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: Ghalbouni v R [2020] NSWCCA 21
JM v R (2014) NSWCCA 297; (2014) 246 A Crim R 528
R v Brandt [2004] NSWCCA 3; 42 MVR 262
R v Felton [2002] NSWCCA 443; 135 A Crim R 328
Category: Principal judgment Parties: Van Chien Pham (Applicant)
ReginaRepresentation: Counsel:
Solicitors:
Mr M Ramage QC (Applicant)
Ms C Curtis (Crown)
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
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BEECH-JONES CJ at CL: I agree with R A Hulme J.
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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.
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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).
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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…
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- AGLC
- Pham v The Queen [2021] NSWCCA 234
- Case
- [2021] NSWCCA 234
- Decision Date
CaseChat Overview and Summary
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
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
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