The Queen v Phan - [2021] QCA 86

[2021] QCA 86

COURT OF APPEAL

SOFRONOFF P
MULLINS JA
DAVIS J

CA No 114 of 2020
SC No 1671 of 2018

THE QUEEN

PHAN, Ngoc Tang Applicant

BRISBANE

TUESDAY, 4 MAY 2021

JUDGMENT

DAVIS J: The applicant seeks leave to appeal against sentences imposed on him on 30th April 2020 in the Supreme Court sitting in Brisbane. He had earlier pleaded guilty to three counts being firstly, trafficking in the dangerous drugs methylamphetamine, heroin, cocaine and cannabis over a period of two years and nine months between 30 June 2013 and 7 April 2016, secondly, one count of possession of a category H weapon, an offence against the Weapons Act1990, and thirdly, one count of attempting to pervert the course of justice.
On those counts, the applicant was sentenced to 17 and a half years imprisonment on the count of trafficking, three years imprisonment in relation to the possession of a category H weapon, and 18 months imprisonment in relation to the count of attempting to pervert the course of justice.
All sentences were ordered to be served concurrently and a period of 1,234 days of pre-sentence custody was declared as time served under the sentences. The application which was filed alleged that the sentences are manifestly excessive and various particular errors were alleged. However, on the hearing of the application, those grounds were abandoned and leave was given to raise the following grounds:
1.The learned sentencing judge erred in failing to take into account the applicant’s voluntary desistance from trafficking in drugs; and
2.The learned sentencing judge erred in failing to take into account parity or similar considerations in relation to a related offender, John.[1]
[1]A pseudonym.
The applicant was the subject of extensive investigation by police before being arrested. It is often difficult, despite extensive investigation, for police to accurately define the extent of illicit drug trafficking operations. However, by any standard, the trafficking here was very serious. As already observed, the trafficking occurred over a period of two years and nine months. The trafficking was in different drugs including methylamphetamine, heroin, cocaine and cannabis. The drugs were sourced from both interstate and overseas and then supplied on to other wholesalers in Queensland.
The seriousness of trafficking is often measured, at least in part, by how far the offender is positioned up the chain of supply. Street-level dealers who themselves are addicted to drugs are often treated leniently. See, for example, R v Stamatov,[2] R v Dowel; Ex parte Attorney-General (Qld),[3] and R v Ritzau.[4] Wholesalers of large amounts of dangerous drugs are in a completely different category.
[2][2018] 2 Qd R 1.
[3][2013] QCA 8.
[4][2017] QCA 17.
The applicant’s business was a sophisticated one. There were various couriers and wholesalers utilised. John was a wholesaler, running his own syndicate. He was a customer of the present applicant. John was in business and was a customer of the applicant up until August 2015. Over that period,…

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 The Queen v Phan

Details

AGLC: The Queen v Phan [2021] QCA 86
Case: [2021] QCA 86
Decision Date: 4 MAY 2021

CaseChat Overview and Summary

In the case of The Queen v Phan, the applicant, Ngoc Tang Phan, sought leave to appeal against the sentences imposed on him following a guilty plea to drug trafficking, possession of a category H weapon, and attempting to pervert the course of justice. The Supreme Court of Queensland sentenced Phan to 17 and a half years imprisonment for drug trafficking, three years for weapon possession, and 18 months for attempting to pervert the course of justice, with all sentences to be served concurrently. Phan's appeal grounds were that the sentencing judge failed to consider his voluntary desistance from drug trafficking and the parity or similar considerations in relation to a co-offender named John. The Court of Appeal examined these grounds, finding that the sentencing judge had adequately considered the relevant factors in imposing the sentence. The appeal was dismissed, affirming the original sentence.

The legal issues addressed in this appeal focused on whether the sentencing judge erred by not considering Phan's voluntary desistance from drug trafficking before his arrest and whether there was a parity issue with the sentencing of another offender, John, who was also involved in drug trafficking but to a lesser extent. The Court of Appeal found that the sentencing judge did not err in these respects. Regarding the desistance, the Court noted that the argument was not raised at the initial sentencing and that Phan's prior high-level involvement in drug trafficking did not merit a lower sentence. As for the parity issue, the Court held that the differences in the extent and nature of the offending between Phan and John justified the disparity in their sentences.

The Court of Appeal held that the sentencing judge did not err in imposing the sentence on Phan. The Court found that the argument of voluntary desistance was not persuasive as it was not raised at the original sentencing and that Phan's high-level involvement in drug trafficking did not justify a lower sentence. The Court also found that the sentencing disparities between Phan and John were justified by the differences in their roles and conduct in the criminal activities. Consequently, the application for leave to appeal was dismissed, and the original sentence was upheld.

The final orders of the Court of Appeal were to dismiss the application for leave to appeal, thereby affirming the sentences imposed by the Supreme Court.

Orders