R v Phung [2003] VSCA 32

2. I agree with Vincent, J.A. that the application for leave to appeal against conviction should be dismissed, that the application for leave to appeal against sentence should be granted, that the sentence imposed upon the applicant should be set aside and in lieu thereof the applicant should be sentenced to be imprisoned for a term of eight years with a minimum period of imprisonment of six years.

7. On 5 February 2001 the applicant was presented before the County Court at Melbourne, charged with trafficking in a commercial quantity of a drug of dependence (heroin) (count 1) or, alternatively, being in possession of an amount of that drug (count 2). He entered pleas of not guilty to both counts. After a trial occupying approximately one week, he was convicted on the principal count.

10. The central features of the background to these events need be described only briefly.

13. At 3.07 p.m. on Tuesday 30 March 1999, members of the Victoria Police who were engaged in surveillance duties concerned with suspected drug trafficking activities involving a number of individuals, observed the applicant leaving a block of units situated at 163 Latrobe Street, Melbourne. Unit 1 in that building had, earlier that month, been leased by a man named Chi Khan Voong (Unit 1). Once outside, the applicant joined persons who were associated with another flat in an adjoining block situated at 161 Latrobe Street (Flat 2). There was evidence that Voong knew the tenant of the second flat. The applicant was, on the following day, seen to enter Flat 2 in company with another person. Both were carrying plastic bags.

16. At 6.30 p.m. on Tuesday 27 April, Voong left the building at 161 Latrobe Street (presumably having been in Flat 2), carrying a black plastic shopping bag. He went to a nearby bus stop where he took a position next to a person named Giang Siang Lim. The bag was placed down between them. Lim picked it up and the two then

separated almost immediately. The Crown subsequently contended that the bag contained part payment for a heroin transaction conducted on the following day.

20. On Wednesday 28 April, at 10.24 a.m., Voong and the applicant left Flat 2. Voong was carrying a white plastic bag with red writing on it. A few minutes later, they met Lim at the bus stop earlier mentioned, and Voong exchanged this bag for another plastic bag brought by Lim. Shortly afterwards, the applicant and Voong returned to the building at 163 Latrobe Street with the substituted bag. Voong remained there for a brief period before he again went to Flat 2. At 10.39 a.m., the applicant also left the building and entered Flat 2. Voong finally departed a little later and went to Melbourne Airport where he boarded a flight to Perth.

23. Lim and another man, Yong Liang Low, were arrested on the same day in Darling Street, South Yarra. Lim had in his belongings a white plastic bag with red markings on it and containing $19,750. It appears to be highly likely that this was accepted by the jury to have been the bag received from Voong and the applicant earlier.

26. A search of a serviced apartment in Darling Street, South Yarra with which Lim, Yong Liang Low and, a further person, Kar Leong Low were associated, resulted in the discovery of ten blocks of white powder weighing in total 3533.4 grams and each of which contained between 71.8 and 76.7 per cent pure heroin. Also found were 18 bundles of cash amounting to $99,980 and the sum of $180,000 in cash in a carry case. Kar Leong Low was arrested in this apartment.

29. At 8.35 p.m. on 29 April the applicant was observed entering Flat 2. He was next seen, opening a glass foyer door leading to that flat using a key. He left the building and then entered the foyer area of 163 Latrobe Street. At 9.20 p.m. police members went to the door of Unit 1. They knocked. The applicant, who was the only person in the unit, responded:

"Police, we have a search warrant. Open the door."

He then attempted to escape through a rear window. Using a battering ram, the police gained entry to the unit which, they observed, had little furniture. A search of the premises revealed the presence of 23 quantities of powder with a total weight of 780.2 grams and purity ranging from 71.3 to 77.1 per cent.

38. On the floor in what has been described as the south west bedroom were an electronic scale, a cutting surface with a knife, white powder and various other items indicating heroin preparation. No attempt had been made to conceal the presence of these articles which were scattered across the floor in full view. Also found in Unit 1 were three bundles of money containing a total of $104,700 in Australian currency.

41. On being apprehended at the rear of the block of flats, the applicant was taken back to Unit 1. His wallet was located in a black and grey jacket in the lounge-room. His footwear, a pair of ankle high boots was found in the same general area. He identified as belonging to him, a black bag located in the south west bedroom and some clothing that was hanging in a wardrobe in the south-east bedroom.

44. As I understand the position adopted by the applicant before us and in the Court below, it has been accepted that he must be taken to have had knowledge that the various items found were there and that, in particular, he knew that there was heroin in the unit. Save for knowledge of its presence, he claimed to have had no involvement with any of the incriminating material discovered by the police.

47. Although he provided relatively little information when subsequently interviewed, the applicant did agree that he had been staying in Unit 1 at the time. He indicated that he was the only person residing there. It is relevant in this context to observe that his belongings were distributed throughout the premises and, as I have mentioned, there was no one else in the unit when the police sought entry.

50. After hearing a plea in mitigation of penalty, on 21 February 2001 the applicant was sentenced to imprisonment for ten years in relation to which a non-parole period of seven years was fixed by the learned sentencing judge.

53. The applicant now seeks leave to appeal against both his conviction and the sentence imposed upon him.

The application for leave to appeal against conviction

57. In support of this application, reliance has been placed on the following grounds:

1. The learned trial judge erred in his directions to the jury as to the meaning of the term "occupation".

2. The learned trial judge erred in his directions to the jury as to the meaning of the term "possession".

3. The learned trial judge erred in that he failed to direct the jury as to the meaning of the term "custody" and of the term "control".

4. The learned trial judge erred in failing to relate the law to the facts in the case.

65. It is, I consider, apparent from the incomplete and rather bland description of the evidentiary background set out above that the prosecution case against the applicant was extremely strong. In addition to evidence of his observed activities and those of others with whom he was undoubtedly connected in some type of combined activity, there was evidence which the prosecution forcefully argued enabled the inference to be drawn that he was in occupation of Unit 1 and in possession of the heroin found there.

68. In the course of delivering his charge to the jury, the learned trial judge addressed these aspects. Specifically, he instructed them in relation to the significance of a finding that the applicant was in occupation of the unit. He pointed out that included in the concept of trafficking under the Drugs, Poisons and Controlled Substances Act 1981 was the possession of a drug of dependence for sale. He then drew their attention to the relevant provision in the Act which reads:

"Section 5. Meaning of 'possession'. Without restricting the meaning of the word 'possession', any substance shall be deemed for the purposes of this Act to be in the possession of a person so long as it is upon any land or premises occupied by him or is used, enjoyed or controlled by him in any place whatsoever, unless the person satisfies the court to the contrary."

"The effect of that section is, if you are satisfied beyond reasonable doubt that the accused man occupied this apartment, that is flat 1 of 163 Latrobe Street - this apartment upon which the heroin was found - then the accused is deemed to be in possession of the substance unless he satisfies you that he was not in such possession. Whether the accused was in occupation of those premises is a question of fact solely for you. It is a question of fact. The word 'occupied' in the section has its ordinary English meaning. There may, of course, be a variety of situations of occupation. For example, each of us occupies, that is, is in occupation of our family home. If we had a holiday house we would be in occupation of that holiday house even if we went to reside in it only once a year, provided, of course, we have kept it ready to reside in whenever we pleased. It would be open to you to take the view that a person who is living in a hotel room or an apartment as his residence is in occupation of that room or apartment. If a person is left in charge of a house or an apartment by another and is residing in that house or apartment it is a matter for you, bearing in mind all the circumstances, to determine whether that person is in occupation of that house or apartment. Relevant questions might include, for example, what degree or control did that person exercise or appear to exercise in respect of that house or apartment, such as an ability to control the access of others. What was the nature and duration of his residence there? Of course in referring to "duration" I am not merely referring to duration of past residence. It may be, it is entirely a matter for the jury, that an inference could be drawn from the evidence as to whether the residence of a person at a particular place might continue beyond a particular time, albeit whether for a short period only. Of course simply visiting another person for a few hours might not, probably would not, amount to occupation. As I have said, the words 'occupied' and 'occupation', bear their ordinary English meaning. It is a question of fact for you to determine whether the accused man at the time of the entry of police into the premises occupied flat 1 of 163 Latrobe Street. If you were satisfied beyond reasonable doubt that the accused was actually in occupation of that apartment, and there may, of course, be occupation with another, then this section would come into operation and it would be for the accused to satisfy you that he was not in possession of the substance found." [1]

74. Counsel for the applicant took exception to this portion of the charge, stating:

"[I]n my submission, Your Honour, occupation is indeed as Your Honour said, a question of fact but the term does not have its ordinary English meaning. Its meaning is governed by law and I've referred Your Honour to some cases in respect of that."[2]

78. The reference by counsel to earlier discussion related to a submission made by him at the end of the Crown case that there was no case to answer. It was based, in part, upon the proposition that in order to conclude that an individual was either solely or in combination with others in occupation of property, as that term is employed in s.5, it was necessary to show that he or she had some ability to control access to it.

81. His Honour declined to give any further direction on this aspect.

84. The matter was raised again by the jury who sought "the legal definition of occupation".[3]

87. His Honour repeated the instruction earlier given, but in a shorter form.

90. Counsel for the applicant asserted before us that the word "occupation" has a number of usages and in consequence a jury would obtain little or no assistance from an instruction that directed them to ascribe to it "its ordinary English meaning". In the instant case it is possible, the argument proceeded, that the jury found that the applicant was in "occupation" of the unit merely because he was situated in it at the relevant time.

93. With respect to the term "occupy", the Privy Council stated in Madrassa Anjuman Islamia of Kholwad v. Municipal Council of Johannesburg[4]:

"The word 'occupy' is a word of uncertain meaning. Sometimes it denotes legal possession in the technical sense, as when occupation is made the test of rateability; and it is in this sense that it is said in the rating cases that the occupation of premises by a servant, if such occupation is subservient and necessary to the service, is the occupation of his master: Reg. v. Spurrell. ... At other times 'occupation' denotes nothing more than physical presence in a place for a substantial period of time, as where a person is said to occupy a seat or pew, or where a person who allows his horses or cattle to be in a field or to pass along a highway, is said to be the occupier of the field or highway for the purpose of s.68 of the Railway Clauses Act, 1845: Dawson v. Midland Ry. Co....; Luscombe v. Great Western Ry. Co.... Its precise meaning in any particular statute or document must depend on the purpose for which, and the context in which, it is used." (My emphasis.)

97. It is, at minimum, unhelpful to instruct a jury that a word in a statute is to be accorded its "ordinary English meaning", when it may be difficult to identify what that meaning might be or when the word has a number of meanings which may vary according to the context in which it is employed. However, the context in which the word "occupied" had to be considered in this matter was quite clear. His Honour emphasized that attention was being directed to the question of fact -

Was the applicant in occupation of "this apartment, that is flat 1 of 163 Latrobe Street - this apartment upon which the heroin was found?"

101. The word "occupied" in s.5 does not stand alone. It is used in conjunction with "used, enjoyed or controlled" to encompass a wide variety of factual situations. Whether an accused person's connection with premises falls within the provision is, as his Honour instructed the jury, a matter of fact. It was not, of course, to be determined by reference to indicia of occupancy applicable in other contexts. The question posed by Roskill, L.J. in R. v. Tao[5] "[W]hat is the mischief against which this section is aimed?" arises here. In that matter, it was the punishment of those who permitted the smoking of cannabis in premises under their control. His Lordship then said[6]:

"This suggests that Parliament was intending not that a legalistic meaning should be given to the phrase 'the occupier' but a common sense interpretation, that is to say 'the occupier' was to be regarded as someone who, on the facts of the particular case, could fairly be said to be 'in occupation' of the premises in question, so as to have the requisite degree of control over those premises to exclude from them those who might otherwise intend to carry on those forbidden activities I have already indicated."

There can be no doubt that the "mischief" with which the legislature was concerned included the trafficking in and possession of drugs of dependence when enacting the relevant provisions of the Drugs, Poisons and Controlled Substances Act. Accordingly, the kinds of connection with premises encompassed by s.5 must be seen to be related to and inextricably linked with the deemed possession which arises once the required occupation, use, enjoyment or control is found to exist.

106. His Honour dealt with the notion of occupation of premises in this context, making it clear, in my opinion, that the jury had to consider whether the applicant could be said to have been in practical control of the premises at the relevant time, bearing in mind that in consequence of the making of that finding (unless he satisfied the Court to the contrary) he would be deemed to be in possession of what was found there. The ability to control access would, of course, be crucial in answering this question. No reasonable jury could have been under any misapprehension on this aspect and the possibility that they may have regarded the mere presence of the applicant in the unit as sufficient is, in my view, fanciful.

109. There is, I consider, no need in the present case to attempt to do more than refer briefly to the features upon which the factual inference of occupation could arise. However the position is approached, the situation is clear. The applicant was staying in the flat at the time. He had personal belongings in both bedrooms and the lounge room. He was the only person living there. He entered the flat using a key that he had in his possession. He closed and locked the door behind him and thereby barred entry to the unit to all save those that he chose to admit or who, like the police, entered by force. The finding that he occupied the premises within the meaning of s.5 at the relevant time was, in my opinion, irresistible.

112. In any event, although his Honour's instructions were arguably not well expressed, I do not consider there is a reasonable possibility any miscarriage of justice could have occurred by reason of any perceived deficiency in them.

119. These grounds were argued together and it is appropriate to address them in the same manner.

122. After pointing out that the prosecution had argued its case that the applicant was in possession of heroin on two bases, when charging the jury his Honour stated that:

"It is necessary for me to direct you as to the relevant law relating to possession, that is the ordinary principles of common law relating to possession, apart from what might be said in the Act. The first reason is because that is the second and alternative way the Crown puts its case on this aspect against the accused man. The Crown says that even if the above section of the Act does not apply you should be satisfied beyond reasonable doubt that on the evidence the accused man was in possession of the substance according to the ordinary principles of the common law. I direct you, as a matter of law, that a person has in his possession whatever is to his own knowledge physically in his custody or under his physical control. If therefore you are satisfied beyond reasonable doubt that the accused knew that the substance was on the land and that the substance was physically in his custody or under his physical control then he was in possession of the substance according to the ordinary principles of the common law."[7]

Objection was taken to this formulation on the basis that the judge should have further instructed the jury that in addition to physical custody and the ability to exercise physical control over the heroin, the prosecution would need to establish beyond reasonable doubt that the applicant knowingly and intentionally possessed that custody or control. In other words, whilst, on the evidence before the jury, it could not be seriously disputed that the applicant must have been aware of the presence of the material, he may not have regarded himself as having it in his custody or control. Reliance was placed upon the decision of the Court of Criminal Appeal in R. v. Maio[8] where O'Bryan, J. described as being "in accordance with the law explained in He Kaw Teh v. R.[9]" the following direction with respect to possession given by the trial judge in the Court below:

"The prosecution must also satisfy you beyond reasonable doubt that if the accused did have possession of the heroin he had it intentionally, that is that he had physical custody and control intending to have it or exercise it and also that he had the knowledge that the substance was a narcotic substance, but that knowledge may be reflected in a likelihood or in an awareness of his mind that the substance was a narcotic substance."[10]

128. It is to be observed that, as O'Bryan, J. mentioned[11], only two of the members of the High Court in He Kaw Teh addressed the concept of possession. Dawson, J. stated[12]:

"For the purposes of the criminal law and for directness and simplicity it is not possible to my mind to think of a better working definition of possession than that given by Lord Diplock in Director of Public Prosecutions v. Brooks[13] where he said 'in the ordinary use of the word "possession" one has in one's possession whatever is to one's knowledge physically in one's custody or under one's physical control'."

132. A similar formulation was adopted by Brennan, J.[14]:

"On a count of possession under paragraph (c) the onus is on the prosecution to prove that an accused, at the time when he had physical custody or control of narcotic goods, knew of the existence and nature, or of the likely existence and likely nature, of the narcotic goods in question and that onus is discharged only by proof beyond a reasonable doubt."

that the possession of knowledge on the part of the applicant of both the presence of heroin and the nature of the activity being conducted in the unit was not and could hardly have been the subject of any serious dispute in the trial. The evidence was overwhelming and unchallenged that, at the time of the police raid, the drug was within the physical control and custody of the sole person present. The instructions given by his Honour, which were expressed in almost identical terms to those employed by Dawson, J. and Brennan, J. in He Kaw Teh, when considered in the context of the evidence and issues in the trial, were, in my opinion, clearly adequate. The factual situation was relatively straightforward and the matters to which the jury needed to direct attention when considering this aspect would have been apparent to them.

141. Grounds 2, 3 and 4 also must fail in my opinion.

144. It follows that I would refuse the application for leave to appeal against conviction.

Application for leave to appeal against sentence

148. In support of this application, reliance has been placed on five grounds, namely:

"1. The learned sentencing judge erred in that he gave no or insufficient weight to the principles concerned with youthful offenders. 2. The learned sentencing judge erred in giving disproportionate weight to the principle of general deterrence in the circumstances of the case. 3. The learned sentencing judge erred in his finding as to the applicant's prospects of rehabilitation. 4. The learned sentencing judge erred in concluding that the transaction of the 28th of April was an exchange of money for the heroin located in the south-west bedroom. 5. The sentence imposed is manifestly excessive."

152. His Honour was conscious of the principles applicable to the sentencing of youthful offenders, as the following passages demonstrate:

"You are, of course, to be viewed as a youthful offender, and your counsel has referred me to several authorities which are concerned with that aspect.

...

You have committed, albeit as a first offender, a most serious crime. Nevertheless, the question of rehabilitation, notwithstanding the very serious nature of your crime, must be considered. Such question is usually of particular importance in the case of a youthful first offender."[16]

156. I note that his Honour, in these passages, used very similar terms to those employed by Batt, J.A. in R. v. Mills[17] who said:

"i. [The] youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises. ii. In the case of a youthful offender rehabilitation is usually far more important than general deterrence." [My emphasis.]

It is apparent that he had these observations in mind. They had been brought to his Honour's attention in the course of the hearing and the following exchange then took place:

"HIS HONOUR: Counsel, in a case of extremely serious drug trafficking in respect of that the most serious drug one that is prevalent in the community, might it not be that general deterrence is of more importance? COUNSEL: Well, with respect, Your Honour, these principles apply across the board. HIS HONOUR: No, it doesn't say that at all. It says, 'It's usually far more important than general deterrence'. COUNSEL: Well, one has to look at the facts of each case. HIS HONOUR: Well, you just a moment ago you said that 'these principles apply across the board'. Now, in one sense, I suppose that's true, but what I'm putting is, in this particular instance, might it not be that general deterrence is of more importance than rehabilitation of a youthful offender?"[18] (My emphasis.)

As this Court also pointed out in DPP v. SJK and GAS[19] whilst the focus is usually placed upon the offender's prospects of rehabilitation when youth is raised as a sentencing consideration_:_

"[T]his is by no means the only basis upon which it assumes relevance. For at least a century, the attribution of criminal responsibility and the response in terms of the dispositions handed down upon offenders has increasingly reflected developing ideas and understandings concerning personal responsibility, moral culpability and accountability. In the case of young people, to some extent, the law incorporates an acknowledgment of aspects of immaturity. By reason of the stage of development that an offender may have reached, he or she may not fully appreciate the seriousness and real consequences of the offending actions. However, it does not follow that this is always the situation or that, as teenagers, offenders cannot be held appropriately accountable for their conduct in engaging in serious criminal activity."

Addressing these aspects, the sentencing judge in the present matter stated::

"You have, however, committed the crime of trafficking in a drug of dependence, heroin, that trafficking being in relation to a quantity not less than the applicable commercial quantity; indeed, a quantity well in excess of twice the applicable commercial quantity. I am of opinion, therefore, that general deterrence must be taken into account as the most important sentencing consideration."[20]

It is not clear to me whether his Honour in this passage was making a general statement as to the relative weighting to be given to general deterrence in all such cases or was dealing with the balance to be effected in the context of the specific case before him. References in his sentencing remarks to the judgments in R. v. Berisha[21] and R. v. Mandala[22] suggest the latter.

"This Court has for a very long time now sought to make it clear to those who import drugs into this country for sale they can expect condign punishment if they are caught running the risk. The youth of the Australian community has been ravaged by drugs and the courts must impose penalties which will have the effect of deterring all those who might be like-minded to this applicant. This Court recently expressed these views very carefully in the case of Berisha .... Speaking for myself, I am conscious of the youth of this applicant, his previous good record and the difficulties which he has clearly met in being separated from his family in this country. I am also conscious of the shame which he has clearly brought upon himself and more particularly upon his family who are obviously good people and who appear to be wholly supportive of him. All those matters were present to the mind of the trial judge who imposed sentences which could by no means be said to be outside the range for crimes of this nature.

...

For the reasons which His Honour below gave, it is not possible for this Court, or any Court in this State, except in the most exceptional circumstances, to impose other than gaol terms to be served immediately for crimes of this nature."[23]

171. As in almost every case in which the sentencing discretion is to be exercised, the judge in the present matter was concerned with the extent to which regard could be had to separate competing values, each of which possessed importance in the achievement of a just result in the particular circumstances and none of which could be excluded from consideration in that process. [24] Whilst I am not persuaded that his Honour fell into error with respect to the principles to be applied, I am left with the impression that he may nevertheless have undervalued the applicant's youth as a sentencing consideration.

174. More problematic, however, are his Honour's statements concerning the applicant's prospects of rehabilitation:

"As to rehabilitation, I am unable, on the evidence before the court, to take the view that the probability is that of rehabilitation by you. I am simply not persuaded of any such probability."[25]

Presumably this finding was related to an earlier observation in his sentencing remarks that he detected no indication of remorse. Be that as it may, it is simply not the law that an offender must establish a probability of rehabilitation before that consideration can be taken into account. There was evidence which his Honour accepted that the applicant had, during the time that he had been in custody, pursued full-time education. He was quite young (17 years at the time of the commission of the offence) and he had no prior convictions. Even in the absence of any indication of remorse, the possibility of his eventual rehabilitation, although uncertain, could not be totally omitted from consideration. Sentencing judges regularly make assessments of the relative "prospects" of rehabilitation of persons who appear before them and attribute the weight to this element that is regarded as appropriate in the circumstances. In my opinion, his Honour did fall into error when considering this element and the sentencing discretion is, accordingly, reopened.

179. For completeness, I should add that I consider that ground 4 is entirely without substance and, of course, there is no need to address the question of possible manifest excess raised by ground 5.

182. His Honour was, in my opinion, correct in adopting the view that a

substantial term of imprisonment had to be imposed upon the applicant. The offence that he committed was extremely serious.[26] The heroin found in Unit 1 had a total bulk weight of 780 grams and a high level of purity (approximately 77%). It was accepted by the sentencing judge to have a value at street level of approximately $780,000.[27] His Honour found that the applicant was motivated simply by a desire for "monetary gain". [28] Although the precise role that the applicant played could not be determined, there would seem to be little doubt that he was an active participant and entrusted with the custody of a substantial amount of drugs and money.

186. Were it not for his youth and the fact that his Honour failed to take the applicant's prospects of rehabilitation into account, no complaint about the sentence could be justifiably made.

189. I would propose, however, by reason of the presence of these factors that the sentence imposed in the Court below be set aside and in lieu thereof the applicant be sentenced to a term of imprisonment of eight years.

192. I would fix a non-parole period of six years.

[4] [1922] 1 A.C. 500 at 504.

[5] [1977] 1 Q.B. 141.

[8] [1989] VicRp 23; [1989] V.R. 281 at 285.

[9] [1985] HCA 43; (1985) 157 C.L.R. 523, 60 A.L.R. 449.

[17] [1998] 4 V.R. 235 at 241-2.

[19] [2002] VSCA 131 at [61].

[21] [1999] VSCA 112. Berisha did not involve youthful offenders but it is evident that the members of the Court of Appeal whilst setting out some general propositions, in no way suggested that rehabilitation and a variety of factors were not to be taken into account in the particular circumstances of individual cases.

[22] [1999] VSCA 159.

[24] See, for example, R. v. Sherpa [2001] VSCA 145 at [11] where Callaway, J.A. stated in relation to the offence of culpable driving:

"General deterrence must usually be emphasised in the punishment of this offence and there is correspondingly less scope than in the case of some other crimes for leniency on account of an offender's youth. That does not mean that there is no scope for youth and concomitant prospects of rehabilitation to influence the disposition. Even if an immediate custodial sentence is warranted, as it almost always is, those factors may still have a bearing on the kind of sentence to be imposed (in particular the choice between imprisonment and youth training where the latter is a realistic option), the length of the sentence and the time that must necessarily be served. "

See also R. v. Toombs [2001] VSCA 144.

[26] The maximum custodial penalty fixed by the legislature for its commission being imprisonment for a term of 25 years.