Pham v The Queen - [2011] NSWCCA 3

Court of Criminal Appeal

New South Wales

Case Title: Pham v R

Medium Neutral Citation: [2011] NSWCCA 3

Hearing Date(s): 3 December 2010

Decision Date: 07 February 2011

Jurisdiction:

Before:
McClellan CJ at CL at 1, Hislop J at 2, Price J at 22

Decision:
Leave to appeal granted; appeal dismissed.

Catchwords:

Legislation Cited:
Drug Misuse and Trafficking Act 1985
Criminal Procedure Act 1986
Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Texts Cited:

Category: Principal judgment

Parties:
Tuan Van Pham (Applicant)
Regina (Crown)

Representation

- Counsel:
Counsel:
G. Nicholson QC (Applicant)
D. Arnott SC (Crown)

- Solicitors:
Solicitors:
Audix Legal (Applicant)
Solicitor for Public Prosecutions (Crown)

File number(s): 2008/16408

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Keleman DCJ

- Date of Decision: 10 September 2009

- Citation:

- Court File Number(s) 2008/16408

Publication Restriction:

Judgment

McCLELLAN CJ at CL : I agree with Hislop J.
HISLOP J : The applicant pleaded guilty to a charge pursuant to the Drug Misuse and Trafficking Act 1985, s23(2)(a), that on 14May 2008 at Blair Athol, New South Wales, he did cultivate a number of prohibited plants by enhanced indoor means, to wit 305 cannabis plants, which was not less than the large commercial quantity applicable to that prohibited plant. The maximum penalty for the offence was imprisonment for 20years. A standard non parole period of 10years imprisonment was applicable.
On 10September 2009 the applicant was sentenced to imprisonment in respect of the offence for a non parole period of five years to commence on 14May 2008 and to expire on 13May 2013 with a balance of term of three years to commence on 14May 2013 and expire on 13May 2016.
His Honour dealt, under s166 of the Criminal Procedure Act 1986, with a related offence of possess prohibited drug (cannabis leaf). The applicant pleaded guilty to this charge and was convicted. No other penalty was imposed (s10A Crimes (Sentencing Procedure) Act 1999).
The applicant has sought leave to appeal against sentence on the grounds that:
"1. The sentence is excessive in the circumstances.
2. The court erred in determining the role of the applicant in the commission of the offence on a mistaken view of the evidence.
3. The court erred in finding that the applicant was aware that his wife was the owner of the premises on a mistaken view of the evidence.
4. The court erred in finding that the applicant was motivated by greed without due regard to the evidence.
5. The court erred in determining the applicant gave false evidence during the sentence proceedings.
6. The sentence proceedings miscarried by virtue of the conduct of the legal representative for the prosecution."
Certain facts were agreed in writing. Those facts, in short, were that at about 7.20am on 14May 2008 the police attended premises at Blair Athol and spoke to the applicant who was standing outside those premises. The applicant and the police entered the premises in which was located a sophisticated hydroponic set-up. The applicant…

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 [2011] NSWCCA 3
Case: [2011] NSWCCA 3
Decision Date: 07 February 2011

CaseChat Overview and Summary

Tuan Van Pham appealed against his sentence for cultivating a large commercial quantity of cannabis, contending that the sentence was excessive and that the District Court judge erred in various aspects of his fact-finding. The Crown opposed the application. The Court of Criminal Appeal considered several grounds of appeal, including the assertion that the District Court erred in finding the applicant's evidence lacked credibility. The Court found no error in the District Court's fact-finding process and held that the sentence was appropriate. The Court concluded that the applicant's evidence was indeed implausible and that the sentence imposed was not excessive. Consequently, the Court granted leave to appeal but dismissed the appeal. The Court ordered that leave to appeal be granted and the appeal be dismissed.

Orders