Pham v The Queen; Tang v The Queen - [2012] VSCA 101

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

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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)

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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.

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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…

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.

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Details

Case: [2012] VSCA 101
Decision Date: 25 May 2012

CaseChat Overview and Summary

In Pham v The Queen; Tang v The Queen, the applicants, Pham and Tang, challenged their sentences following pleas of guilty to drug importation and attempted possession respectively. The High Court of Australia considered the fairness and proportionality of their sentences, which were both set at 19 years with a non-parole period of 14 years. Tang admitted to importing a significant quantity of various drugs, while Pham was found guilty of attempting to possess a commercial quantity of border controlled substances. Both applicants argued that their sentences were excessive and that the court should have taken into account the uncertain role each played in the criminal operation.

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