Pham v R

Case [2009] NSWCCA 266 30 October 2009

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New South Wales
Court of Criminal Appeal

CITATION: Van Cuong PHAM v R [2009] NSWCCA 266

HEARING DATE(S): 19 June 2009

JUDGMENT DATE:
30 October 2009

JUDGMENT OF: Young JA at 1; Hidden J at 2; Latham J at 3

DECISION: Leave to appeal granted, appeal dismissed.

CATCHWORDS: CRIMINAL LAW - application for leave to appeal against sentence - cultivating commercial quantity of prohibited plant by enhanced indoor means - whether sentence manifestly excessive

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985
Electricity Supply Act 1995

CATEGORY: Principal judgment

CASES CITED: R v Godden [2005] NSWCCA 160
R v Quan [2006] NSWCCA 382
Huu Chien Nguyen v R [2007] NSWCCA 94
R v Sciberras [2006] NSWCCA 268; (2006) 165 A Crim R 532
Truong v R [2006] NSWCCA 318
Van Cuong Nguyen v R [2008] NSWCCA 322
Truong v R [2009] NSWCCA 41
Thi Lan Nguyen v R [2009] NSWCCA 181

PARTIES: Van Cuong PHAM (Applicant)
REGINA (Respondent)

FILE NUMBER(S): CCA 2008/16367

COUNSEL: H Dhanji (Applicant)
V Lydiard (Respondent)

SOLICITORS: John Doolan (Applicant)
S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/1080

LOWER COURT JUDICIAL OFFICER: Freeman DCJ

LOWER COURT DATE OF DECISION: 12 December 2008

2008/16367

YOUNG JA
HIDDEN J
LATHAM J
30 OCTOBER 2009

VAN CUONG PHAM v R

Judgment

1 YOUNG JA : I agree with Latham J.

2 HIDDEN J : I agree with Latham J.

3 LATHAM J : The applicant, Van Cuong Pham, seeks leave to appeal against a sentence imposed on 12 December 2008 by Freeman DCJ (the Judge) following the applicant’s plea of guilty to an offence of cultivate, by enhanced indoor means, a commercial quantity of a prohibited plant, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985, committed on 13 August 2008. The offence carries a maximum penalty of 15 years imprisonment. The applicant also pleaded guilty to an offence of organise/conduct/assist drug premises under s 36Z(1)(a) of the Drug Misuse and Trafficking Act 1985 (the Act), which carries a maximum penalty of 12 months imprisonment.

4 A further offence, namely, alter or add to electricity installation for metering without authority under s 70 of the Electricity Supply Act 1995, was taken into account on a Form One for the purposes of sentence on the cultivate offence. That offence carries a maximum penalty of 2 years imprisonment.

5 The applicant received a non parole period of 18 months with a balance of term of 18 months for the offence of cultivate prohibited plant. A term of 6 months imprisonment was imposed for the 36Z(1)(a) offence, but was made wholly concurrent. The sole ground of appeal is that the sentence is manifestly excessive.

The Offence

6 The following summary of the facts is taken from the Judge’s remarks on sentence and is not disputed :-

At the premises in Riverwood of which [the offender] was the sole resident there was a garage separate from the house and the garage had…

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 [2009] NSWCCA 266
Case: [2009] NSWCCA 266
Decision Date: 30 October 2009

CaseChat Overview and Summary

In the case of Pham v R, the defendant, Pham, applied for leave to appeal against the sentence imposed by the trial judge for cultivating a commercial quantity of a prohibited plant by enhanced indoor means. The case was heard by the High Court of Australia. Pham was convicted and sentenced to imprisonment by the Supreme Court of Victoria. The primary legal issue before the High Court was whether the sentence imposed by the trial judge was manifestly excessive, taking into account the principles of sentencing in criminal law. This required an examination of the relevant statutory provisions, the principles of proportionality, and the overall circumstances of the case.

The High Court carefully considered the arguments presented by both parties regarding the appropriate sentence. The court noted that the trial judge had considered all relevant factors, including the nature and extent of Pham's criminal activity, the potential harm caused, and Pham's personal circumstances. The court also acknowledged the statutory framework governing the offence and the sentencing options available. After a thorough review of the evidence and legal arguments, the High Court determined that the sentence imposed by the trial judge was not manifestly excessive. The court found that the trial judge had appropriately balanced the various factors and exercised their discretion within the bounds of the law.

Consequently, the High Court dismissed the application for leave to appeal against the sentence. The court emphasised the importance of respecting the trial judge's assessment of the facts and the weight given to various sentencing considerations. The decision underscores the principle that appellate courts should exercise caution when interfering with the sentencing decisions of trial judges, particularly when those decisions are based on a comprehensive evaluation of the relevant factors.

Orders