R v Ta - [2018] QCA 342

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ta [2018] QCA 342

PARTIES:

R
v
TA, Cong Khanh
(applicant)

FILE NO/S:

CA No 157 of 2018
SC No 715 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 14 May 2018 (Boddice J)

DELIVERED ON:

7 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

13 November 2018

JUDGES:

Morrison and Philippides JJA and Crow J

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to possessing the dangerous drug, cocaine, in excess of 200 grams (count 1), possessing the dangerous drug, cannabis, in excess of 500 grams (count 2), possessing a thing for use in connection with possessing a dangerous drug (count 3), possessing the dangerous drug, methylamphetamine, in excess of 200 grams (count 4) – where the applicant was sentenced to seven years imprisonment for count 1, eight years imprisonment for count 2, four years imprisonment for count 3 and 11 years imprisonment for count 4, to be served concurrently with parole eligibility date set at four years from date of sentence – where the sentencing judge had regard to the fact that the applicant was a user of drugs but not addicted and that he was engaged in the commercial possession of large quantities of drugs for profit – where the applicant seeks leave to appeal against his sentence on the basis that the sentence imposed was manifestly excessive – whether in all the circumstances the sentence imposed was manifestly excessive to warrant the re-exercise of the sentencing discretion

Corrective Services Act 2006 (Qld), s 182
Penalties and Sentences Act 1992 (Qld), s 161A

R v Cooney[2004] QCA 244, considered
R v Duong (2015) 255 A Crim R 57; [2015] QCA 170, considered
R v Gordon[2016] QCA 10, distinguished
R v Luu[2018] QCA 281, distinguished
R v Oliver[2007] QCA 361, considered
R v Richards[2017] QCA 299, distinguished
R v Tran[2014] QCA 90, considered
R v Tran; Ex parte Attorney-General (Qld)[2018] QCA 22, considered
R v Truong[1997] QCA 49, considered
R v Van Huynh[2003] QCA 371, considered

COUNSEL:

A J Kimmins for the applicant
C N Marco for the respondent

SOLICITORS:

Lawler Magill for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: The applicant pleaded guilty and was convicted of the following offences:
Count 1 - possessing the dangerous drug, cocaine, in excess of 200 grams;
Count 2 - possessing the dangerous drug, cannabis, in excess of 500 grams;
Count 3 - possessing a thing for use in connection with possessing a dangerous drug, namely a cutting agent and digital scales; and
Count 4 - possessing the dangerous drug, methylamphetamine, in excess of 200 grams.
The applicant was sentenced to 11 years…

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 Ta

Details

AGLC: R v Ta [2018] QCA 342
Case: [2018] QCA 342
Decision Date: 7 December 2018

CaseChat Overview and Summary

In this case, the applicant, who had pleaded guilty to possessing various dangerous drugs in significant quantities, sought leave to appeal against the sentence imposed by the court. The applicant was convicted of possessing cocaine, cannabis, methylamphetamine, and a related object for use in connection with drug possession. The court sentenced the applicant to concurrent terms of imprisonment for each offence, with a total of 26 years, and set a parole eligibility date of four years from the date of sentencing. The applicant contended that the sentence was manifestly excessive and sought leave to appeal. The legal issue before the court was whether the sentence imposed was manifestly excessive to warrant the re-exercise of the sentencing discretion. In determining the issue, the court considered the authorities of R v Oliver, R v Van Huynh, and R v Truong, which indicated that the sentence was within the proper exercise of the sentencing discretion. The court also considered the circumstances of the applicant's offending, including the large quantities of drugs possessed and the commercial nature of the offending. The court found that the sentence imposed was not manifestly excessive and that the sentencing judge had exercised their discretion properly. The application for leave to appeal against the sentence was refused.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

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

The respondent referred to the authorities of R v Oliver,[9] R v Van Huynh[10] and R v Truong[11] as indicating that the sentence was within the proper exercise of the sentencing discretion.[9][2007] QCA 361.[10][2003] QCA 371.[11][1997] QCA 49.Consideration In relation to the applicant’s failure to identify for whom he held the cocaine, the sentencing judge remarked, during submissions, that such a failure was not to be approached by penalising the applicant, but rather the applicant did not gain the benefit of remorse or cooperation that disclosing the names would have attracted. That is an entirely correct approach. In the decision of Cooney, a sentence of eight and a half years imprisonment was imposed with release after three and a half years. This involved an offender who was found in possession of 900.39 grams of substance, containing 641.077 grams of pure cocaine. This is distinguishable from the present case as it was a courier case where the offender was a small scale drug addicted courier who undertook the transportation of cocaine to meet a drug debt. Truong is also a courier case. In Duong, a sentence of nine years imprisonment was imposed on an offender convicted after a trial of having possessed and intending to supply 393.891 grams of substance, of which 204.391 grams was pure methylamphetamine. No parole eligibility was fixed in circumstances where the offender gave evidence that had been dishonest, demonstrating a lack of remorse and dubious prospects for rehabilitation. Duong was storing drugs to deliver to others, which may be seen as akin to the applicant’s possession of the cocaine in the present case. While Duong did not have the benefit of a plea, his offending involved possession of a considerably lesser quantity of methylamphetamine (approximately 204 grams of pure methylamphetamine compared with the applicant’s possession of 757 grams of pure methylamphetamine) and in terms of value, Duong had $80,000 worth of wholesale methylamphetamine, whereas the applicant had between $206,480 and $999,200 in wholesale value. The applicant’s offending also extended to possession of large quantities of other drugs and occurred in breach of a court order. The respondent’s submission that Duong’s case supports a sentence of 11 years is well made. In Tran, the applicant pleaded guilty to a number of possession offences which arose in two distinct periods some three years apart (including possession of 559.767 grams containing 83 grams of pure heroin, 280.872 grams containing 125 grams of pure methylamphetamine and 131.755 grams of pure methylamphetamine, amongst other drugs and quantities). He had an extensive criminal history involving previous drug offences, including a supplying offence for which he had previously spent time in custody. He was also on parole when he committed the first set of offences and was later on bail when he committed further offences. While he failed to appear and a warrant was issued and remained outstanding for some two and a half months, he ultimately pleaded guilty to all charges and he had served some time in custody that could not be declared. Cumulative sentences were imposed in respect of the two distinct periods of offending, resulting in an effective sentence of 11 years and three months with parole eligibility after approximately five and a half years. On appeal, this Court interfered only to impose parole eligibility after about four and a half years. Tran possessed less than a quarter of the amount of methylamphetamine that the applicant possessed and Tran did so because he was a long term drug addict and engaged in the commercial possession to feed his habit. Tran is not of assistance as a comparable case. It does not suggest that the sentencing judge’s sentence of 11 years was excessive. Rather to the contrary, particularly given that the applicant had a vastly greater sum of dangerous drugs and had them for commercial purposes unrelated to any personal addiction but rather for commercial profit, Tran supports the sentence imposed as within the proper exercise of the sentencing discretion.

CITATION:	R v Ta [2018] QCA 342
PARTIES:	R v TA, Cong Khanh (applicant)
FILE NO/S:	CA No 157 of 2018 SC No 715 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 14 May 2018 (Boddice J)
DELIVERED ON:	7 December 2018
DELIVERED AT:	Brisbane
HEARING DATE:	13 November 2018
JUDGES:	Morrison and Philippides JJA and Crow J
ORDER:	The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to possessing the dangerous drug, cocaine, in excess of 200 grams (count 1), possessing the dangerous drug, cannabis, in excess of 500 grams (count 2), possessing a thing for use in connection with possessing a dangerous drug (count 3), possessing the dangerous drug, methylamphetamine, in excess of 200 grams (count 4) – where the applicant was sentenced to seven years imprisonment for count 1, eight years imprisonment for count 2, four years imprisonment for count 3 and 11 years imprisonment for count 4, to be served concurrently with parole eligibility date set at four years from date of sentence – where the sentencing judge had regard to the fact that the applicant was a user of drugs but not addicted and that he was engaged in the commercial possession of large quantities of drugs for profit – where the applicant seeks leave to appeal against his sentence on the basis that the sentence imposed was manifestly excessive – whether in all the circumstances the sentence imposed was manifestly excessive to warrant the re-exercise of the sentencing discretion Corrective Services Act 2006 (Qld), s 182 Penalties and Sentences Act 1992 (Qld), s 161A R v Cooney[2004] QCA 244, considered R v Duong (2015) 255 A Crim R 57; [2015] QCA 170, considered R v Gordon[2016] QCA 10, distinguished R v Luu[2018] QCA 281, distinguished R v Oliver[2007] QCA 361, considered R v Richards[2017] QCA 299, distinguished R v Tran[2014] QCA 90, considered R v Tran; Ex parte Attorney-General (Qld)[2018] QCA 22, considered R v Truong[1997] QCA 49, considered R v Van Huynh[2003] QCA 371, considered
COUNSEL:	A J Kimmins for the applicant C N Marco for the respondent
SOLICITORS:	Lawler Magill for the applicant Director of Public Prosecutions (Queensland) for the respondent