Pham v R

In the matter of Pham v R, the appellant, Le Vuong, sought to appeal against the sentence imposed by the primary judge. Vuong was found guilty of two counts of supplying a commercial quantity of a prohibited drug, namely MDMA and cocaine, and was sentenced to imprisonment with a non-parole period of 8 years and a balance of term of 4 years. The appeal raised two primary issues: whether the sentencing judge relied upon cases infected by the "Muldrock error" and whether the sentence was manifestly excessive. The Court of Appeal considered these issues in turn.

The appellant argued that the sentencing judge may have been influenced by the decisions in Efstathiadis v R and Ly v R, which were potentially infected by the "Muldrock error." However, the Court of Appeal found that the sentencing judge did not refer to these cases in the sentence judgment and, therefore, the argument was without foundation. The Court noted that the primary judge had acknowledged the distinctions between those cases and the present case, indicating that the decisions were not considered persuasive or relevant. The Court further explained that simply following the principles set out in R v Way before the Muldrock decision does not equate to an error, as long as the sentencing judge did not treat the standard non-parole period as mandatory or determinative.

Regarding the second issue, the Court examined whether the sentence was manifestly excessive or plainly unjust. The Court concluded that while the sentence was heavy, it was not unreasonable or plainly unjust. The Court acknowledged the seriousness of the offences and the quantity of drugs involved but also considered the appellant's cooperation with authorities and other mitigating factors. The Court held that there was no basis for interfering with the discretion of the sentencing judge.

The appeal was dismissed, and the original sentence was upheld.