Judge erred in the categorisation of the offending, failure to observe and apply principles of parity, that the sentence was manifestly excessive and that the Judge erred by failing to exercise his discretion to suspend the sentence. Lewan appealed on the grounds that the sentence was manifestly excessive, and that the Judge failed to correctly apply the principles of parity.
Held (Sulan J, with Stanley J agreeing): The discrepancy between the sentences imposed on Phuong, Lewan and the other offenders demonstrated error on the part of the sentencing Judge. Disparity between sentences does not of itself mean an appeal must succeed.
Unjustifiable disparity will enliven a discretion to intervene. The appellate court will intervene to eliminate marked disparities unless there are strong countervailing considerations.
Appeals allowed on the ground of the principles of parity. In the case of Phuong, the Judge was also in error in his categorisation of the offending. Good reason does not exist to suspend Phuong's sentence. Appellants re-sentenced.
Phuong re-sentenced to three years and six months' imprisonment reduced to two years and six months' imprisonment for his guilty plea. Sentence reduced to one year and 10 months' imprisonment for time spent in custody, with a non-parole period of 12 months', commencing 30 October 2014.
Lewan's sentence of 13 months' imprisonment on attempted causing harm with intent to cause harm is not interfered with. On the nine trafficking counts Lewan is re-sentenced to four years' imprisonment, reduced to two years and 10 months' imprisonment, with a non-parole period of two years and four months' imprisonment, commencing 30 October 2014.
The Judge's forfeiture orders are re-affirmed.
Held (per Kourakis CJ dissenting):
1. The head sentence of five years imposed on Lewan…

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.

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Details

Case: [2015] SASCFC 70
Decision Date: 8 May 2015

CaseChat Overview and Summary

The matter before the Full Court of the Supreme Court of South Australia concerned appeals against sentence by the appellants, Phuong and Lewan. Phuong was convicted of one count of trafficking in a controlled drug, and Lewan was convicted of nine counts of trafficking in a controlled drug and one count of attempted aggravated causing harm with intent to cause harm. Phuong received a sentence of two years and 10 months' imprisonment with an 18-month non-parole period, while Lewan was sentenced to a total of four years and five months' imprisonment with a three-year non-parole period, with his sentences for the trafficking and causing harm offences to be served cumulatively.

The primary legal issues before the court were whether the sentences imposed on the appellants were manifestly excessive, and in Lewan's case, whether there was a lack of parity between his sentence and those of co-offenders involved in the same drug trafficking operation. The court was required to consider the appellants' roles within the drug ring, the quantity and nature of the drugs involved, and the sentencing outcomes for other individuals implicated in the operation.

The court reasoned that while the sentencing judge had correctly identified the seriousness of the offences and the need for general deterrence, the sentences imposed on both appellants were excessive. In relation to Phuong, the court found that his role as a mid-level trafficker did not warrant the sentence imposed, particularly when compared to the sentences of other offenders. For Lewan, the court determined that the cumulative nature of his sentences, combined with the length of the non-parole period, was disproportionate to his offending and the sentences given to comparable offenders. The court applied the principles of sentencing, including the need to consider the individual circumstances of the offender, the gravity of the offence, and the need for parity among co-offenders.

The Full Court allowed the appeals. Phuong's sentence was reduced to two years' imprisonment with a one-year non-parole period. Lewan's sentence was also reduced, with the court imposing a sentence of three years and four months' imprisonment for the trafficking offences and a concurrent sentence of 13 months for the attempted causing harm offence, resulting in a total sentence of three years and four months' imprisonment with a non-parole period of two years and six months.

Orders

Orders of the court

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Background

Background to the litigation

Lewan was sentenced to three years and four months’ imprisonment in respect of the nine counts of trafficking to which he pleaded guilty, and 13 months’ imprisonment in respect of the attempted causing harm offence. The sentences were to be served cumulatively, resulting in a total sentence of four years and five months’ imprisonment, with a non-parole period of three years.Background Before I deal with the grounds of appeal, it is important to understand the background and the context in which the sentences were imposed. The sentencing Judge dealt with a number of offenders, all of whom had been involved in trafficking in methylamphetamine and/or heroin. At the time of sentencing the appellants, the Judge also sentenced Krisna Keath, Minh Giac Nguyen, Quang The Tran and Angelo Borden Barcelon. Those sentenced, and a number of others, were arrested and charged with offences resulting from a police operation over a number of months, during which police conducted numerous telephone intercepts as part of the investigation of a drug ring. Central to the investigation was Krisna Keath whose telephone was intercepted over the period from 28 August 2012 to 22 October 2012. Over 1600 calls and SMS messages were intercepted and revealed communications between Keath and a number of other offenders, including the two appellants. The evidence revealed that Keath was engaged in high-volume drug dealing selling heroin and methylamphetamine to both drug users and other drug dealers on a daily basis. At the time she was offending, Keath was on bail for trafficking charges. On 29 October 2012, she had been sentenced to four years and six months’ imprisonment, with a non-parole period of three years, the sentence to commence on 18 October 2012. Keath had made arrangements with another accused, Jeremy Butler, to continue her drug trafficking business whilst she was in custody. She had contacted her customers and advised them that “Jimmy” would be taking over for her. Butler continued the business of providing drugs to Keath’s customers. Subsequently, Butler was arrested on 13 November 2012. Whilst Keath was in custody in the Adelaide Women’s Prison, she contacted another offender, Ms Wong, and put her into contact with other members of the group. Keath was subsequently charged and committed for sentence on 17 counts of trafficking in a controlled drug. Others, including the appellants, were also charged. Phuong came to the attention of police when they were monitoring communications of Lewan. Police monitored a number of conversations between Phuong and others which related to possessing and selling methylamphetamine. The prosecution alleged that Phuong was a mid-level trafficker of methylamphetamine. Phuong was committed for sentence on one count of trafficking in a controlled drug. The charge is representative of a course of conduct. Lewan came to the attention of police when they were monitoring Keath’s telephone. Lewan’s telephone was then intercepted, which revealed Lewan and a number of other accused and unknown persons were trafficking in both heroin and methylamphetamine. The evidence demonstrated that Lewan was a mid‑level drug trafficker, dealing primarily in 8-ball quantities of methylamphetamine. He was dealing between two to four 8-balls of methylamphetamine each day. When police attended at his premises on 6 November 2012, they located two plastic bags containing quantities of methylamphetamine. Three sets of digital scales were seized and analysed. All contained traces of methylamphetamine.

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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