Pham v R

Case [2014] NSWCCA 115

Court of Criminal Appeal

New South Wales
Case Title: PHAM v R
Medium Neutral Citation: [2014] NSWCCA 115
Hearing Date(s): 01/04/2014
Decision Date: 26 June 2014
Before: Hoeben CJ at CL at [1]
Adams J at [64]
Hall J at [65]
Decision:

Leave to appeal granted.
Appeal dismissed.
Catchwords: CRIMINAL LAW - sentence appeal - two counts of supply a commercial quantity of a prohibited drug - whether sentencing judge relied upon cases infected by "Muldrock error" - no "Muldrock error" in reasoning of sentencing judge - whether sentence manifestly excessive - sentence while heavy not unreasonable or plainly unjust - no basis established for interfering with discretion of sentencing judge - leave to appeal granted but appeal dismissed.
Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW) - s 25(2),
Cases Cited: Aoun v R [2011] NSWCCA 284
Butler v R [2012] NSWCCA 23
Collier v R [2012] NSWCCA 213
Dang v R [2014] NSWCCA 47
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Efstathiadis v R [2009] NSWCCA 319
Essex v R [2013] NSWCCA 11
Hill v R [2012] NSWCCA 265
Hsu v R [2012] NSWCCA 248
Lipton v R [2010] NSWCCA 175
Ly v R [2008] NSWCCA 262
Muldrock v R [2011] HCA 39; 244 CLR 120
Parris v R [2013] NSWCCA 5
Paxton v R [2011] NSWCCA 242
R v Ehrlich [2012] NSWCCA 38
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Regina v Howard [2004] NSWCCA 348
Wienand v R [2013] NSWCCA 202
Category: Principal judgment
Parties: Huy Pham - Applicant
Regina - Respondent Crown
Representation
- Counsel: Counsel:
T Game SC - Applicant
S Herbert - Respondent Crown
- Solicitors: Solicitors:
Hanna Legal - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2012/54472
Decision Under Appeal
- Before: Blackmore SC DCJ
- Date of Decision:  21 June 2013
- Court File Number(s): 2012/54472

JUDGMENT

  1. HOEBEN CJ at CL:

    Offences and sentence
    The applicant was sentenced by Judge Blackmore SC in the Sydney District Court on 21 June 2013 in respect of the following offences for which he had entered a plea of guilty in the Local Court.

    Count 1 - Supply a commercial quantity of a prohibited drug, namely MDMA (quantity 299.2 grams), contrary to s25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) for which the maximum penalty is imprisonment for 20 years and which carries a standard non-parole period of 10 years.

    Count 2 - Supply a large commercial quantity of a prohibited drug, namely cocaine (1000.8 grams), contrary to s25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) for which the maximum penalty is imprisonment for life and which carries a standard non-parole period of 15 years.

  2. There was a Form 1 matter of supplying an indictable quantity of a prohibited drug, namely Methorphan, taken into account on sentence for count 2.

  3. The sentences imposed by Blackmore SC DCJ were:

    Count 1 - Imprisonment with a non-parole period of…

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Details
AGLC
Pham v R [2014] NSWCCA 115
Case
[2014] NSWCCA 115
Decision Date

CaseChat Overview and Summary

In the matter of Pham v R, the appellant, Le Vuong, sought to appeal against the sentence imposed by the primary judge. Vuong was found guilty of two counts of supplying a commercial quantity of a prohibited drug, namely MDMA and cocaine, and was sentenced to imprisonment with a non-parole period of 8 years and a balance of term of 4 years. The appeal raised two primary issues: whether the sentencing judge relied upon cases infected by the "Muldrock error" and whether the sentence was manifestly excessive. The Court of Appeal considered these issues in turn.

The appellant argued that the sentencing judge may have been influenced by the decisions in Efstathiadis v R and Ly v R, which were potentially infected by the "Muldrock error." However, the Court of Appeal found that the sentencing judge did not refer to these cases in the sentence judgment and, therefore, the argument was without foundation. The Court noted that the primary judge had acknowledged the distinctions between those cases and the present case, indicating that the decisions were not considered persuasive or relevant. The Court further explained that simply following the principles set out in R v Way before the Muldrock decision does not equate to an error, as long as the sentencing judge did not treat the standard non-parole period as mandatory or determinative.

Regarding the second issue, the Court examined whether the sentence was manifestly excessive or plainly unjust. The Court concluded that while the sentence was heavy, it was not unreasonable or plainly unjust. The Court acknowledged the seriousness of the offences and the quantity of drugs involved but also considered the appellant's cooperation with authorities and other mitigating factors. The Court held that there was no basis for interfering with the discretion of the sentencing judge.

The appeal was dismissed, and the original sentence was upheld.

Orders

Orders of the court

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Background

Background to the litigation

The total effective sentence was imprisonment with a non-parole period of 8 years and a balance of term of 4 years, such sentence to commence 17 February 2012 and expire 16 February 2024.Factual Background Strike Force Bootleg was established by the Regional Enforcement Squad Surry Hills to investigate the supply of prohibited drugs by Le Vuong and her associates, Huy Thanh, Fong Dang and Thanh Li. A warrant was granted to authorise an undercover operative (UCO), to be supplied with prohibited drugs by those offenders. Five different telephone services used by Vuong were monitored. The communications showed that Vuong was using coded conversations with the applicant to source and supply prohibited drugs, namely MDMA, on 2 February 2012. From 23 January 2012 the UCO established telephone contact with Vuong who advised that she had quantities of ecstasy tablets available for purchase. On 31 January 2012 Vuong telephoned the applicant and discussed obtaining "lollies" (MDMA) for the UCO. On 1 February 2012 Vuong telephoned the applicant to order 1000 "eggs" for the next day and asked about sourcing 500 eggs for the Friday. On 2 February 2012 Vuong telephoned the applicant to ask if he had prepared "one" egg. The applicant advised Vuong that the source had to travel some distance and that overseas stock was too expensive. In a later conversation the applicant and Vuong agreed on the price of $11 per tablet and they made arrangements for the supply to take place that day. Later that day, the UCO was supplied with 1,058 ecstasy tablets by Vuong, the applicant and Dang. The price paid was $13,500. The tablets were analysed to be 229.2 grams of MDMA with a purity of 4 - 17 percent. The UCO was also given a small sample of cocaine by Vuong. These were the circumstances of the offence in count 1. On 7 February 2012 Vuong told the UCO by telephone that she could supply her with one kilogram of cocaine. They met the following day and discussed the purchase of the one kilogram of cocaine and 1000 ecstasy tablets. The UCO said that she could buy the drugs on Friday, 17 February 2012 if the price were right. Between 8 February and 17 February 2012 there was considerable communication between Vuong and the applicant via telephone and SMS. On 16 February 2012 the applicant told Vuong that he did not have "the stuff" because he was waiting for a telephone call. Later that night, the applicant confirmed "everything is good I have some - I have SMS you already both can be delivered". The applicant told Vuong that he could not promise that the supply could be organised by 8am "but I will try my best". The price discussed for the kilogram of cocaine was between $235,000 and $245,000. On 17 February 2012 numerous calls and text messages were exchanged between Vuong and the applicant to arrange the supply of the ecstasy tablets and the one kilogram of cocaine. At 11am Vuong got into the applicant's car in Bankstown and they drove to the Pyrmont area. They entered the UCO's hotel room in Pyrmont. After the UCO showed the applicant and Vuong $13,350 in cash, the applicant said to a person on the telephone "I've checked the paperwork it's all there, yeah quickly all right". Vuong told the applicant to hurry up the supplier. The applicant told the UCO "I go get egg, I go get egg" then left the hotel room.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

HOEBEN CJ

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Ratio Decidendi

Legal Principle Established

Established by: HOEBEN CJ

The applicant submitted that the erroneous reliance upon Ly and Efstathiadis was sufficient to establish the first ground of appeal and accordingly this Court was able to re-sentence without the need for him to establish the second ground of appeal.Consideration This ground of appeal is bold. It seeks to argue that in some unspecified way, the exercise of the sentencing discretion by the primary judge was infected by Muldrock error. It does so not by reference to what the primary judge said in his sentence judgment but because he may have had in mind the sentences imposed in Efstathiadis v R and Ly v R when sentencing in this case. This ground of appeal is without foundation and should be rejected. At no stage in his judgment did the primary judge refer to the decisions in Efstathiadis v R or Ly v R. The sentence proceedings were heard over a number of days. On the first day, the primary judge raised with counsel that given the very serious series of offences, it was a possibility that his client could receive a non-parole period exceeding 10 years. On 7 June 2013 when the matter was next before the court, the Crown provided brief written submissions to the primary judge which for the first time referred to the decisions in Efstathiadis v R and Ly v R. In the course of an exchange with both counsel for the defence on that day, his Honour accepted that there were aspects which distinguished those cases from the case before him. The fact that there was no reference to either case in the sentence judgment is consistent with his Honour not finding either to be particularly persuasive or relevant. In that regard, the observation by Spigelman CJ (with whom Grove J and Smart AJ agreed) in Regina v Howard [2004] NSWCCA 348 is pertinent:"47 This is a reference to some observations made by his Honour in the course of argument. Those particular observations are not repeated in his remarks on sentence. The particular matters do not appear to have been taken into account in any adverse way. A trial judge is entitled to put propositions during the course of argument and to modify those propositions, either as a result of submissions or in the light of further consideration of the relevant material." It has not been suggested, nor could it be, that the primary judge gave the standard non-parole period primary or determinative significance in the formulation of sentence nor did his Honour adopt a two stage approach. In any event, simply demonstrating that a sentencing judge followed R v Way [2004] NSWCCA 131; 60 NSWLR 168 before the decision in Muldrock will not of itself be sufficient to demonstrate error (Essex v R [2013] NSWCCA 11 at [30]; Butler v R [2012] NSWCCA 23 at [26]). The critical issue is whether, guided by the jurisprudence before Muldrock, the primary judge used the standard non-parole period as a mandatory starting point or gave it determinative significance. Finally, it is by no means clear that the decisions in Efstathiadis v R and Ly v R were affected by Muldrock error. In Ly Hislop J (with whom Beazley JA and Harrison J agreed) when dismissing an applicant's appeal against sentence said:"31 In the end result, the non parole period imposed was 8 years, reflecting a starting point before the discount for the plea of 25 percent of 10 years and 8 months compared to the 15 year standard non parole period. The applicant also received a finding of special circumstances and the non parole period was 66.7 percent of the total term. There was therefore a clear allowance made for the applicant's subjective features, including his plea."