Phan, Thanh Dinh v The Queen - [2013] NSWCCA 49

Court of Criminal Appeal

New South Wales

Case Title: PHAN, Thanh Dinh v R

Medium Neutral Citation: [2013] NSWCCA 49

Hearing Date(s): 13 April 2012

Decision Date: 05 March 2013

Before: McClellan JA [1]
Hidden J at [2]
Hislop J at [17]

Decision:
Leave to appeal granted, appeal dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - two charges of importing commercial quantity of pseudoephedrine - sentences accumulated upon sentences already being served for previous offences of a similar kind - totality - whether aggregate non-parole period excessive

Legislation Cited: - Criminal Code Act 1995 (Cth)
- Customs Act 1901 (Cth)
- Drug Misuse and Trafficking Act 1986 (NSW)

Cases Cited: - Hili v The Queen; Jones v The Queen [2010] HCA 45, 242 CLR 520
- R v Jerrard (1991) 56 A Crim R 297
- Power v The Queen (1974) 131 CLR 623
- Deakin v The Queen (1984) 11 A Crim R 88
- Bugmy v The Queen 169 CLR 525

Category: Principal judgment

Parties: Thanh Dinh Phan (applicant)
Regina (Crown)

Representation

- Counsel: Counsel:
S Odgers SC (applicant)
CB Craigie SC with LA Fernandez (Crown)

- Solicitors: Solicitors:
Tully & Chiper Solicitors (applicant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2008/5501

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Williams DCJ

- Date of Decision: 03 July 2009

- Court File Number(s): 2008/5501

JUDGMENT

McCLELLAN JA: I agree with Hidden J.
HIDDEN J: The applicant, Thanh Dinh Phan, pleaded guilty in the District Court to two charges of importing a commercial quantity of pseudoephedrine, an offence under s 307.11(1) of the Criminal Code Act 1995 (Cth), which carries a maximum sentence of 25 years imprisonment. Williams DCJ sentenced him on the first count to imprisonment for 8 years, commencing on 28 February 2011, and on the second count to imprisonment for 11 years, commencing on 28 February 2012. His Honour fixed a non-parole period of 8 years. The overall sentence, then, was 12 years with a non-parole period of 8 years, commencing on 28 February 2011. The sentences were accumulated upon sentences which the applicant was already serving, and the significance of that commencement date will become apparent. He seeks leave to appeal against the sentences.
Given the limited scope of the application, it is unnecessary to examine in any detail the facts of the offences or the applicant's subjective case. Judge Williams also dealt with several co-offenders, charged with different but related offences, but no question of parity arises and their cases need not be considered.
The two offences occurred in March 2007. Two consignments, both containing very large quantities of pseudoephedrine, arrived in Australia. Judge Williams was satisfied that the applicant was the principal in the importation, describing him as "the business end in Australia of whatever was occurring elsewhere."
Significantly, at the time these offences were committed the applicant was on bail in respect of similar offences, albeit less serious, committed in 2003. He and his wife were involved…

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 Phan, Thanh Dinh v The Queen

Details

AGLC: Phan, Thanh Dinh v The Queen [2013] NSWCCA 49
Case: [2013] NSWCCA 49
Decision Date: 05 March 2013

CaseChat Overview and Summary

The appellant, Phan, Thanh Dinh, was sentenced to a total of 21 years imprisonment for two charges of importing a commercial quantity of pseudoephedrine. The sentences were cumulative, meaning they were added to the sentences already being served for previous offences of a similar nature. The appeal was focused on whether the cumulative non-parole period was excessive and whether the totality of the sentences was disproportionate. The court was required to determine whether the aggregate non-parole period was reasonable and whether the sentences taken as a whole were unjust.

The court considered the principles of sentencing, particularly the need for proportionality and deterrence, and the circumstances of the appellant's previous convictions. The court also examined the impact of the cumulative sentences on the appellant's prospects for rehabilitation and reintegration into society. The court found that the sentences were not excessive and were proportionate to the seriousness of the offences, taking into account the appellant's criminal history and the need for general deterrence. The court also found that the aggregate non-parole period was reasonable and that the sentences, when considered as a whole, were not unjust.

In conclusion, the appeal was dismissed, and the original sentences were upheld. The court found that the sentences were proportionate to the seriousness of the offences and that the aggregate non-parole period was reasonable. The court emphasised the need for general deterrence and the importance of considering the appellant's criminal history when determining the appropriate sentence. The court also noted that the appellant had an extensive history of similar offending, which warranted a significant custodial sentence. The final orders were that the appeal be dismissed and the original sentences be upheld.

Orders