Pham v The Queen - [2017] NSWCCA 75

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Pham v R [2017] NSWCCA 75
Hearing dates: 18 April 2017
Date of orders: 18 April 2017
Decision date: 24 April 2017
Before: Basten JA at [1];
McCallum J at [21];
Fagan J at [22]
Decision:
Refuse leave to appeal against sentence.

Catchwords: CRIME – sentencing – application for leave to appeal against severity of sentence – alleged disparity compared to sentence for co-offender – comparison of sentences without reference to disparate discounts unsound – bases for disparities explained
Category: Principal judgment
Parties: Dinh Khong Pham (Applicant 2013/250252)
Dinh Khuong Pham (Applicant 2013/354497)
Regina (Respondent)
Representation:
Counsel:
Mr A Barrie (Applicant)
Ms H Roberts (Respondent)
Solicitors:
George Sten & Co (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/250252; 2013/354497
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

5 August 2016

Before:

Norton SC DCJ

File Number(s):

2013/250252; 2013/354497

Judgment

BASTEN JA: On 5 August 2016 the applicant, Dinh Khong Pham, was sentenced by Judge Norton SC in respect of four counts of break and enter and steal, with a further 10 counts being taken into account on a Form 1. The applicant was also sentenced for a robbery involving the snatching of a handbag containing personal valuables, in the course of which the victim suffered actual bodily harm. The Form 1 with respect to that offence included a further offence of being carried in a stolen vehicle. The sentencing judge imposed a non-parole period of 7 years and 6 months, with an additional term of 3 years and 6 months.
Pursuant to an amended notice of appeal filed on 9 February 2017, the applicant alleged that the aggregate sentence was manifestly excessive and that the sentence did not “reflect parity with the sentence imposed upon the co-offender Daniel Gordon.”
It was clear from written submissions filed on 25 January 2017 that the focus of the application was upon the alleged disparity between the applicant’s sentence and that imposed on Mr Gordon. Although ground 1 was not abandoned, the emphasis on disparity was maintained at the hearing of the application for leave to appeal. For the reasons which follow, the proposed grounds were untenable and, at the conclusion of the hearing, the Court refused leave to appeal.

Ground 2 – disparity

The applicant’s case turned squarely on the difference between the aggregate sentence imposed on him and the aggregate sentence imposed on his co-offender, Mr Gordon, who was sentenced for the same principal offences. Mr Gordon’s sentence comprised a non-parole period of 3 years and 7 months, with a balance of term of 2 years and 5 months. The applicant therefore faced a total sentence of 11 years, as compared with Mr Gordon’s sentence of 6 years. Counsel placed much weight on these figures. However, the reason for the differing sentences was fully explained when one had regard to the starting points for the indicative sentences for each offence and the discounts…

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 [2017] NSWCCA 75
Case: [2017] NSWCCA 75
Decision Date: 24 April 2017

CaseChat Overview and Summary

In Pham v The Queen, the respondent, who was convicted of drug trafficking, sought leave to appeal against the severity of the sentence imposed on him by the lower court. The applicant argued that the sentence was excessively harsh when compared to the sentence given to his co-offender, who was involved in a similar crime. The High Court of Australia was tasked with determining whether the disparity in sentences warranted an appeal.

The central legal issue before the court was whether the comparison of sentences without considering the disparate discounts applied to each offender was valid. The applicant argued that the comparison of sentences without reference to the discounts was unsound and that the disparity in sentences was unjust. The court had to determine whether the applicant's argument had merit and whether the disparity in sentences was significant enough to warrant an appeal.

The court found that the comparison of sentences without considering the disparate discounts was unsound. The court noted that the bases for the disparities in sentences were explained, and the applicant had not provided any evidence to suggest that the discounts were not properly applied. The court held that the disparity in sentences did not warrant an appeal as the differences in the circumstances of the cases justified the disparity in sentences. The court also found that the applicant had not demonstrated that the sentence imposed on him was excessive or unjust.

As a result, the court dismissed the applicant's application for leave to appeal against the severity of the sentence. The court held that the disparity in sentences was justified and that the applicant had not provided any evidence to suggest that the sentence imposed on him was excessive or unjust. The sentence imposed on the applicant remained valid, and no further appeal was permitted.

Orders