Pham v The Queen - [2020] NSWCCA 269

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Pham v R [2020] NSWCCA 269
Hearing dates: 5 August 2020
Date of orders: 23 October 2020
Decision date: 23 October 2020
Before: Meagher JA at [1]
Fullerton J at [2]
Button J at [53]
Decision:
1. Leave to appeal is granted.
2. The appeal is dismissed.

Catchwords:
CRIME – appeals – appeal against sentence - knowing participation in the cultivation of a large commercial quantity of cannabis plants - knowingly direct the activities of a criminal group – whether the sentencing judge erred in finding that the cultivation offence was aggravated pursuant to s 21A(2)(n) of the Crimes (Sentencing Procedure) Act

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
DPP (NSW) v Cornwall [2007] NSWCCA 359
Legge v R [2007] NSWCCA 244
SS v R; JC v R [2009] NSWCCA 114

Category: Principal judgment
Parties: Hung Khac Pham (Applicant)
The Crown (Respondent)
Representation:
Counsel:
R Pontello SC (Applicant)
E Wilkins SC (Crown)
Solicitors:
Birchgrove Legal (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2018/213945
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

28 November 2019

Before:

Bourke SC DCJ

File Number(s):

2018/213945

Judgment

MEAGHER JA: I agree that the orders proposed by Fullerton J should be made, for the reasons that her Honour gives. Having regard to the factual matters described by her Honour at [48]-[50] it is not necessary to resolve any perceived differences in decisions of this Court in relation to the construction and application of the Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(n).
FULLERTON J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal an aggregate sentence of 7 years’ imprisonment with a non-parole period of 3 years and 10 months imposed in the District Court on 28 November 2019 after he entered pleas of guilty to two offences in the Local Court on 20 March 2019.
The first of those offences alleged the applicant’s knowing participation in the cultivation of a large commercial quantity of cannabis plants (being 2,640 plants), contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) (“the cultivation offence”). Under the Schedule to the Act, a large commercial quantity of cannabis plants cultivated by enhanced indoor means is 200 plants. The applicant’s participation in that offence extended between 19 May 2017 and 12 July 2018.
The cultivation offence carries a maximum penalty of 20 years’ imprisonment and a standard non-parole period of 10 years. A charge of possess prohibited drug, being cannabis in the amount of 343.6g found in one of the premises being utilised for the growing of cannabis, was included on a Form 1. It was taken into account in the sentence of 6 years’ imprisonment with a non-parole period of 3 years and 4 months indicated for the cultivation offence

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 [2020] NSWCCA 269
Case: [2020] NSWCCA 269
Decision Date: 23 October 2020

CaseChat Overview and Summary

In Pham v The Queen, the appellant was convicted of participating in the cultivation of a large commercial quantity of cannabis plants and knowingly directing the activities of a criminal group. The sentencing judge found the cultivation offence was aggravated under section 21A(2)(n) of the Crimes (Sentencing Procedure) Act, increasing the sentence. The appellant appealed the sentence on the basis that the sentencing judge erred in finding that the cultivation offence was aggravated. The appeal was heard by the New South Wales Court of Criminal Appeal.

The legal issue before the court was whether the sentencing judge erred in finding that the cultivation offence was aggravated. The appellant argued that the cultivation offence was not aggravated because it was not established that the appellant had a leadership role in the criminal activity, as required by section 21A(2)(n) of the Crimes (Sentencing Procedure) Act. The appellant submitted that the evidence did not establish that the appellant was more than a follower and that the sentencing judge erred in finding otherwise. The Crown submitted that the appellant was a leader in the criminal activity and that the sentencing judge was correct in finding that the cultivation offence was aggravated.

The court found that the sentencing judge did not err in finding that the cultivation offence was aggravated. The court held that the appellant was a leader in the criminal activity and that the evidence established that the appellant had a leadership role in the cultivation of the cannabis plants. The court found that the sentencing judge was correct in finding that the cultivation offence was aggravated, and that the sentence imposed was appropriate. The appeal was dismissed.

The court did not make any further orders.

Orders