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Pham v The Queen

Pham v The Queen

Case [2014] VSCA 204 5 September 2014

Appeal

Sentence

Drug offences

Criminal Code Act 1995 (Cth)

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0222

VU LANG PHAM

THE QUEEN

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JUDGES:	MAXWELL P, OSBORN and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 May 2014
DATE OF JUDGMENT:	5 September 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 204
JUDGMENT APPEALED FROM:	DPP v Pham (Unreported, County Court of Victoria, Judge Tinney, 23 October 2013)

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CRIMINAL LAW – Appeal – Sentence – Drug offences – Importation of marketable quantity of border controlled drug – Appellant was courier – Plea of guilty – Prior convictions but limited relevance – Sentence of 8 years 6 months, non-parole period of 6 years – Whether manifestly excessive – Available sentencing range informed by current sentencing practices – Comparable cases – Quantity-based sentencing regime – Whether quantity imported significant indicator of offence seriousness – Basis of quantitative comparison – Interstate sentences markedly heavier – Sentence inconsistent with Victorian sentencing practices – Appeal allowed – Resentenced to 6 years with non-parole period of 4 years – Criminal Code Act 1995 (Cth) s 307.2(1).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J McLoughlin with Ms C Woodward	Victoria Legal Aid
For the Crown	Mr D Gurvich	Commonwealth Director of Public Prosecutions

Maxwell P:

Summary

The sentencing regime for Commonwealth drug importation offences is quantity-based.[1] Other things being equal, therefore, the larger the quantity imported the more serious is the offence.[2]
[1]Adams v The Queen (2008) 234 CLR 143, 146 [2] (‘Adams’).
[2]DPP v Holder [2014] VSCA 61 [10] citing Nguyen v The Queen (2011) 31 VR 673, 676 [2], 681-3 [34] (‘Nguyen’).

This unique characteristic of sentencing for drug offences — the same is true of sentencing under State law for trafficking[3] — makes the task of assessing the (relative) seriousness of such an offence much easier than where seriousness has to be assessed qualitatively, as for example with offences of violence.[4] This is of particular assistance when — as so often occurs — a sentencing court (or this Court on appeal) is asked to compare the case at hand with other cases said to be comparable.
[3]R v Pidoto and O’Dea (2006) 14 VR 269.
[4]See, for example, Nash v The Queen [2013] VSCA 172, [10].

The task of comparison and differentiation between cases is further simplified when the circumstances of the offence follow a familiar pattern. This appeal involves conduct of a very familiar kind — the offender performed the role of drug courier, has no relevant prior convictions, and pleaded guilty. As will appear, these are such recurrent features that a large number of sentencing decisions can be assembled — for the purposes of comparison — in which the only variable factor affecting offence seriousness is the quantity imported.

The offence in question here is the importation of a marketable quantity of a border-controlled drug. What constitutes a marketable quantity varies from drug to drug. In the case of heroin, which the appellant imported,…

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 [2014] VSCA 204
Case: [2014] VSCA 204
Decision Date: 5 September 2014

CaseChat Overview and Summary

The appellant, Pham, was convicted of importing a marketable quantity of a border controlled drug, acting as a courier. Pham entered a guilty plea and faced sentencing for his involvement in the drug importation. The case was heard in the Court of Appeal, which reviewed the sentence imposed by the trial court.

The primary legal issue was whether the original sentence of eight years and six months, with a non-parole period of six years, was manifestly excessive. The appeal centred on the relevance of the quantity of drugs imported in determining the seriousness of the offence and whether the sentence was consistent with current sentencing practices. The Court of Appeal considered the quantity-based sentencing regime and compared Pham's case with similar cases in other jurisdictions.

The Court of Appeal found that the sentence was manifestly excessive and inconsistent with Victorian sentencing practices, which tend to impose lighter sentences for drug importation offences. The court also noted that comparable cases in other jurisdictions resulted in significantly lighter sentences. After reviewing the relevant sentencing principles and the sentencing range, the Court of Appeal allowed the appeal and resentenced Pham to six years with a non-parole period of four years, in accordance with the principles outlined in the Criminal Code Act 1995.

The Court of Appeal's decision was based on the need for consistency in sentencing, particularly in relation to drug importation offences, and the requirement to ensure that sentences are not manifestly excessive. The court took into account the quantity of drugs imported, but also considered the broader sentencing context and the need to align Pham's sentence with sentences imposed in similar cases in other jurisdictions. The final orders of the court reflect the reduced sentence and non-parole period, bringing Pham's sentence in line with current sentencing practices.

Orders