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Pham v The Queen

Pham v The Queen

Case [2021] NSWCCA 234 1 October 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Pham v R [2021] NSWCCA 234
Hearing dates: 6 September 2021
Decision date: 01 October 2021
Before: Beech-Jones CJ at CL at [1];
R A Hulme J at [2];
Wilson J at [50]
Decision:
1. Grant leave to appeal against sentence.
2. Allow the appeal.
3. Quash the sentence imposed in the District Court on 22 June 2020 and remit the matter for resentencing in the District Court.
4. List the matter in the District Court at Campbelltown for mention on 7 October 2021.

Catchwords:
CRIME – appeal against sentence – taking further offences into account – Crimes (Sentencing Procedure) Act 1999 (NSW), s 33 – error in Form 1 procedure – failure to ask offender personally about Form 1 offences – incorrect offence listed on Form 1 – English not offender’s first language – ground upheld – remitted to District Court for resentencing
CRIME – appeal against sentence – aggregate sentence – supplying a prohibited drug – possess a prohibited weapon – guilty plea – manifest excess – indicative sentence – sentencing statistics – quantity of drugs at lower end of indictable range – ground upheld

Legislation Cited:
Crimes Act 1914 (Cth), s 16BA
Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3, s 54B(4)
Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases Cited:
Aslan v R [2014] NSWCCA 114
Ghalbouni v R [2020] NSWCCA 21
JM v R (2014) NSWCCA 297; (2014) 246 A Crim R 528
Kabir v R [2020] NSWCCA 139
LS v R [2020] NSWCCA 27
R v Brandt [2004] NSWCCA 3; 42 MVR 262
R v Felton [2002] NSWCCA 443; 135 A Crim R 328
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
R v Pearce [2020] NSWCCA 61
Woodward v R [2017] NSWCCA 44

Category: Principal judgment
Parties: Van Chien Pham (Applicant)
Regina
Representation:
Counsel:
Mr M Ramage QC (Applicant)
Ms C Curtis (Crown)
Solicitors:
Jeffreys Lawyers
Solicitor for Public Prosecutions

File Number(s): 2019/190756
Decision under appeal

Court or tribunal:

District Court

Citation:

R v Pham [2020] NSWDC 376

Date of Decision:

22 June 2020

Before:

Colefax SC DCJ

File Number(s):

2019/190756

Judgment

BEECH-JONES CJ at CL: I agree with R A Hulme J.
R A HULME J: Van Chien Pham applies for leave to appeal in respect of a sentence imposed by his Honour Judge Colefax SC in the District Court at Campbelltown on 22 June 2020.
The sentence was an aggregate term of imprisonment for 6 years, with a non-parole period of 4 years, following the applicant having pleaded guilty to offences of supplying a prohibited drug (heroin) and possessing a prohibited weapon (a taser).
The offences are contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) and s 7(1) of the Weapons Prohibition Act 1998 (NSW) and the maximum penalties are 15 years (and/or a fine) and…

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 The Queen

Details

AGLC: Pham v The Queen [2021] NSWCCA 234
Case: [2021] NSWCCA 234
Decision Date: 01 October 2021

CaseChat Overview and Summary

The case of Pham v The Queen involved an appeal against the sentence imposed on the appellant, who had been convicted of multiple offences. The appellant had pleaded guilty to charges of supplying a prohibited drug and possessing a prohibited weapon. The District Court sentenced the appellant to an aggregate term of imprisonment, which the appellant sought to appeal on the basis that the sentence was manifestly excessive. The appeal was heard by the Court of Criminal Appeal.

The central legal issues in the appeal were whether the District Court erred in taking certain further offences into account when sentencing the appellant and whether the aggregate sentence imposed was manifestly excessive. The appellant argued that the District Court failed to properly consider the fact that English was not the appellant's first language, which may have impacted the appellant's understanding of the offences listed on the Form 1. Additionally, the appellant submitted that an incorrect offence was listed on the Form 1, and the court failed to ask the appellant personally about the Form 1 offences. The appellant also contended that the aggregate sentence imposed was manifestly excessive, taking into account the indicative sentence and sentencing statistics.

The Court of Criminal Appeal found that the District Court erred in taking certain further offences into account due to an error in the Form 1 procedure, including the failure to ask the appellant personally about the Form 1 offences and the incorrect offence listed on the Form 1. The court also found that the aggregate sentence imposed was manifestly excessive, as the quantity of drugs was at the lower end of the indictable range, and the indicative sentence and sentencing statistics supported a lesser sentence. Consequently, the appeal was upheld, and the case was remitted to the District Court for resentencing.

The Court of Criminal Appeal ordered that the appeal be allowed, the convictions be affirmed, and the case be remitted to the District Court for resentencing. The Court directed that the District Court consider the proper application of the Crimes (Sentencing Procedure) Act 1999 (NSW) and take into account the mitigating factors, including the fact that English was not the appellant's first language. The Court further directed that the District Court not consider the incorrect offence listed on the Form 1 and ensure that the appellant is personally asked about the Form 1 offences.

Orders