Loading...
Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  •   Notable Unreported Decision

R v Phan

 

[2020] QSC 95

[2020] QSC 95

SUPREME COURT OF QUEENSLAND

CRIMINAL JURISDICTION

BOWSKILL J

Indictment No 1671 of 2018

THE QUEEN

v

NGOC TANG PHAN

BRISBANE

THURSDAY, 30 APRIL 2020

SENTENCE

NGOC TANG PHAN, you are being sentenced today for one count of trafficking in dangerous drugs; one count of possession of a weapon; and one count of attempting to pervert the course of justice.

You pleaded guilty to each of those offences, when arraigned before me on Friday, 24 April 2020.  I am taking your guilty pleas into account, in reducing the sentence which would otherwise have been imposed on you.  

Given the course this matter has taken leading up to the sentencing hearing, it cannot be described as an early plea of guilty.  However, it does demonstrate your willingness to facilitate the course of justice, and it is appropriate that your sentence be mitigated to some extent because of that.

As to the history of this matter:  You were charged with the offence of trafficking on 6 September 2016, and initially released on bail.  You were subsequently arrested on 14 December 2016, on the charge the subject of count 4, perverting the course of justice, which was committed by you in breach of bail.  You have been remanded in custody since that day, a period of three years and almost five months.

The evidence in support of the charges comes in part from witnesses who were also charged with drug offending, who had undertaken to give evidence against you.  Notice was given of your intention to cross-examine those witnesses at committal.  There was a committal hearing scheduled for 26 June 2018, to allow for the sentences of those witnesses to have been dealt with.  On the day of that committal hearing, you elected not to cross-examine them.  The matter was then committed for trial to this Court, and an indictment presented in November 2019.  On 7 June 2019, the matter was listed for a contested sentence (with the issues being the length of the trafficking period (noting that you contended it should be much shorter than you have now pleaded guilty to), your position in the drug hierarchy and the amount of drugs and money involved).  The hearing was scheduled for three days, commencing 4 September 2019.  The same four witnesses were to be called at the contested sentenced.  On the first day of the hearing, your counsel indicated that you wished to proceed to trial, and the matter was adjourned.

You subsequently changed legal representatives.  Ultimately, on 26 February 2020 an agreed statement of facts was settled and the matter was listed for sentence.

Negotiations between the parties did result in the trafficking period being reduced, from a period of about 4 and a half years, to a period of 2 years and about 10 months.

So, in the circumstances, as I have said, the plea cannot be regarded as early.  But it may be considered timely, in the sense that it was indicated once the Crown accepted the reduction in the trafficking period. 

The plea does, I accept, show that you have taken responsibility for your actions, and has saved the time and cost of a trial.  But I am not prepared to go as far as finding that the plea demonstrates remorse.  Your offending conduct, as I will shortly explain, was extremely serious, cynically commercial and profit driven.  The fact that you have been caught, and are now suffering the deprivation of your liberty and separation from your family, and will do for some years to come, is I am sure a matter of profound regret on your behalf.  Remorse is another thing entirely.

The maximum penalty for count 1, trafficking in dangerous drugs, is 25 years imprisonment.  That maximum penalty reflects the serious nature of this offence.  The reasons for that are referred to by judges of this court on a daily basis, as the community continues to battle the epidemic of drug abuse and addiction, and the crisis of physical and mental health problems, and consequential criminal offending, sometimes with fatal results, which is caused by it.  The lives destroyed by your actions, of purveying drugs like methylamphetamine, heroin, cocaine and cannabis, on such a significant scale, are unfathomable.

Offending of the kind you have committed calls for a significant deterrent penalty, for the reasons given, for example, by Keane JA in R v Kostopoulos [2007] QCA 266 at [43]:  that in the case of large scale commercial traffickers, such as you, the sanctions of the criminal law will only have the desired effect of suppressing commercially motivated crime if it is made clear to the entrepreneurs that the risks of the enterprise do not justify the rewards.

In all cases, it is the obligation of the sentencing court, in the exercise of its discretion, to impose a sentence by way of punishment that is just in all the circumstances.  Of the factors otherwise mentioned in s 9(1) of the Penalties and Sentences Act, the ones of particular importance in your case are general deterrence, denunciation and community protection.  Personal deterrence and rehabilitation remain important, but inevitably the sentence imposed on you will be a lengthy one, which it is hoped will deter you from offending in the future, and so result in your rehabilitation.  But those matters take second place, to the need to send a very clear message denouncing your offending conduct, deterring such significant criminal activity, and protecting the community.

Turning to the factual circumstances of the offending.  They are set out in an 18 page agreed statement of facts (exhibit 2), which I will summarise relatively briefly.

The trafficking period is from 30 June 2013 to 7 April 2016 – a period of two years and almost 10 months.  In that period, you trafficked extensively in methylamphetamine, heroin, cocaine and cannabis.  You were the controller of a Queensland based syndicate, sourcing drugs from interstate and overseas, for supply to other wholesalers in Queensland.

The true extent of your syndicate’s sales and profits is unknown.  What is known in this regard is on the basis of the evidence of a person called Perrett.  Perrett was himself, together with two others who worked with him, a significant trafficker in methylamphetamine.  You were Perrett’s supplier.

Perrett estimated that his syndicate received 100 kg of methylamphetamine over the course of their dealings with your syndicate, and paid your syndicate $18.5 million dollars in exchange for this methylamphetamine.

You were said to have been ordering more than 30kg of methylamphetamine, every two to three months, from either China or Sydney – charging, on average, $160,000 per kilogram (initially, $220,000, later reducing to $100,000 per kg).   You told Perrett you were making about $20,000 profit per kilogram of ice, from the product purchased from your supplier, referred to as “Uncle”, in Sydney.

According to the agreed schedule of facts, assuming your syndicate sold 30kg of methylamphetamine every three months for $160,000 per kg, you would have grossed $19.2 million per year in methylamphetamine sales alone. At $20,000 per kg profit, you would have profited $2.4 million per year in methylamphetamine sales.

Perrett was not your only customer.  There was an occasion when you told Perrett you hoped to get $5 million from an ice deal you had made with a contact in Adelaide.   On another occasion, when Perrett said he was owed about $350,000 by customers, you are said to have smirked and said you were owed about $5 million.

It is also not known how much cocaine, heroin or cannabis your syndicate sold, although there is evidence that you dealt in kilogram quantities.  There is telephone intercept evidence of one of your employees offering to sell as much as 10kg of cocaine on your behalf on one occasion, at a price of $90,000 to $100,000 per kg (although it is not known whether that particular deal eventuated); and other evidence that your syndicate at times dealt in excess of 1000 pounds of cannabis in a week.   In other evidence, you apparently told one of your employees, Lionel Nguyen that you were the number one distributor of heroin with no competition, which you sourced from Queensland and Sydney.  

In terms of the structure of your business, it is said Perrett arranged the supply of methylamphetamine directly with you (and also discussed issues with quality, price or supply with you), but you then arranged a driver or courier to deliver it, rarely doing that yourself.   You are said to have had about 12 runners.

The methylamphetamine your syndicate supplied to Perrett’s syndicate always came in distinctive packaging:  a large zip lock bag, wrapped in Vietnamese community newspaper, sprinkled with pepper, and cryo-vacuum sealed. 

You were cautious about your drug communications, speaking in code and using gestures, out of concern that police might be listening in on you.  You used multiple cars, parked in dead end streets, and required people to leave their mobile phones in their cars before speaking to you.  You also sold and used Blackberry encrypted mobile phones, which made telecommunications intercepts impossible.

You avoided speaking to people on the phone about your activities – inviting them to ask you out to dinner.  The Crown submits, and I accept, that it is apparent from the telephone intercept evidence that you were very aware of the risks you were taking, and actively took steps to avoid detection.

In the period from July 2013 to June 2014 your supplies to Perrett’s syndicate were through your employee, Thanh Binh Nguyen.   Perrett obtained methylamphetamine from Nguyen regularly, almost every day, sometimes twice a day – the most he got at one time was 10 ounces.  Nguyen used safe houses to store and deal drugs.

By August 2013, Perrett had escalated to selling more than one kilogram of methylamphetamine per week, provided by your syndicate.   Thanh Nguyen, on your behalf, continued to supply Perrett’s syndicate with 1 kg of ice per week until about June 2014 (for a price of $150,000 per kg).

You fired Nguyen in June 2014, then employed another courier who only lasted about a month, then employed Van Danh Tran.

Thanh Nguyen was sentenced on 4 September 2019 – on the basis that he trafficked for 12 months from June 2013-June 2014, acting as a courier and warehouser of drugs, as an employee of yours.   He was sentenced to 8 years imprisonment; with a significant factor being the rehabilitation he was able to show, when sentenced five years later.

In the period from June 2014 to January 2015, Perrett’s syndicate continued to be supplied with at least 1 kg of ice each week from your syndicate (at a price of $150,000 per kg).  You sometimes personally delivered the drugs, and were paid in cash. 

One of the members of Perrett’s syndicate, a person named Watt, estimated that they paid you $1.5 million for ice delivered to them by you personally, from September to November 2014 alone – three months.

In January 2015 a new person, named Johns, started to work for Perrett’s syndicate.  Johns was introduced to two new couriers working for you, who have remained unidentified.  For the next six weeks, these two men supplied a kg of methylamphetamine for $190,000 each week (sometimes coming twice a week) – on that basis, it is estimated your syndicate would have grossed at least $1.14 million from these six weeks alone.

You continued to supply methylamphetamine to Perrett’s syndicate in the period from February 2015 to August 2015, at this same level, through Van Danh Tran and other couriers – with regular, at least weekly, deliveries of a kilogram of methylamphetamine.  Perrett estimated that Van Tran delivered 24 kg of methylamphetamine to his syndicate, on your behalf.

There is further evidence that your supplies to Perrett’s syndicate were only part of your business.  Van Tran told Johns (part of Perrett’s syndicate) that he worked for T, a partner of “Uncle” – with T being identified as you.  Van Tran said he was also supplying other customers.   On one occasion Tran was heard telling Watt (another person part of Perrett’s syndicate) that he had to go to Sydney to pick up another couple of hundred kilograms of ice and bring it up over the weekend, and on another occasion, he was overheard telling Watt that, I infer your syndicate, had a pilot who brought ice into the country for you.

Van Tran was also using a safe house.  That was searched on 11 August 2015, and from a hidden cavity in the kitchen bench five heat sealed packages, each containing slightly less than 1 kg of crystalline substance, were found.  Police seized just under 4kg of substance, containing 2.854 kg of pure methylamphetamine.

Van Tranh was sentenced for trafficking on 1 February 2018 – on the basis he was a party to your trafficking, required to deliver drugs, collect money, and rent the apartment where the drugs were stored.  There was evidence that he was collecting between $100,000 and $160,000, for each one kilo package he delivered, from which he kept $1,000 as his payment.  The sentencing judge referred to him receiving $23,000 for his efforts, which is roughly consistent with Perrett’s evidence that his syndicate received 24kg of ice from Tran.  He was sentenced to 8 and a half years imprisonment.

You were the primary target of a combined police and Australian Crime Commission investigation.   Numerous phone services used by you were the subject of interception, between June 2015 and May 2016. 

Among other things, these intercepts identified another person working for you, Tran Pham.   He was stopped on 1 July 2015, in a car, in which there was hidden just under 700 grams of substance, containing just over 505 grams of pure heroin, packaged in your trademark style.  The Crown alleges Pham was couriering the heroin to Queensland for you.  You do not contend otherwise.

From about September 2015, another person, Lionel Nguyen, was working for you, having been “groomed”, or mentored by you to do so.   A number of his phone calls were intercepted.   Those conversations reveal discussions with various people about the supply of significant quantities of drugs – for example, kilogram quantities of cocaine (with the customer agreeing to buy 10 kg, but wanting a sample first).   According to Mr Nguyen, he began as your chauffer, at first, and as he started to talk to you about drugs, he began to seek out potential customers for you.

Lionel Nguyen was later charged with trafficking in multiple dangerous drugs, for 11 months, from 31 August 2015 to 25 July 2016 – on the basis that he worked for you, as a courier.  He was also charged with a further trafficking offence, having been found with just under $270,000 cash at an airport in July 2016.   He was sentenced to six years imprisonment, in circumstances where he made extensive admissions, and cooperated extensively with law enforcement authorities.

Two others who worked for you were David Nguyen and David Le.  They were under surveillance, and the car they were driving from Sydney was intercepted on 25 February 2016.  Just under 2 kg of methylamphetamine was found in the car, of which just over 1.5kg was pure methylamphetamine. They were charged with trafficking: in Mr Nguyen’s case, from November 2015 to February 2016; and in Mr Le’s case, only from January to February 2016.  Again, they were sentenced on the basis they were couriers or drug runners for you, as well as facilitating drug transactions for you.   Mr Nguyen was sentenced to seven and a half years; and Mr Le to six years.

I have mentioned these others sentences not because of reasons of parity – there is no comparison, in my view, between any of those other matters and your offending.  But rather to show the range of penalties that have been imposed on the underlings you employed.

For completeness, I note that Perrett was sentenced in February 2018 for his role as a co-director in a syndicate engaged in the wholesale distribution of methylamphetamine over an 18 month period.  Perrett provided significant cooperation, not only in respect of the case against you but also others, resulting in a very significant discount of his sentence.   Likewise, there is no question of parity with Perrett’s sentence.

Your residence at Norman Park was searched on 6 September 2016.  Among other things, a semi-automatic hand gun was found (count 3), as well as many bottles of very expensive wine, mobile phone jammers, and encrypted blackberry phones.   You were arrested later that day, at another property owned by you, at Biggera Waters.

Your declared annual income from 2007 to 2013 averaged about $200,000 each year, save for 2012 in which it was just under $980,000.  Your partner’s declared income was as high as $291,000 in 2008.  However, the agreed schedule of facts records that neither you nor your partner have at any stage held legitimate jobs that would justify such incomes.

There is also evidence of you owning multiple properties and motor vehicles and other luxury items.  One of the properties, at Biggera Waters, was purchased for $1 million in 2012. 

In 2014 you were ordered to pay $2.6 million in unpaid tax to the ATO – which is said to relate to unpaid capital gains tax.  You have since declared yourself bankrupt as a consequence.

In relation to the pervert the course of justice charge (count 4), this relates to conduct you engaged in, with another person, Lowe, after you had been charged with trafficking and been released on bail, in order to falsely lead the police to believe that Lowe was the owner of a boat and trailer the police had seized, as property purchased with money the proceeds of your crime.  This was a convoluted process, which including falsifying documents.  The maximum penalty for this offence is 7 years.

Turning to your personal circumstances.  You are currently aged 38; you were aged 31 to 34 during the trafficking period.  You have no criminal history.  You were not an addict, although it is said you did use ice and cocaine during this period.   You are said to have become involved in drug trafficking as a result of financial difficulties caused by a gambling addiction.

You were born in Vietnam, coming to Australia as a refugee at a young age.  You left school after grade 10 and worked as a mechanic.

You have a long term partner, with whom you have five children, aged 10, 11, 13, 15 and 16.   She speaks of the hardship she has experienced, since you went into custody, trying to support the family, and also of how your children have suffered from your absence.   The person responsible for that hardship is you.  And it is not a matter which can ameliorate the sentence which is otherwise appropriate:  see R v Huston [2011] QCA 350 at [47]-[55] and Markovic v R [2010] VSCA 105.  

By your criminal actions, you gave your children absolutely no thought or consideration while you were engaging in this trafficking business for almost three years; let alone the children of countless other people, to whom these vile drugs were being peddled.

Turning then to the appropriate sentence to be imposed.  I have taken some time to consider this, because of the significant disparity between the submissions on behalf of the Crown and on your behalf:  the Crown submitting the sentence should be not less than 18 years; and your counsel submitting the sentence should be not more than 10 years.

The mitigating features in your case are:  your plea of guilty; your lack of prior criminal history; and, it is submitted on your behalf, the circumstances in the short term in which you will serve your time in custody, due to the COVID-19 pandemic.  I will return to that shortly.

In relation to the trafficking offence, the scale of your drug business is appropriately described by the Crown prosecutor as staggering.  The summary set out in [16] of the Crown’s submissions is apt.  Notably, your trafficking business was characterised by the following:

  • A persistent and consistent trade in large scale, wholesale amounts of high quality drugs – over the period of almost 2 years and 10 months. 
  • You were the coordinator of this very substantial business in Queensland.
  • Your business was diversified, involving multiple schedule 1 drugs as well as cannabis.
  • A window into the scale of your business is provided by the staggering quantity of methylamphetamine you supplied to Perrett’s syndicate.  But that was only one of your customers.  And you also dealt in large wholesale quantities of heroin, cocaine and cannabis.  I accept the submission for the Crown that it is reasonable to infer, from the agreed schedule of facts, that your supplies to the Perrett syndicate were only a part of your overall business.  Indeed, the agreed facts include express statements which make that plain. 
  • Your turnover was very high, in the many millions of dollars.
  • You had reliable access to very large quantities of drugs, sourced from interstate and overseas.
  • Your business was well established and sophisticated, involving a variety of measures to avoid detection; and employing numerous others to handle the drugs and money on a day to day basis, thereby insulating yourself from the direct risk of detection. 
  • You acted commercially – you plainly knew the risks, and took steps to avoid them, and to maximise your financial gain.
  • You were driven purely and cynically by profit – there is no suggestion you were a drug dependent person – and quite frankly, nor could you have been, given the scale of the business you were overseeing.

On any view, having regard to the “major determinants” of penalty which the Court of Appeal in R v Bradforth [2003] QCA 183 at [29] identified – the type of drugs supplied; the quantity of the drugs; their value; the nature of the venture; and whether the activities are commercial or engaged in to feed a habit – your offending conduct is at an extremely high level.

I must have regard to the maximum penalty – 25 years imprisonment.  The sentence I impose on you must bear a rational relativity to that maximum.  That maximum penalty is intended for cases falling within the worst category of cases.  That does not mean a lesser penalty must be imposed, just because it is possible to think of a worse example. 

Whilst it may be possible to think of worse examples of trafficking than yours – including perhaps where there was violence involved, or where the offender had a prior criminal history – it has to be said that your offending is a very serious example of the offence of trafficking. 

Although I do not consider it was an unreasonable submission for the Crown to make, on balance, I am not persuaded that the starting point in your case is the maximum of 25 years.   In my view, the starting point, had the matter gone to a trial, is something less than that, but more than 20 years:  I proceed on the basis of a notional starting point of 22 years imprisonment.

That is supported having regard to:

  • The principle I have already referred to, of the need to impose significantly deterrent penalties for offending such as you have engaged in.   Day in and day out in this court we sentence people for trafficking in dangerous drugs of various kinds, who occupy various levels in the chain of supply of those drugs.  You were very high up on that chain.  You were turning over many millions of dollars, on the back of the destruction and despair of many within our community.  Without someone like you, there would be significantly less of these drugs available for circulation within the community.  It is appropriate and just that a severe penalty be imposed, to send a strong message of denunciation and deterrence.

And the authorities, for example:

  • The Queen v Truong and Nguyen [2001] QCA 98, in which the notional starting point for Truong was said to have been 20 years.  Truong trafficked for a shorter period (11 months), in one drug, heroin; and was said to be involved both as a wholesaler and as a street dealer.  The actual scope of his business is not entirely clear from the decision, but on any view of it, was less than in your case, having regard to the quantities said to have been supplied to the undercover police, the amounts of drugs and money found on one of the searches, and the quantity of drugs found in the garden.  Even so, Truong’s was described as a most serious case of trafficking over a lengthy period in large quantities of high grade heroin for very substantial profits.  He was 31 and had one prior conviction for possession.  He had spent 248 days in custody that could not be declared because it related to a separate charge subsequently abandoned.   In my view, a higher notional starting point is appropriate in your case, given the length of time you trafficked, the range of drugs, and the scale of your business.
  • R v Thanh Vu Le [2002] QCA 17, in which the starting point, which the Court of Appeal agreed was open, was said to be 19 years, for an offender who trafficked in heroin for only four months, effectively as the local manger (in Brisbane) for his brother’s large wholesale heroin business in Sydney.   Reference is made in that case to the defendant depositing into accounts in his brother’s name $326,000, being funds obtained from distributing heroin as a wholesaler to other wholesalers.    Clearly, the conduct involved in this case was on a much smaller scale than your enterprise, in terms of time frame, quantity and range of drugs involved, and sophistication.   He had no prior convictions.
  • R v Kostopoulos [2007] QCA 266, in which the notional starting point was said to be 18 years, for an offender described as trafficking on a “grand scale”, for a much shorter period (6 months), involving a conservative estimate of completed sales of $811,000.  He was involved in selling large numbers of ecstasy tablets, and there is a reference to selling “at least 2 kg of speed” during the period July to October 2002, and that he would have supplied a third kg, if it had not been seized by police.  The duration, quantities and estimated sales, pale in comparison to the quantities of methylamphetamine you supplied to Perrett alone.  Kostopoulos did, however, use threats of violence to recover his business debts, and had a criminal history.
  • R v Chen [2008] QCA 332, in which the starting point was said, by the court of appeal, to be “at least 18 years”.  That offender trafficked for a shorter period than you (one year and 9 months), dealing in large wholesale quantities of heroin, cocaine, ecstasy and, to a lesser extent, methylamphetamine.  As an indication of scale, there is reference to an amount of almost $2.2 million, which could only have been obtained from drug sales, passing through the offender’s hands, during the trafficking period.  That is to be contrasted with the $18.5 million which Perrett estimated his syndicate would have paid to you, for a total of 100kg of methylamphetamine, remembering that he was not your only customer.  Chen was 31 when sentenced, 26 at the time of the trafficking, and had a minor criminal history with no drug offences.  He was an addict.

In my view, taking into account those authorities, and having regard to the scale and duration of your trafficking, a notional starting point of more than 20 years, but less than the maximum penalty of 25 years, is appropriate – as I have said, that could have been 22 years.  I record that on your behalf it was submitted that the starting point would be around 18 years.  

There are two mitigating features emphasised on your behalf:  your plea of guilty, and the circumstances posed by the COVID-19 pandemic.

Since the sentence that will be imposed on you is more than 10 years imprisonment, there will be an automatic declaration that the trafficking offence is a serious violent offence, and therefore a requirement that you serve 80% of the sentence before being eligible for parole.  The court has no discretion to reduce that period to serve before parole eligibility, on account of your guilty plea.  Accordingly, it is appropriate to reduce the head sentence from that which would have been warranted, had the matter gone to trial. 

There is no mathematical precision to what that reduction should be.  By way of example:

  • In Truong – the Court of Appeal would have reduced the notional starting penalty of 20 years down to 16 years, to take account of mitigating features of a guilty plea and 248 days that could not be declared [so in effect, a reduction of about 3 years for the guilty plea];
  • In Le – the starting point of 19 years, was reduced to 14 years for the plea of guilty [so quite a substantial reduction, of five years, but in my view that offender’s conduct was far less serious than yours];
  • In Chen – the Court of Appeal would have reduced the penalty of “at least 18 years” to one of 15 years, for the plea (to which there was then added 1 year for a pervert the course of justice charge) [again, a reduction of 3 years for the guilty plea].   The sentencing judge had reduced it to 14, and added 2 for the pervert the course of justice charge. The bottom line is that Chen was sentenced to 16 years.  In my view, your sentence must be higher than that, because your offending is more serious.
  • In Kostopoulos – a reduction of about 3 years for the guilty plea of Kostopoulus (down from 18 years to 15 years) was not interfered with by the Court of Appeal (although the Court considered a reduction of 2 years, down to 16 years would have been appropriate).

On your behalf, it was submitted your guilty pleas and “subjective circumstances” would justify a reduction to 13-14 years (from a starting point of 18).  The Crown submitted the sentence would be reduced to not less than 18 years, on account of your guilty plea, from a higher starting point.

Before saying more about that, I will address the COVID-19 submissions.  On your behalf, the court is urged to discount the appropriate sentence even more substantially – in fact, by about another 4 years – because of the impact of restrictions which have recently been imposed in response to the COVID-19 pandemic.

I will deal firstly with an evidentiary issue raised at the hearing.  The Crown objected to some of the annexures to Ms Wood’s affidavit, on the grounds of relevance – principally, that it comprised material not specifically relating to Queensland’s circumstances.  In relation to those matters, I find as follows.   The Court on a sentencing hearing has a broad discretion to receive information that it considers appropriate to enable it to impose the proper sentence (see s 15(1) of the Penalties and Sentences Act).  The material annexed to Ms Wood’s affidavit which has been objected to is not tendered, or at least I do not accept it, as evidence relied upon to prove particular facts on the basis of expert opinion – as opposed to information Ms Wood says she “accessed” on the internet, which is relied on in a general sense to establish the basis for the submissions. 

I proceed on the basis the material was placed before the Court on your behalf in order to establish a number of propositions, in particular by reference to the parts extracted in Ms Wood’s affidavit, including:  that people in a closed environment, such as a prison, are likely to be more vulnerable if there is an outbreak of COVID-19, because of the confined conditions they live in; restrictions which may need to be imposed to reduce the risk of an outbreak may impact on prisoners’ mental health and well-being; as such there may be an increased need for emotional and psychological support for prisoners; and that there is some uncertainty about how long protective measures may be in place, with a vaccine not likely to be available for at least twelve months.

I am prepared to receive the information on the basis that it is provided to support those matters, but not any further or broader basis.  In particular, I do not place weight on exhibit ECW-9 (the report in relation to the prisons in England and Wales), as I am not in a position to form a view about its relevance to the Queensland situation.   The same applies, in a general sense, in relation to the report concerning New South Wales prisons.

In terms of the specific restrictions which have been imposed in Queensland prisons, the evidence (exhibit 6) is that from 27 March 2020, stage 3 restrictions were implemented, which effectively means no visitors are permitted.   There were previously higher restrictions at Wolston Correctional Centre, due to an officer testing positive.  But as there have been no other confirmed cases, Wolston has returned to stage 3.  There are also quarantine restrictions imposed when people transfer into prison, or between facilities (for example, following sentence).

As expressed in exhibit 6, the purpose of the restrictions is to protect the health and wellbeing of the prison population, by preventing the virus entering prisons.   To date, that has been successful.

It is important to observe, however, that the situation is rapidly evolving.  We are already starting to see the reduction of some restrictions in the broader community, as a result of the positive effect of control measures adopted to date.

What is emphasised on your behalf is:  the fact that, for the last month, you have been prevented from receiving the weekly visits from your family that you and they had previously enjoyed, although you do have daily phone calls with them; further, that it is not known for how long this will go on.  In addition, you instruct that you have been restricted to your unit, and that work and courses have been stopped for the time being.  And, once you are sentenced, and transferred from the remand facility, you will have to be isolated in quarantine for 14 days. 

Otherwise, I have already noted that you are 38 years of age; and there is no evidence, and no suggestion, of any medical issues which place you at any increased risk or vulnerability, in so far as this virus is concerned. 

In terms of the approach to be adopted, you have relied upon the recent sentencing decisions of this Court in R v Hanna and R v Allery.  In Hanna, the time to be served, under a two year sentence for aggravated possession of methylamphetamine, was reduced from 8 months down to 5 months, taking into account (among other things, including youth, an early plea, and that the person had not been in custody before) “some concern about what you may face in the prison system”, in terms of much greater restraints on prisoners and curtailed facilities and privileges.   In Allery, the discretion was exercised in favour of immediate parole, on a two year sentence for drug possession, including on the basis of the burdens on the prison system due to COVID-19.  

To the extent it was made, I reject the submission that Hanna supports a substantial reduction in the non-parole period in your case, in the order of 5/8ths.   As the sentencing remarks in those matters make clear there were a number of factors taken into account in the exercise of the discretion.  I would add that the approach that may be taken where a short period in actual custody may be within range are quite different from this case.

Reliance was also placed on the decision of the Court of Appeal in R v Allingham, Landsdown, Marshall and Booth [1994] QCA 433, in which it is said an approach of equating a day in watch house custody to a week of ordinary custody was sanctioned, amidst a practice of offenders serving their time in watch houses due to overcrowding.  As is made clear in R v Phillips & Woolgrove [2008] QCA 284 at [3], that was a generous approach, apparently taken to make the public aware of judicial concern about an established serious shortcoming existing in the Queensland criminal justice system, so that it might speedily be remedied by the executive.  

On your behalf, it was submitted that I should take a similar approach – to effectively equate each day you have spent in custody for the last month to five days in ordinary custody; and to equate each day for the next 18 months to 3 days in ordinary custody.  Although not ultimately relying on any precise mathematical equation, what was ultimately pressed was that the court would further reduce the appropriate sentence by about 4 years on this basis, arriving at a sentence of not more than 10 years.

I reject that submission also.  I accept that the current circumstances in which you are imprisoned, and which may continue for some period, although for how long that will be is not known, are a matter for the court to take into account, as part of the integrated process of arriving at a just sentence in all the circumstances.   But I do not accept that it is such as to justify such a significant reduction in the penalty for the serious offending you have been convicted of.  The current circumstances are not comparable to those which prompted the approach referred to in Allingham.  Whilst accepting that the temporary restriction on visiting is a matter of stress and concern for you and for your family, I do not accept that this is a factor to be given significant weight in the sentencing process.  The approach urged on your behalf would result in a sentence which is entirely disproportionate to the objective seriousness of the offending.

The restrictions have been imposed as part of the public health response in all areas of the public and private lives of all members of the Queensland (and, indeed, Australian and worldwide) community.  Many innocent and law abiding members in our community are suffering great deprivations and isolation from their families; in some cases being prevented from seeing them at all, and not knowing how long that will last.  

An offender sentenced for offending of this kind six weeks ago would not have enjoyed the benefit of an almost 4 year reduction on their sentence, and yet would be serving their time in the same circumstances as you.  An offender sentenced in another six weeks’ time may be in the same position.   Everyone who is in custody at present in Queensland is experiencing the same conditions; so this is not comparable to the cases involving offenders spending time in solitary confinement.

It is the responsibility of Corrective Services to take precautions for the health and welfare of prisoners in their custody.  The restrictive measures which have been imposed are explicable by reference to that.  I accept that it is a hardship to be prevented from receiving visits from your family for a period of time.  But ultimately, you are in prison, as a punishment for one of the most concerning offences against our criminal law.  Over the course of your sentence, there may be any number of reasons why, for management, security, health or welfare purposes, various restrictions are imposed.  

I reject, as a matter of principle, the submission that the restrictions currently in place necessitate a substantial reduction in what will otherwise be, in any event, a very long sentence.

However, I have taken the circumstances, and the speculation as to how long they will last, into account, in a general way.

In my view, the appropriate reduction of the sentence, to take account of your guilty pleas, would be a reduction of somewhere between 3 to 4 years.  Ultimately, I have decided to reduce the sentence by 4 and a half years, to 17 years and 6 months imprisonment.  I have factored the restrictive circumstances in place due to COVID-19 into account by favouring the greater reduction for the guilty plea and reducing your sentence to that extent.

An additional leniency I have afforded you is to make the sentence on count 4 – attempting to pervert the course of justice – concurrent, rather than cumulative.  It would have been open to the court to impose an additional sentence of at least 12 months’ imprisonment, cumulative upon the sentence for trafficking, because of the nature of that offence, and the fact that it was committed whilst you were on bail.  

For those reasons, you are therefore sentenced as follows:

On count 1 – trafficking – you are sentenced to 17 years and 6 months imprisonment.

On count 3 – possession of weapon – you are sentenced to 3 months imprisonment.

On count 4 – attempt to pervert the course of justice – you are sentenced to 18 months imprisonment.

All of those terms of imprisonment are to be served concurrently.

I make a declaration that the time you have served in custody from 6 September to 7 September 2016 (one day) and from 14 December 2016 to 29 April 2020 (1233 days), so a total of 1234 days, is imprisonment already served under the sentence imposed on you today.  I will sign the serious drug offence certificate, declaring that your conviction of count 1 is a conviction of a serious drug offence.

Close

Editorial Notes

  • Published Case Name:

    R v Phan

  • Shortened Case Name:

    R v Phan

  • MNC:

    [2020] QSC 95

  • Court:

    QSC

  • Judge(s):

    Bowskill J

  • Date:

    30 Apr 2020

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
Help

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.