Anthony Pham v The Queen - [2018] VSCA 200

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0162

ANTHONY PHAM	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 August 2018
DATE OF JUDGMENT:	9 August 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 200
JUDGMENT APPEALED FROM:	[2017] VCC 905 Judge Murphy

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CRIMINAL LAW – Sentence – Application for leave to appeal – Attempting to traffic a large commercial quantity of a drug of dependence – Amount 250 times the applicable large commercial quantity – Convicted following trial – Sentenced to 15 years’ imprisonment with non-parole period of 11 years and 6 months – Errors asserted by applicant not reasonably arguable – Whether sentence manifestly excessive – Manifest excess not reasonably arguable – No reasonable prospect that sentence would be reduced on appeal – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC	Haines & Polites
For the Respondent	Mr M D Phillips	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

On 14 March 2017, the applicant was found guilty by a jury in the County Court of one charge of attempting to traffic in a drug of dependence, namely cocaine, in not less than a large commercial quantity, contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981. The large commercial quantity applicable to cocaine is one kilogram. The applicant was convicted of attempting to traffic 250 kilograms.

On 30 June 2017, following a plea hearing, the trial judge sentenced the applicant to 15 years’ imprisonment. A non-parole period of 11 years and 6 months was fixed.[1] The maximum term of imprisonment for attempting to traffic in a drug of dependence in not less than a large commercial quantity is life.
[1]DPP v Pham [2017] VCC 905 (‘Sentencing Reasons’).

On 28 July 2017, the applicant filed an application for leave to appeal against his sentence. The application for leave to appeal against sentence contained the following grounds of appeal:

Ground 1: The sentencing Judge erred in his characterisation of the role of the applicant in the movement of an illegal drug from source to consumer, in particular –
(a)by accepting the prosecution characterisation of the role as being ‘an important part of the syndicate or enterprise’;
(b)by finding that: ‘Having considered all the evidence as to your role, which must be taken that the jury accepted, albeit over a limited period, it is well above that of a mere courier’;
(c)by characterising the role ‘as being that of a trusted intermediary in the trafficking operation’;
(d)by finding that ‘the intensity of your involvement and its centrality to the operation over that period puts your moral culpability as high’.

Ground 2: The sentencing judge erred in his assessment of the seriousness of the offending, in particular, by finding that ‘the sheer quantum of the amount of drug you attempted to traffick puts this case towards the upper range of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Anthony Pham v The Queen

Details

AGLC: Anthony Pham v The Queen [2018] VSCA 200
Case: [2018] VSCA 200
Decision Date: 9 August 2018

CaseChat Overview and Summary

The applicant, Anthony Pham, appealed against his sentence for attempting to traffic a large commercial quantity of a drug of dependence. The case was heard in the High Court of Australia. Pham was convicted following a trial and sentenced to 15 years’ imprisonment with a non-parole period of 11 years and 6 months. Pham applied for leave to appeal, asserting various errors in the sentencing process and claiming that the sentence was manifestly excessive.

The court examined whether the asserted errors were reasonably arguable and whether the sentence was manifestly excessive. The court held that the errors Pham asserted were not reasonably arguable, and therefore, the application for leave to appeal was not successful. The court further held that the sentence was not manifestly excessive and that there was no reasonable prospect that it would be reduced on appeal. The court reasoned that the quantity of drugs involved was significantly above the large commercial quantity, and the sentence reflected the gravity of the offence.

As a result of the court's reasoning, Pham's application for leave to appeal was refused. The court held that the sentence imposed was appropriate and did not represent a manifest excess. The court also found that there was no reasonable prospect that the sentence would be reduced on appeal, further justifying the refusal of leave to appeal.

Orders