NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION:
PHAM v R [2009] NSWCCA 25
FILE NUMBER(S):
2007/3140
HEARING DATE(S):
27th November 2008
JUDGMENT DATE:
17 February 2009
PARTIES:
Minh Tan Pham v R (Applicant)
Regina (Respondent)
JUDGMENT OF:
Giles JA Latham J Mathews AJ
LOWER COURT JURISDICTION:
Local Court
LOWER COURT FILE NUMBER(S):
06/11/0512
LOWER COURT JUDICIAL OFFICER:
Walmsley SC DCJ
LOWER COURT DATE OF DECISION:
25 May 2007
COUNSEL:
P Boulten SC (Applicant)
GA Farmer (Respondent)
SOLICITORS:
Watsons Solicitors and Barristers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
CATCHWORDS:
CRIMINAL LAW - Sentence appeal - Plea of guilty to Supply Large Commercial Quantity of Prohibited Drug - Parity - Whether sentence manifestly excessive - Hardship to family members and to applicant - appeal dismissed.
LEGISLATION CITED:
Drug Misuse and Trafficking Act 1986
Customs Act
CATEGORY:
Principal judgment
CASES CITED:
R v Dang [2005] NSWCCA 430
Adams v The Queen [2008] HCA 15; 82 ALJR 718
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
R v Kerr [2003] NSWCCA 234
R v Formosa [2005] NSWCCA 363
Spinks v R [2007] NSWCCA 52
Yin v R [2007] NSWCCA 350
Kauwenberghs v R [2008] NSWCCA 98
McGuiness v R [2008] NSWCCA 80
Yassine v R [2008] NSWCCA 139
Holden v R [2008] NSWCCA 100
Eken v R [2007] NSWCCA 320
Roberts v R [2007] NSWCCA 112
Elsobky v R [2006] NSWCCA 168
Le v R [2006] NSWCCA 136
TEXTS CITED:
DECISION:
1. Leave to appeal granted.
2. Appeal dismissed
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
2007/3140
GILES JA
LATHAM J
MATHEWS AJ17 FEBRUARY 2009
MINH TAN PHAM v REGINA
Judgment
GILES JA : I agree with Latham J.
LATHAM J : This an application for leave to appeal against a sentence imposed in the District Court by Walmsley SC DCJ (the Judge). The applicant was convicted by a jury of an offence of knowingly take part in the supply of a prohibited drug being not less than the large commercial quantity applicable to that drug. The drug was pseudoephedrine. The offence was alleged to have been committed between 23 and 28 August 2005. The offence is a breach of s 25(2) of the Drug Misuse and Trafficking Act 1986 for which the maximum penalty is life imprisonment. There is a standard non-parole period prescribed for that offence of 15 years.
On 25 May 2008 the Judge sentenced the applicant to a term of imprisonment made up of a non-parole period of 7 years and 6 months with a balance of sentence of 2 years and 6 months. The sentence was to commence on 29 October 2006 and the non-parole period expires on 28 April 2014.
There are three grounds of appeal as follows:
1.The sentencing process resulted in a miscarriage of justice because the applicant has been left with a justifiable sense of grievance due to the disparity between his sentence and the sentences imposed upon Du and Lam.
2.The applicant’s sentence is manifestly excessive.
3.The…
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- AGLC
- Pham v R [2009] NSWCCA 25
- Case
- [2009] NSWCCA 25
- Decision Date
CaseChat Overview and Summary
The primary legal issue the Court of Appeal had to address was whether the sentence imposed was manifestly excessive in light of the principles of parity and the unique circumstances of the case. The Court needed to consider the severity of the offence, the role of the appellant, and the impact of the sentence on the appellant and his family. This involved a comprehensive review of the sentencing principles and a comparison with similar cases to ensure that the sentence was neither too harsh nor too lenient, thereby maintaining a balance in the criminal justice system.
In delivering the judgment, the Court of Appeal emphasised that the sentence was not manifestly excessive. It found that the County Court had appropriately considered the relevant factors, including the appellant's role in the drug supply operation, the quantity of drugs involved, and the potential harm to the community. The Court also acknowledged the hardship to the appellant's family but concluded that these factors did not render the sentence unjust. The appeal was ultimately dismissed, affirming the original sentence as appropriate and proportionate to the offence committed.
No further orders were made beyond the dismissal of the appeal. The Court of Appeal's decision underscores the importance of maintaining consistency in sentencing while allowing for consideration of individual circumstances that may affect the offender and their family.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: LATHAM J
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