Pham v R

Case [2009] NSWCCA 25 17 February 2009

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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 AJ
17 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…

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 25
Case: [2009] NSWCCA 25
Decision Date: 17 February 2009

CaseChat Overview and Summary

The case of Pham v R involved the appellant, Pham, who appealed against the sentence imposed by the County Court for his guilty plea to supplying a large commercial quantity of a prohibited drug. The appeal was heard by the Court of Appeal, which was tasked with determining whether the sentence was manifestly excessive and if it caused undue hardship to the appellant and his family. The appeal centred on the principle of parity, which requires sentences to be comparable within the criminal justice system, and the specific circumstances of the case, including the impact on the appellant's family.

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