Pham v The Queen

The case of Pham v The Queen involved an appeal against the sentence imposed on the appellant, who had been convicted of multiple offences. The appellant had pleaded guilty to charges of supplying a prohibited drug and possessing a prohibited weapon. The District Court sentenced the appellant to an aggregate term of imprisonment, which the appellant sought to appeal on the basis that the sentence was manifestly excessive. The appeal was heard by the Court of Criminal Appeal.

The central legal issues in the appeal were whether the District Court erred in taking certain further offences into account when sentencing the appellant and whether the aggregate sentence imposed was manifestly excessive. The appellant argued that the District Court failed to properly consider the fact that English was not the appellant's first language, which may have impacted the appellant's understanding of the offences listed on the Form 1. Additionally, the appellant submitted that an incorrect offence was listed on the Form 1, and the court failed to ask the appellant personally about the Form 1 offences. The appellant also contended that the aggregate sentence imposed was manifestly excessive, taking into account the indicative sentence and sentencing statistics.

The Court of Criminal Appeal found that the District Court erred in taking certain further offences into account due to an error in the Form 1 procedure, including the failure to ask the appellant personally about the Form 1 offences and the incorrect offence listed on the Form 1. The court also found that the aggregate sentence imposed was manifestly excessive, as the quantity of drugs was at the lower end of the indictable range, and the indicative sentence and sentencing statistics supported a lesser sentence. Consequently, the appeal was upheld, and the case was remitted to the District Court for resentencing.

The Court of Criminal Appeal ordered that the appeal be allowed, the convictions be affirmed, and the case be remitted to the District Court for resentencing. The Court directed that the District Court consider the proper application of the Crimes (Sentencing Procedure) Act 1999 (NSW) and take into account the mitigating factors, including the fact that English was not the appellant's first language. The Court further directed that the District Court not consider the incorrect offence listed on the Form 1 and ensure that the appellant is personally asked about the Form 1 offences.