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Ma and Pham v R

Ma and Pham v R

Case [2007] NSWCCA 240 8 August 2007

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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 2007

JUDGMENT 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 Turnbull

SOLICITORS: Crown: S Kavanagh
Appellant Ma: Morgan Ardino
Appellant Pham: SE O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/0236

LOWER COURT JUDICIAL OFFICER: Morgan DCJ

- 29 -

2007/66
2007/320

McCLELLAN CJ AT CL
HULME J
HOEBEN J

Eric MA v R

Quang Sang PHAM v R

Judgment

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…

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 Ma and Pham v R

Details

AGLC: Ma and Pham v R [2007] NSWCCA 240
Case: [2007] NSWCCA 240
Decision Date: 8 August 2007

CaseChat Overview and Summary

The applicants, Ma and Pham, appealed their sentences on the grounds that the sentencing judge had not properly applied the parity principle in considering the aggravating and mitigating factors relevant to them and their co-offender. They argued that the sentence was manifestly excessive and that the judge failed to adequately consider their personal circumstances. The Crown opposed the appeal, asserting that the sentences were appropriate and that the sentencing judge had considered all relevant factors. The case was heard in the High Court of Australia.
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