R 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

v

PHAN, Ngoc TangApplicant

BRISBANE

TUESDAY, 4 MAY 2021

JUDGMENT

1. [1]
   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 Act 1990, and thirdly, one count of attempting to pervert the course of justice.
2. [2]
   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 acategory H weapon, and 18 months imprisonment in relation to the count of attempting to pervert the course of justice.
3. [3]
   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]

4. [4]
   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.
5. [5]
   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.
6. [6]
   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 acustomer of the present applicant. John was in business and was a customer of the applicant up until August 2015. Over that period, approximately 100 kilograms of methylamphetamine were sold for about $18.5 million as well as other drugs to John’s syndicate. It was accepted by the applicant on sentence that John was not his only customer. After August 2015 there was evidence of continued trafficking, including the interception in February 2016 of two couriers carrying two kilograms of substance containing one and a half kilograms of methylamphetamine bound for the applicant’s syndicate.
7. [7]
   The applicant was arrested on 6 September 2016. He then colluded with a man, Lowe, who made various false misrepresentations and used falsified documents in an attempt to convince police that he owned property, a boat and a trailer, which had been seized by police as proceeds of crime. This is the count against the applicant of attempting to pervert the course of justice.
8. [8]
   In Markarian v The Queen,^[5] the High Court held that sentencing was not a process whereby a judge mathematically adds and deducts periods of imprisonment, representing different components of aggravation and mitigation. However, the Court recognised that in some cases, the sentencing judge might resort to some mathematical analysis in order to expose the reasoning behind the imposition of asentence.
9. [9]
   Here, the learned sentencing judge elected to do just that. The maximum sentence on the trafficking charge was 25 years. Her Honour thought that a head sentence of 22 years was justified before mitigating circumstances were taken into account. Her Honour took into account the applicant’s guilty plea, lack of prior criminal history and the impact of COVID-19 upon the quality of the applicant’s time in custody and reduced the sentence to 17 and a half years. Her Honour also ordered the other sentences to be served concurrently.
10. [10]
    There is now no complaint about that approach. There is also no complaint that the sentence is generally manifestly excessive. The only complaint on appeal is that the two errors identified earlier have been made. That, the applicant submits, reopens the sentence and, taking into account the considerations which her Honour allegedly, erroneously did not take into account, namely the applicant desisting before arrest and questions of parity with John, the sentence should be one of 13 years imprisonment.
11. [11]
    Turning, firstly, to the alleged lack of parity with John, the ground of appeal refers to the judge:

“Erring in failing to take into account parity or similar considerations.”

12. [12]
    The ground of appeal is drawn in that way, no doubt recognising the doubts as to the scope of the “parity principle”. In Green v The Queen,^[6] the High Court identified the parity principle as an aspect of the principles of equal justice. The parity principle clearly applies not only to offenders charged with the same offence but with offences arising out of the same criminal enterprise.^[7] In R v Illin,^[8] Fraser JA, with whom Henry J agreed and Morrison JA, analysed various decisions of intermediate Courts of Appeal and concluded that, at least in Queensland, the parity principle does not extend beyond those at least participating in the common criminal enterprise.
13. [13]
    However, as observed in that case, the broader equality of justice principle might often dictate that sentences imposed upon offenders where the connection is more remote may have to be taken into account. It is not necessary here to analyse the principles. The offending of John and that of the applicant is closely enough linked, so if the applicant had a legitimate sense of grievance in relation to the disparity of the sentence imposed on him and those imposed on John, I would intervene. The applicant’s problem, in my view, is that he can have no legitimate sense of grievance.
14. [14]
    John was sentenced to six years imprisonment with parole eligibility after two years. However, John trafficked over 18 months, rather than two years and nine months. John was a customer of the applicant. The applicant was therefore, further up the supply chain than was John. The extent of John’s trafficking was less than the applicant’s. John did not attempt to pervert the course of justice. John did not commit the weapons offence.
15. [15]
    Those factors justified a significant disparity between the head sentence imposed on John and the head sentence imposed on the applicant. However, even more importantly, John cooperated with police. The sentencing judge who sentenced John mathematically quantified the discount given for his co-operation. Taking into account that discount, the disparity with the appellant’s sentence is well justified by the features I have previously mentioned.
16. [16]
    The applicant can have no legitimate sense of grievance concerning John’s sentence and that ground is not made out.
17. [17]
    The submission that the applicant should receive a discount on his sentence because he desisted in the trafficking before he was apprehended is based on R v Le; Ex parte Attorney-General (Qld).^[9] There, it was said at paragraph 29:

“Her voluntary desistence is a very rare and special feature. To my mind, it justifies a significantly lower sentence than would otherwise be appropriate. Among other matters it provides at least some foundation for a hope of rehabilitation, which does not often emerge in these cases.”

18. [18]
    There are numerous problems with the submission that the fact that the applicant desisted before arrest and that that fact was not taken into account on sentence renders the sentence vulnerable to appeal. The first problem is that the point was not raised below on the applicant’s behalf. One explanation for that: it was not thought to be significant. In R v Le, the appellant played a role in trafficking in heroin, essentially, at the direction of her mother. While the trafficking was significant, it was not in the realms of the current offending by the present applicant. A decision to stop offending after conducting a high-level wholesale business trafficking in methylamphetamine, involving a cash turnover of millions of dollars, does not lower the criminality of the applicant.
19. [19]
    Secondly, it is by no means clear that the applicant did desist. Her Honour was not asked to make any findings to that effect. In Le, the relevance of desisting was said to be to rehabilitation. Here, even after arrest, the applicant engaged in serious criminal activity in attempting to pervert the course of justice to secure for himself some of the proceeds of the offending. The second ground of complaint is not, in my view, made out. I would dismiss the application for leave to appeal.
20. [20]
    SOFRONOFF P: I agree.
21. [21]
    MULLINS JA: I agree.
22. [22]
    SOFRONOFF P: The application for leave to appeal is dismissed.