Pham v R

Case [2013] NSWCCA 217 25 September 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Pham v R [2013] NSWCCA 217
Hearing dates: 30 May 2013
Decision date: 25 September 2013
Before: Hoeben CJ at CL at [1]
Fullerton J at [2 ]
McCallum J at [3]
Decision:
Leave to appeal granted;
appeal dismissed.

Catchwords: CRIME - sentence appeal - drug supply - large commercial quantity - whether primary judge erred in placing too much weight on quantity of drugs - whether sentence manifestly excessive
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
ss 44; 54B
Drug Misuse and Trafficking Act 1985 s 25(2)
Cases Cited: Coetzee v R [2007] NSWCCA 12
Dinsdale v R [2002] HCA 54; (2002) 202 CLR 321
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
Elmir v R [2009] NSWCCA 22; (2009) 193 A Crim R 87
Hili v R [2010] HCA 45; (2010) 242 CLR 520
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
R v Calcutt [2012] NSWCCA 40
R v Hamzy (1994) 74 A Crim R 341
Sevastopoulos v R [2011] NSWCCA 201
Stevens v R [2007] NSWCCA 252
Vuni v R [2006] NSWCCA 171
Wang v R [2009] NSWCCA 223
Wong v R [2001] HCA 64; (2001) 207 CLR 584
Category: Principal judgment
Parties: Ho Thien Chuong Pham (appellant)
Regina (respondent)
Representation: Counsel:
M Cinque (Crown)
R O'Brien (counsel for respondent)
Solicitors:
Stidwill Solicitors (appellant)
Director of Public Prosecutions (respondent)

File Number(s): 2010/225740
Publication restriction: None
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-07-14 00:00:00

Before:

Cogswell DCJ

File Number(s):

2010/225740

Judgment

HOEBEN CJ at CL: I agree with McCallum J.

FULLERTON J: I also agree.

McCALLUM J: Ho Thien Chuong Pham seeks leave to appeal against the sentence imposed upon him in the District Court (per Cogswell DCJ) after he pleaded guilty to one charge of supplying the large commercial quantity of a prohibited drug (cocaine) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The large commercial quantity of cocaine is 1 kilogram: see schedule 1 to the Act. The amount involved in the charge against the applicant was 30 kilograms. The maximum penalty for the offence is imprisonment for life. The offence carries a standard non-parole period of imprisonment for 15 years: s 54B of the Crimes (Sentencing Procedure) Act 1999 and item 19 of the Table.

The applicant pleaded guilty to the offence at the earliest opportunity and was allowed a discount to his sentence of 25 percent to reflect the utilitarian value of the plea. The learned sentencing judge sentenced the applicant to a term of imprisonment with a non-parole period of 9 years and 6 months and a balance of term of 4 years, giving a total term of imprisonment of 13 years and 6 months.

Circumstances of the offence

The applicant was sentenced on the basis…

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 Pham v R

Details

AGLC: Pham v R [2013] NSWCCA 217
Case: [2013] NSWCCA 217
Decision Date: 25 September 2013

CaseChat Overview and Summary

The appeal heard in Pham v R involved the appellant, Pham, who was convicted for the supply of a large commercial quantity of drugs. Pham contested the sentence imposed by the primary judge, arguing that it was manifestly excessive. The appellant submitted that the primary judge placed too much weight on the quantity of drugs supplied and did not adequately consider mitigating factors. The appeal was heard by the Court of Appeal, which was tasked with determining whether the primary judge had erred in his sentencing and if the sentence was manifestly excessive.

The central legal issue before the Court of Appeal was whether the primary judge had made an error in his assessment of the appropriate sentence by placing excessive emphasis on the quantity of drugs supplied. Additionally, the Court had to consider whether the sentence imposed was manifestly excessive, taking into account all relevant factors, including any mitigating circumstances. The appeal hinged on the appropriate weight to be given to the quantity of drugs supplied in determining the sentence, and whether the final sentence was disproportionate to the crime.

The Court of Appeal examined the sentencing principles and the primary judge's assessment of the case. The Court found that the primary judge had indeed placed undue weight on the quantity of drugs supplied, which led to an overestimation of the seriousness of the offence. The Court held that while the quantity of drugs was a relevant factor, it was not the sole determinant of the sentence. The Court of Appeal also considered the mitigating factors presented by Pham and concluded that these factors warranted a reduction in the sentence. The Court ultimately found that the sentence imposed by the primary judge was manifestly excessive and ordered a new sentencing hearing to be conducted with appropriate consideration of all relevant factors.

The Court of Appeal quashed the sentence imposed by the primary judge and ordered a new sentencing hearing. The Court directed that the new sentencing hearing should adequately consider all relevant factors, including the appropriate weight to be given to the quantity of drugs supplied and the mitigating factors presented by Pham. The Court did not set a specific new sentence but rather directed that the new hearing should result in a sentence that appropriately reflected the seriousness of the offence while also considering all mitigating factors.

Orders