R v Phan [2017] NSWDC 21

District Court New South Wales

Medium Neutral Citation: R v Phan [2017] NSWDC 21 Hearing dates: 28 January 201611 November 201627 January 2017 Date of orders: 27 January 2017 Decision date: 27 January 2017 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The offender is referred for assessment as to his suitability to serve his sentence by means of an Intensive Corrections Order Catchwords: CRIMINAL LAW – Sentence – Drug supply Legislation Cited: Crimes (Sentencing Procedure) Act Category: Sentence Parties: The Crown Philip Phan Representation: Counsel: Mr M Ainsworth - Offender

Solicitors: Director of Public Prosecutions File Number(s): 2014/228569

SENTENCE 1. HIS HONOUR: The Crown and counsel for the offender Philip Phan agree that a custodial sentence is required. What is at issue is the form that custodial sentence should take. The Crown submits that a full-time custodial sentence is appropriate but that an Intensive Corrections Order would, nevertheless, be within the appropriate range. Mr Ainsworth, counsel for Mr Phan, submits that a suspended sentence is more appropriate. 2. The offender came to the attention of police when he was speeding in the car that he was driving. This was on 4 August 2014, more than two years ago. When police breath-tested the offender, they considered that he was acting suspiciously and decided to search the car. Although when he was twice asked whether there was anything illegal in the car, and he denied that there was anything untoward to be found, police did discover a significant quantity of incriminating material. 3. There were, firstly, three plastic resealable bags with methylamphetamine in them, these weighed 14.58 grams with a purity of 80.5%. Then there were other things: a small quantity of cocaine, two small resealable bags containing MDMA, five Xanax tablets and five Valium tablets; there was also equipment used for administering drugs and $2,050 in $50 banknotes. 4. The accused has pleaded guilty to supplying the methylamphetamine and possessing the other items which I have mentioned. He spent four days in custody before being released on bail. 5. I mentioned that this offence was committed over two years ago. Almost exactly a year ago the offender first appeared before me. On that occasion I adjourned the matter under s 11 of the Crimes (Sentencing Procedure) Act. Mr Phan was employed, in a relationship and, apart from one significant matter, living a law-abiding lifestyle. The one significant matter concerned his use of drugs. The intention of the s 11 remand was to allow the offender to prove on the next occasion that he was able to reform himself completely and give up his use of drugs completely. 6. When the matter came back before me on 11 November last year, things were not as rosy as had been hoped. Mr Phan continued to use drugs and he had demonstrated significant reluctance to engage with the Probation and Parole Service. It was contemplated on that occasion that he might enter residential rehabilitation. Accordingly, the matter was adjourned to today. 7. The evidence tendered today, however, establishes that Mr Phan has, very belatedly, finally done something about his drug use. A number of clean urinalyses certificates were provided. He continues to operate the business that he was operating when he first appeared before me, continues in his relationship with his partner, and continues to care for their child. The offender has no previous criminal history. References have been tendered which indicate that Mr Phan is otherwise a man of good character. 8. His plea of guilty came rather late in the piece, shortly before his matter was listed for trial. It, nevertheless, has utilitarian value and so the sentence I will ultimately impose upon Mr Phan approximately 10% less than would otherwise have been. His plea of guilty is one of a number of factors too which have persuaded me to consider imposing Mr Phan a sentence of other than full-time custody. 9. There is no suggestion that Mr Phan was trafficking to a substantial degree. He had a significant quantity of methylamphetamine in his possession for the purposes of supply but no other indicia of supply were found, no drug ledgers, and no incriminating messages on either of the mobile phones he possessed. Accordingly, the offender does not need to demonstrate exceptional circumstances before a sentence of other than full-time custody is imposed. 10. But that is not to say that the matter is not still serious. The offender was involved in the supply of drugs. Anyone who spends any time in these courts knows the harm that drugs can cause to the users of them and also to the wider community. General deterrence is of significant importance in all matters of drug supply and it remains so in this case. The idea of general deterrence is closely allied to that of punishment. Those who might be tempted to supply drugs, as Mr Phan had on 4 August 2014, need to know that if they are detected they will be punished. 11. It is here that I turn to the question of the disposition of this matter. I do not consider that a full-time custodial sentence is required, but I am satisfied that the alternative pressed upon me by Mr Ainsworth, a suspended sentence of imprisonment, does not sufficiently punish the offender for his original wrongdoing. 12. Mr Ainsworth submitted that there were intrusions into the life of someone involved in an Intensive Corrections Order sentence, some of which may be thought to be the product of personality clashes. Certainly the offender has had difficulty in the past complying with the requirements of the Probation and Parole Service. The pre‑sentence report tendered last year indicated what I will describe as the lamentable failure of Mr Phan to do what Probation and Parole required of him as regards rehabilitating himself from drug use. 13. In any case, some of the components of an ICO are appropriate where a person is to be punished. An ICO involves community service, that is an offender has to give up some of his or her leisure time, or time that they would otherwise be spending doing more enjoyable activities, in order to perform community service. An ICO involves a curfew, that also involves restrictions on the liberty of the offender. These restrictions are appropriate as a means of providing a measure of punishment for those who, like Mr Phan, get involved in drug supply. 14. Although the authorities tell me that in a real sense a suspended sentence can involve punishment, in the present case it is insufficient punishment to reflect the objective gravity of the offender's conduct. 15. ICOs are also designed to promote rehabilitation. Random visits by Probation and Parole officers, at which a person will be tested for alcohol and drug use, are intrusive but appropriately so. The offender must know that he cannot try and game the system by using drugs and then hoping the he will not be required to provide evidence as to whether he has used drugs because of the random nature of the visits from those administering the ICO. It is thus, although Mr Phan may not see it this way, also in his interests that he is subject to the many restrictions that an ICO involves. 16. I should have made it clear at the very beginning of these remarks that it was accepted, implicitly by both the Crown and Mr Ainsworth, that the custodial sentence that had to be imposed would be two years or less, an assessment with which I agreed. 17. Having determined that a custodial sentence is required, and having determined that it is likely to be two years or less and having determined that if suitable it would be appropriate for Mr Phan to serve his sentence by means of an Intensive Corrections Order, I will adjourn the matter for a period to allow that assessment to be undertaken. 18. DISCUSSION AS TO SUITABLE DATE 19. HIS HONOUR: 17 March for consideration of the results of the ICO assessment.