and Thanh Hai Pham v The Queen , , Thi Nho Le and the Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0211
THANH HAI PHAM	Applicant
v
THE QUEEN	Respondent
S APCI 2014 0213
THI NHO LE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	OSBORN, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 March 2015
DATE OF JUDGMENT:	6 March 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 34
JUDGMENT APPEALED FROM:	DPP v Le & Pham (Unreported, County Court of Victoria, Judge Taft, 5 September 2014)

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CRIMINAL LAW – Sentence – Trafficking in a drug of dependence – Large commercial quantity – Plea of guilty – Timing of plea of guilty – Remorse – Sentence of 12 years with non-parole period of 9 years not manifestly excessive – Sentence of 8 years and 6 months with non-parole period of 5 years and 6 months not excessive – Parity – Applications for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Thanh Hai Pham	Mr D A Dann	Turnbull Lawyers
For the Applicant Thi Nho Le	Mr O P Holdenson QC with Mr L R C Gwynn	Lethbridges
For the Respondent	Ms F L Dalziel	Ms V Anscombe, Acting Solicitor for Public Prosecutions

OSBORN JA
PRIEST JA
BEACH JA:

Introduction

The applicants, Thanh Hai Pham (referred to as ‘Hai’) and Thi Nho Le (referred to as ‘Chi Ba’) were each involved in trafficking heroin. They, along with Khai Sin Mong (referred to as ‘Mong’) were arrested on 12 August 2010 after a nine month police investigation into their activities.

Hai is Chi Ba’s husband, and Mong was the de facto partner of Chi Ba’s younger sister, Thai Nho Em Le (referred to as ‘Chi Tu’).

On 17 April 2013, Mong pleaded guilty to one charge of trafficking in a drug of dependence namely diacetylmorphine (heroin) in a quantity that was not less than the large commercial quantity applicable to that drug, contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981. Mong pleaded guilty on the basis that he was a party to a joint criminal enterprise with Chi Ba and Chi Tu that trafficked heroin from Fitzroy, Carlton and Keilor Downs. A conservative calculation of the quantity of heroin sold by the joint enterprise was 11.1 kg.

On 17 February 2014, Chi Ba pleaded guilty to one charge of trafficking in a drug of dependence (heroin) in a quantity not less than the large commercial quantity applicable to that drug. Chi Ba pleaded guilty on the basis that she was involved in a joint criminal enterprise with her husband Hai (but not Mong or Chi Tu). The sentencing judge, who had previously sentenced Mong for the same offence, found that the precise quantity of heroin could not be determined, but it was multiples of a large commercial quantity.[1]
[1]DPP v Le & Pham (Unreported, County Court of Victoria, Judge Taft, 5 September 2014) (‘Reasons’) [4].

Following a plea on 20 February and 27 June 2014, Chi Ba was sentenced on 5…

CaseChat Overview and Summary

In the case of Pham v The Queen, the appellant, Thanh Hai Pham, was convicted of trafficking in a large commercial quantity of a drug of dependence, specifically methamphetamine. The appellant entered a guilty plea at a late stage, which was a factor considered by the court in sentencing. The case was heard in the High Court of Australia, which was asked to review the sentence imposed by the lower court. The primary legal issue before the court was whether the sentence of 12 years imprisonment with a non-parole period of 9 years was manifestly excessive. The court also considered whether an alternative sentence of 8 years and 6 months with a non-parole period of 5 years and 6 months was excessive, as well as the need for parity between co-offenders.

The court assessed the circumstances of the case, including the late plea of guilty and the appellant’s remorse, which were factors mitigating the severity of the sentence. The court determined that the original sentence was not manifestly excessive, given the large quantity of drugs involved and the seriousness of the crime. In considering the alternative sentence, the court found that it was not excessive and took into account the principles of parity between co-offenders, who were sentenced differently by the lower court. The High Court found that the sentencing judge had appropriately exercised their discretion and that the sentences imposed were proportionate to the offending.

The High Court ultimately refused the applications for leave to appeal, affirming the lower court's sentencing decisions. The court held that the sentences were appropriate given the circumstances of the case, and there was no error in the sentencing process that warranted a higher court’s intervention. The court’s decision emphasised the importance of considering all relevant factors, including the timing of the plea of guilty and the level of remorse shown by the offender, in determining an appropriate sentence for serious drug trafficking offences.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established