New South Wales
Court of Criminal Appeal
CITATION: MA and PHAM v R [2007] NSWCCA 240 HEARING DATE(S): 2 April 2007
JUDGMENT DATE:
8 August 2007JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 2; Hoeben J at 104 DECISION: Leave to appeal granted; Appeal dismissed PARTIES: Regina
Eric MA
Quang Sang PHAM
FILE NUMBER(S): CCA 2007/66; 2007/320 COUNSEL: Crown: W Dawe QC
Appellant Ma: D Wetmore
Appellant Pham: Mr TurnbullSOLICITORS: Crown: S Kavanagh
Appellant Ma: Morgan Ardino
Appellant Pham: SE O'ConnorLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/21/0236 LOWER COURT JUDICIAL OFFICER: Morgan DCJ
2007/66
2007/320
Wednesday 8 August 2007McCLELLAN CJ AT CL
HULME J
HOEBEN J
Eric MA v R
Quang Sang PHAM v R
1 McCLELLAN CJ AT CL: I agree with Hulme J.
2 HULME J: According to the remarks on sentence of Judge Morgan from whose sentences these proceedings are brought, on 20 June 2005 the above named Applicants together with Saul Ngao, Damien Hughes and Molika Heng were arraigned on a charge that between 17 September and 19 November 2003 they did knowingly take part in the supply of heroin in an amount not less than a commercial quantity. Each offender pleaded not guilty. Before a jury was empanelled, Judge Morgan was asked to rule on the admissibility of some telephone intercept evidence. Her Honour concluded that the evidence was admissible following which all offenders with the exception of Molika Heng pleaded guilty.
3 On 7 July 2005 a jury convicted Ms Heng and on 11 November 2005 Judge Morgan sentenced her to imprisonment for a total term of 12 years, including a non-parole period of 8 years, both periods to commence on 4 November 2003. Sentencing proceedings for the remaining four offenders commenced on 2 December 2005. There were delays; those proceedings concluded on 3 March 2006 and her Honour sentenced the offenders on 13 April 2006. The sentences imposed were:-
- In the case of Ma, imprisonment for a non-parole period of 7 years and a total term of 10½ years from 19 November 2003;
- In the case of Ngao, imprisonment for a non-parole period of 7 years and a total term of 10½ years from 20 August 2004;
- In the case of Pham, imprisonment for a non-parole period of 5½ years and a total term of 9 years from 19 November 2003; and
- In the case of Hughes, imprisonment for a non-parole period of 5½ years and a total term of 9 years from 19 August 2004.
4 The offences arose pursuant to s25 of the Drug (Misuse and Trafficking) Act which, in combination with a schedule to the Act, renders it an offence to supply or be knowingly concerned in the supply of heroin. By reason of that schedule and s33 of the Act, the maximum penalty of imprisonment for the supply or knowing involvement in the supply of 250 grams or more but less than 1 kilogram is…
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- AGLC
- Ma and Pham v R [2007] NSWCCA 240
- Case
- [2007] NSWCCA 240
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the sentencing judge had erred in applying the parity principle and whether the sentence was manifestly excessive. The applicants argued that the judge should have compared their circumstances to those of their co-offender, who received a lesser sentence, and that the sentence imposed was disproportionate to the crimes committed. The Crown maintained that the judge had correctly applied the principles of sentencing and that the sentences were fair and appropriate.
The court held that the sentencing judge had not erred in applying the parity principle. It found that the judge had properly considered the aggravating and mitigating factors and had made a reasoned judgment based on the evidence presented. The court also determined that the sentences were not manifestly excessive, as they were within the range of penalties that could be imposed for the crimes committed. The appeal was dismissed, and the original sentences were upheld.
The final orders of the court were that the appeals of Ma and Pham against their sentences were dismissed, and the original sentences imposed by the sentencing judge were affirmed. The court found that the judge had correctly applied the principles of sentencing and that the sentences were fair and appropriate.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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