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…
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- AGLC
- Anthony Pham v The Queen [2017] VSCA 297
- Case
- [2017] VSCA 297
- Decision Date
CaseChat Overview and Summary
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.
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