SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0290
| SON ANH PHAM | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
S APCR 2010 0388
| VAN QUYEN TANG | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
---
JUDGES: | REDLICH and HARPER JJA and CURTAIN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 March 2012 | |
DATE OF JUDGMENT: | 25 May 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 101 | |
JUDGMENTS APPEALED FROM: | R v Son Anh Pham (Unreported, County Court of Victoria, Judge Punshon, 23 July 2010) and R v Ken Tang (Unreported, County Court of Victoria, Judge Punshon, 27 November 2009) | |
---
CRIMINAL LAW – Sentence – Pleas of guilty by Tang to three counts of importing a commercial quantity of a border controlled substance being 71.564 kilograms of cocaine, 9.757 kilograms of ecstasy and 29.285 kilograms of methamphetamine – Pleas of not guilty by Pham to three counts of attempting to possess a commercial quantity of a border controlled substance – Role of each applicant within the criminal hierarchy uncertain – Each applicant sentenced to a total effective sentence of 19 years’ imprisonment with a non-parole period of 14 years – Parity – Whether sentences manifestly excessive – Whether cumulation in relation to sentence for Tang inappropriately severe – Fresh evidence – Hardship to offender when family overseas – Applications dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant Pham | Mr G M Hughan | Andrew George Solicitors |
| The Applicant Tang appeared in person | ||
| For the Crown | Ms A C Fox | Director of Public Prosecutions (Cth) |
REDLICH JA:
The applicant Tang pleaded guilty to three counts of importing a commercial quantity of a border controlled drug pursuant to s 307.1(1) of the Criminal Code Act 1995. The applicant Pham was found guilty on three counts of attempting to possess a commercial quantity of border controlled drugs pursuant to s 307.5(1) of the Criminal Code Act. They were part of a highly organised and sophisticated criminal organisation involving many participants.
Both applicants complained that the sentencing judge had misplaced their position within the criminal enterprise, overstated their role, and failed to recognise the full extent of the role played by the other. I would make a number of observations about these contentions
The nature of the charge
Firstly, there was no distinction of substance to be drawn from the fact that one was convicted of importation and the other of attempting to possess a border controlled drug. Both carried maximum sentences of imprisonment for life. Whether the conduct of one was more serious than the other depended upon their conduct and position within the hierarchy, not upon the difference in the charge laid.
The offender’s actions and position within the hierarchy
Secondly, it will be useful in some circumstances to distinguish the positions occupied by offenders within a hierarchical criminal organization as a means of determining the offender’s level of culpability. For example a courier will generally attract a more lenient sentence than a principal within a criminal drug hierarchy. The characterization of an offender’s position may…
Keep reading for free
Create a free CaseChat account to read Pham v The Queen; Tang v The Queen and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2012] VSCA 101
- Decision Date
CaseChat Overview and Summary
The primary legal issues revolved around whether the sentences were manifestly excessive and whether the cumulation of sentences for Tang was unduly severe. The applicants argued that the sentences did not reflect their actual roles in the criminal activities and that the hardship caused by their incarceration, particularly for Tang who had family overseas, should have been considered. The Court needed to determine if the sentences were proportionate to the gravity of the offences and whether there were any grounds for the sentences to be reviewed.
In dismissing the applications, the Court found that the sentences were not manifestly excessive. The Court acknowledged the severity of the crimes and the quantities of drugs involved, which justified lengthy custodial sentences. The Court also noted that the sentences reflected the seriousness of the offences and the need to deter similar criminal activities. Furthermore, the Court held that the sentences did not improperly cumulate the offences for Tang and that the hardship caused by incarceration, while regrettable, did not warrant a reduction in sentence. The Court was satisfied that the sentences were proportionate and appropriate given the circumstances.
The Court dismissed the applications and upheld the original sentences. The final orders confirmed the sentences of 19 years with a non-parole period of 14 years for both Pham and Tang, reflecting the Court's determination that the sentences were neither manifestly excessive nor inappropriately severe.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.