Pham v R

Case [2010] NSWCCA 208 17 September 2010

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New South Wales
Court of Criminal Appeal

CITATION: Pham v R [2010] NSWCCA 208

HEARING DATE(S): 2 September 2010

JUDGMENT DATE:
17 September 2010

JUDGMENT OF: Macfarlan JA at 1; Simpson J at 2; Hall J at 51

DECISION: Leave to appeal granted, appeal dismissed.

CATCHWORDS: CRIMINAL LAW – particular offences – drug offences - knowingly taking part in the supply of not less than the large commercial quantity of a prohibited drug - CRIMINAL LAW – application for leave to appeal against sentence – whether error in finding no evidence of real contrition or remorse – whether error in assessment of objective criminality – whether failure to take into account nature of drug as precursor – whether failure to provide reasons for finding that matter fell into middle range of objective seriousness for purpose of application of standard non-parole period – no error found

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

CATEGORY: Principal judgment

CASES CITED: Adams v The Queen [2008] HCA 15; 234 CLR 143
R v Baleisuva [2004] NSWCCA 344
R v Butters [2010] NSWCCA 1
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Way [2004] NSWCCA 131; 60 NSWLR 168

PARTIES: Kim Thanh Pham (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2008/14562

COUNSEL: P J Hamill SC/M G Coroneos (Applicant)
J A Girdham (Respondent)

SOLICITORS: Hanby & Associates (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/14562

LOWER COURT JUDICIAL OFFICER: Frearson DCJ

LOWER COURT DATE OF DECISION: 24 July 2009

2008/14562

MACFARLAN JA
SIMPSON J
HALL J
17 September 2010

Kim Thanh PHAM v R

Judgment

1 MACFARLAN JA: I agree with Simpson J

2 SIMPSON J: The applicant seeks leave to appeal against the severity of a sentence imposed upon him in the District Court on 24 July 2009, following his plea of guilty to a single charge of knowingly taking part in the supply of not less than the large commercial quantity of a prohibited drug (pseudoephedrine), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (“the DMT Act”). By s 33(3)(a) of that Act the applicant was exposed to a maximum penalty of life imprisonment. By Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”), a standard non-parole period of 15 years is applicable to the offence.

3 Frearson DCJ sentenced the applicant to imprisonment for 10 years, with a non-parole period of 6 years. The applicant contends that two errors can be identified in the sentencing process, as evidenced in the Remarks on Sentence, and that these errors affected the outcome adversely to him. He does not contend that the sentence is, of itself, manifestly excessive: he contends rather, that, if the judge had correctly approached the sentencing task, the resultant sentence would have been less.

The facts

4 Although evidence of the facts was…

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 [2010] NSWCCA 208
Case: [2010] NSWCCA 208
Decision Date: 17 September 2010

CaseChat Overview and Summary

In the case of Pham v R, the appellant was convicted of knowingly taking part in the supply of a large commercial quantity of a prohibited drug. The matter was heard in the High Court of Australia, which was considering an application for leave to appeal against the sentence imposed on the appellant. The central issues before the court were whether there was an error in the finding that there was no evidence of real contrition or remorse, whether there was an error in the assessment of the objective criminality, whether the failure to take into account the nature of the drug as a precursor was an error, and whether there was a failure to provide reasons for finding that the matter fell into the middle range of objective seriousness for the purpose of applying the standard non-parole period.

The court examined each of these issues in turn, considering the evidence presented and the findings of the lower court. It found that there was no error in the finding that there was no evidence of real contrition or remorse, as the lower court had carefully considered the appellant's conduct and statements. The court also found that there was no error in the assessment of the objective criminality, as the lower court had correctly applied the relevant principles and considered the appropriate factors. The court noted that while the nature of the drug as a precursor might have been a relevant consideration, it was not such that it would have affected the outcome of the assessment. Finally, the court found that the lower court had provided sufficient reasons for finding that the matter fell into the middle range of objective seriousness, and that there was no failure to provide reasons.

The court concluded that there was no error in the sentence imposed on the appellant, and therefore denied the application for leave to appeal. It emphasised the importance of carefully considering all relevant factors in assessing the objective criminality and determining the appropriate sentence, and noted that the lower court had done so in this case. The court also highlighted the need for clear and reasoned decision-making in all aspects of the criminal justice process, and found that the lower court had met this standard in this matter.

Orders