Phan v The Queen - [2007] NSWCCA 42

Reported Decision: 169 A Crim R 22

New South Wales

Court of Criminal Appeal

CITATION: Phan v R [2007] NSWCCA 42

HEARING DATE(S): 7 February 2007

JUDGMENT DATE:
27 February 2007

JUDGMENT OF: Simpson J at 1; Howie J at 50; Buddin J at 51

DECISION: Leave to appeal granted; appeal dismissed.

CATCHWORDS: CRIMINAL LAW - sentencing - application for leave to appeal against sentences - supply prohibited drug - possession prohibited firearm - carry firearm in a manner likely to injure a person or property - pleas of guilty - special circumstances - statutory proportions of sentences - purpose of finding of special circumstances - multiple offences - accumulated or partially accumulated terms of sentences - whether sentences manifestly excessive - procedural fairness

LEGISLATION CITED: Crimes Act 1900, s93G(1)(c)
Crimes (Sentencing Procedure) Act 1999, Part 4, Division 1A, s21A, s44(1), s44(2), s54B
Drug Misuse and Trafficking Act 1985, s3, s25(1), s29, s32(1)
Firearms Act 1996, s7(1)

CASES CITED: Fairbairn v R [2006] NSWCCA 337
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Huynh [2005] NSWCCA 220
R v Moffitt (1990) 20 NSWLR 114
R v Musgrove [2007] NSWCCA 21
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Way [2004] NSWCCA 131; 60 NSWLR 168

PARTIES: Hai Tu Truong Phan - Applicant
Crown - Respondent

FILE NUMBER(S): CCA 2006/2457

COUNSEL: H Dhanji - Applicant
R Herps - Respondent

SOLICITORS: SE O'Connor - Applicant
S Kavanagh - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/0014

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

LOWER COURT DATE OF DECISION: 12 April 2006

2006/2457

SIMPSON J
HOWIE J
BUDDIN J
Tuesday 27 February 2007

Hai Tu Truong PHAN v REGINA

Judgment

1 SIMPSON J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court on 12 April 2006 following his pleas of guilty to three charges. The charges were:

2 Pursuant to s25(1) and s32(1) of the Drug Misuse and Trafficking Act 1985, the first count carries a maximum custodial penalty of imprisonment for 15 years. Pursuant to s7(1) of the Firearms Act 1996 the second count carries a maximum penalty of imprisonment for 14 years. By Part 4, Division 1A of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”) a standard non-parole period of three years applies to this offence. Pursuant to s93G(1)(c) of the Crimes Act 1900 the third offence carries a maximum penalty of imprisonment for 10 years.

3 Sorby DCJ sentenced the applicant as follows:

Count 1: imprisonment for a fixed term of twelve months, commencing on 22 August 2005 and expiring on 21 August 2006;

Count 2: imprisonment for a fixed term of two years, commencing on 22 August…

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 v The Queen

Details

AGLC: Phan v The Queen [2007] NSWCCA 42
Case: [2007] NSWCCA 42
Decision Date: 27 February 2007

CaseChat Overview and Summary

The applicant, Phan, was convicted of multiple drug and firearm offences and sought leave to appeal against the sentences imposed by the court. The applicant had pleaded guilty to possessing and supplying a prohibited drug, possessing a prohibited firearm, and carrying a firearm in a manner likely to injure a person or property. The applicant was sentenced to a total of 12 years' imprisonment, with a non-parole period of 7 years and 6 months. The applicant contended that the sentences were manifestly excessive and that the court had failed to give adequate consideration to the special circumstances of the case.

The primary legal issues were whether the sentences imposed were manifestly excessive, whether the court had properly considered the special circumstances of the case, and whether the applicant was denied procedural fairness. The applicant argued that the court had not properly considered the special circumstances of the case, which included the applicant's vulnerable background and the possibility of rehabilitation. The applicant also contended that the sentences were manifestly excessive and that the court had failed to properly consider the principles of cumulative sentencing.

The court held that the sentences were not manifestly excessive and that the court had properly considered the special circumstances of the case. The court found that the applicant's vulnerable background and the possibility of rehabilitation were relevant factors in determining the appropriate sentence, but they did not outweigh the seriousness of the offences. The court also found that the applicant was not denied procedural fairness and that the sentences were proportionate to the seriousness of the offences. The court further held that the purpose of finding special circumstances was to provide a discount on the sentence, not to reduce the sentence to a level that was manifestly excessive.

The application for leave to appeal against the sentences was dismissed.

Orders