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Pham v The Queen

Pham v The Queen

Case [2016] VSCA 259 28 October 2016

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0222
VU LANG PHAM	Appellant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH, BEACH and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 September 2016
DATE OF JUDGMENT:	28 October 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 259
JUDGMENT APPEALED FROM:	DPP v Pham (Unreported, County Court of Victoria, Judge Tinney, 23 October 2013)

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CRIMINAL LAW – Appeal – Sentence – Remitted by High Court for redetermination – Drug offences – Importation of marketable quantity of border controlled drug – Appellant was courier – Plea of guilty – Prior convictions but limited relevance – Medical issues – Sentence of 8 years 6 months, non-parole period of 6 years – Whether manifestly excessive – Use of comparable cases – Sentence not outside available range – Appeal dismissed – Pham v The Queen (2015) 325 ALR 400, followed – Nguyen v The Queen [2016] VSCA 198; DPP v Thomas [2016] VSCA 237, discussed – Criminal Code Act 1995 (Cth) s 307.2(1).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms L A Taylor QC with Mr J R Cass	Victoria Legal Aid
For the Crown	Mr L Crowley	Mr M Pedley, Solicitor for Public Prosecutions (Cth)

REDLICH JA

BEACH JA
KAYE JA:

Following a plea of guilty to one charge of importing a marketable quantity of a border controlled drug (heroin) contrary to s 307.2(1) of the Criminal Code 1995 (Cth), the appellant, Vu Lang Pham, was sentenced in the County Court to eight years and six months' imprisonment with a non-parole period of six years.

The appellant successfully appealed to this Court.[1] His sentence was set aside and he was re-sentenced to six years' imprisonment with a non-parole period of four years. An appeal to the High Court by the Director of Public Prosecutions was allowed, the orders of this Court were set aside and the matter was remitted to this Court for determination of whether the sentence imposed upon the appellant in the County Court was manifestly excessive.[2]
[1]Pham v The Queen (2014) 244 A Crim R 252 (‘Pham 2014’).
[2]R v Pham (2015) 325 ALR 400 (‘Pham’).

For the reasons that follow, we would dismiss the appeal.

Background of the offending

The appellant is 41 years old. He was born in Vietnam, and migrated to Australia with his family when he was 10 years old. After completing year 9 at high school, he left home. He soon took up use of illicit drugs, and developed drug dependency issues which persisted up until the present offending. He returned to Vietnam in 1997 where he married and had two children. He then migrated back to Australia in 2002.

The appellant has previously been convicted of offences concerning possession and use of drugs, and dishonesty. In 1996, the appellant was convicted of trafficking heroin. This constituted the appellant’s most relevant prior conviction. He was released on a community-based order for 12 months, on the…

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 [2016] VSCA 259
Case: [2016] VSCA 259
Decision Date: 28 October 2016

CaseChat Overview and Summary

The case of Pham v The Queen involved the appellant, who pleaded guilty to charges of drug importation, specifically the importation of a marketable quantity of a border controlled drug. The matter was heard in the Supreme Court of Victoria, where the appellant had previously been sentenced to 8 years and 6 months imprisonment, with a non-parole period of 6 years. The appellant appealed against the sentence, arguing it was manifestly excessive. The crux of the appeal was whether the original sentence was outside the available range for the offence.

The legal issues before the court were to determine if the sentence imposed was manifestly excessive and whether it was appropriate to consider comparable cases in assessing the sentence. The appellant argued that the sentence was excessive due to his medical issues and the limited relevance of his prior convictions. The Crown maintained that the sentence was within the appropriate range for the offence, given the seriousness of the crime and the appellant's role as a courier. The court needed to balance these considerations in light of the relevant legal principles and precedents.

The Supreme Court of Victoria found that the sentence was not outside the available range for the offence. The court considered the seriousness of the offence, the appellant's role, and his prior criminal history, albeit with limited relevance. The medical issues were acknowledged but did not sufficiently mitigate the sentence. The court followed the decision in Pham v The Queen, as well as more recent cases such as Nguyen v The Queen and DPP v Thomas, which emphasised the need for consistency in sentencing for similar offences. Given that the sentence fell within the range deemed appropriate by these authorities, the appeal was dismissed.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence was upheld. The court confirmed that the sentence of 8 years and 6 months imprisonment, with a non-parole period of 6 years, was not manifestly excessive and remained appropriate.

Orders