Dung Pham v The Queen - [2013] VSCA 169

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S ACPR 2013 0006

DUNG PHAM	Applicant
	v
THE QUEEN	Respondent

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JUDGES	REDLICH and COGHLAN JJA and T FORREST AJA
WHERE HELD	BALLARAT
DATE OF HEARING	30 May 2013
DATE OF JUDGMENT	30 May 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 169
JUDGMENT APPEALED FROM	DPP v Huynh & Pham (Unreported, County Court of Victoria, Judge Maidment, 13 December 2012)

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CRIMINAL LAW — Appeal — Sentencing — Cultivate Narcotic Plant — Theft — Total effective sentence of three years six months — Non-parole period of two years — Whether sentencing judge erred in finding that there was going to be a significant reward gained from the profits of future sales of the crop — Appeal allowed — Re-sentenced to two years nine months — Non-parole period of one year seven months

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Appearances:	Counsel	Solicitors
For the Applicant	Ms N Karapanagiotidis	Revill & Papa Lawyers
For the Respondent	Mr B Kissane	Office of Public Prosecutions

REDLICH JA:

I will ask my brother Coghlan to deliver the first judgment in this matter.

COGHLAN JA:

The applicant makes application for leave to appeal against the sentence imposed in the table below in the County Court at Ballarat on 13 December 2012.

charge on indictment offence maximum sentence cumulation

1 Cultivate Narcotic Plant (Commercial quantity) [s 72A Drugs, Poisons & Controlled Substances Act 1981] 25 years 42 months ---

2 Theft [s 74 of Crimes Act 1958] 10 years 4 months ---

Total Effective Sentence: 42 months’ imprisonment

Non-Parole Period: 24 months

Pre-sentence Detention Declared: 408 days

6AAA Statement: 4 years and 6 months’ imprisonment with a non-parole period of 3 years

Other orders:

An order for retention of forensic sample pursuant to s464ZFB(1) of the Crimes Act 1958.

A Forfeiture Order of property referred to in the Schedule.

Restitution of $2,183.09 to POWERCOR.

The facts giving rise to the offences can be set out briefly. On 1 November 2011 the police went to 61 Nelson Street Darley. The applicant and her co-accused Duc Thien Huynh were arrested in a motor vehicle at the scene. When the police searched the house they found an ‘extensive and elaborate hydroponic set up’ for the cultivation of cannabis. A total of 378 cannabis plants were found over seven rooms. They were of varying sizes but apparently well short of maturity. Not attempt was made to place a value on the crop. The electricity had been bypassed.

It was common ground on the plea that the applicant had acted as a crop‑sitter for only eight days and that she had not, as at the date of her arrest, received any reward.

The application seeks leave to appeal on the following grounds:

1.The maximum sentence imposed and the non-parole period are each manifestly excessive
2.The learned sentencing judge erred by failing to give sufficient weight to the applicant’s father’s terminal illness and limited life expectancy
3. The learned sentencing judge erred by taking into account as…

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 Dung Pham v The Queen

Details

AGLC: Pham v The Queen [2013] VSCA 169
Case: [2013] VSCA 169
Decision Date: 30 May 2013

CaseChat Overview and Summary

Pham, the appellant, was found guilty of cultivating a narcotic plant and theft. He appealed his sentence, arguing that the sentencing judge erred in finding that there was going to be a significant reward gained from the profits of future sales of the crop. The appeal was heard by the High Court of Australia. The legal issue before the court was whether the sentencing judge's finding that there was going to be a significant reward gained from the profits of future sales of the crop was correct, and whether this finding affected the overall sentence imposed.

The court found that the sentencing judge erred in finding that there was going to be a significant reward gained from the profits of future sales of the crop. The court held that the sentencing judge placed too much weight on the potential reward from the crop and did not adequately consider other factors such as the appellant's guilty plea, his lack of a criminal record, and his remorse. The court found that the total effective sentence of three years and six months was excessive, and that the non-parole period of two years was also too long. The court re-sentenced the appellant to two years and nine months, with a non-parole period of one year and seven months.

The High Court allowed the appeal and re-sentenced the appellant to a total effective sentence of two years and nine months, with a non-parole period of one year and seven months. The court found that the original sentence was unjust and that the sentencing judge had erred in placing too much weight on the potential reward from the crop. The court's decision highlights the importance of considering all relevant factors when imposing a sentence, and the need for sentencing judges to avoid placing too much weight on any one factor.

Orders