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Anthony Pham v The Queen

Anthony Pham v The Queen

Case [2017] VSCA 297 19 October 2017

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0162

ANTHONY PHAM	Applicant
V
THE QUEEN	Respondent

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JUDGE:	SANTAMARIA JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 October 2017
DATE OF JUDGMENT:	19 October 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 297
JUDGMENT APPEALED FROM:	[2017] VCC 905 (Judge Murphy)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

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CRIMINAL LAW – Application for leave to appeal against sentence – Trafficking in drug of dependence in not less than large commercial quantity – Sentence of 15 years’ imprisonment with non-parole period of 11 years and 6 months – Applicant obtained possession of 250 kilograms of faux cocaine – Covert police operation – Role of applicant in offending – Seriousness of offending – Whether context of police operation a mitigating factor – Whether sentence manifestly excessive – Drugs, Poisons and Controlled Substances Act 1981 s 71 – Leave to appeal refused.

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

SANTAMARIA JA:

The applicant stood trial in the County Court on a charge of attempting to traffick in a drug of dependence, namely cocaine, in not less than a large commercial quantity (‘LCQ’).[1] He was convicted of that offence and sentenced to a term of 15 years’ imprisonment. A non-parole period of 11 years and 6 months was fixed.[2] He now seeks leave to appeal his sentence.
[1]Drugs, Poisons and Controlled Substances Act 1981 s 71.
[2]The sentencing judge declared a pre-sentence detention period of 136 days and made a forensic sample order pursuant to s 464ZF of the Crimes Act 1958, a forfeiture order pursuant to s 34(1) of the Confiscation Act 1997 and a disposal order pursuant to s 78(1) of the Confiscation Act 1997.

Circumstances of the offending

In September 2015, the applicant became the subject of a covert police operation. Initially, a covert police operative who went by the name of ‘Mika Nolan’ was instructed to make contact with an unidentified male known as ‘Sunny’. Between 28 August and 4 September 2015, Mika, who had introduced himself as ‘a friend of Johnny’s’, had several communications with Sunny, presumably to discuss arrangements concerning a delivery of illicit drugs. But, these communications broke down.

On 6 September 2015, Mika received instructions from his controller to make contact with an unidentified male known as ‘Andy’, who was, in fact, the applicant. On that same day, Mika tried to call the applicant three times, but to no avail. He later sent a text message to the applicant that said: ‘Hi Andy, I’m Johnny’s mate. We need to catch up for coffee tomorrow at 11 am. Ring me when you get this message, Mika’.[3] Later that afternoon, the applicant received a telephone call from Mika.[4] During a short conversation, the applicant and Mika…

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 [2017] VSCA 297
Case: [2017] VSCA 297
Decision Date: 19 October 2017

CaseChat Overview and Summary

Anthony Pham, the appellant, filed an application for leave to appeal against his sentence for trafficking in a drug of dependence in a large commercial quantity. The case was heard in the High Court of Australia. Pham was found guilty of possessing 250 kilograms of a substance that appeared to be cocaine, which was part of a larger covert police operation. The primary legal issue the court needed to address was whether the sentence imposed by the trial court was manifestly excessive. This required an evaluation of the seriousness of Pham's involvement in the drug trafficking operation, the context of the police operation, and whether these factors should be considered as mitigating circumstances in sentencing.

The court meticulously examined the appellant's role in the drug trafficking operation, his culpability, and the overall gravity of the offence. It considered the nature of the operation and the extent to which it might have influenced Pham's involvement. The court also evaluated whether the sentence of 15 years’ imprisonment, with a non-parole period of 11 years and 6 months, was excessively harsh. It scrutinised whether the sentence adequately reflected the seriousness of the offence while also considering the role of the police operation. Ultimately, the court concluded that the sentence was proportionate and did not constitute a manifestly excessive punishment.

Consequently, the High Court dismissed the application for leave to appeal. The court found that the sentence was neither manifestly excessive nor unjust, taking into account all relevant factors. The detailed analysis affirmed the sentence imposed by the trial court as appropriate and within the bounds of judicial discretion. The High Court's decision thus upheld the original sentence, providing clarity on the application of sentencing principles in cases involving significant drug trafficking offences.

Orders