R v Ho Thien Chuong Pham - [2011] NSWDC 74

District Court

New South Wales

Medium Neutral Citation: R v Ho Thien Chuong PHAM [2011] NSWDC 74
Decision date: 14 July 2011
Jurisdiction: Criminal
Before: Cogswell SC DCJ
Decision:
Non-parole period of 9 years 6 months. Balance of term of 4 years

Catchwords: CRIMINAL LAW - sentence- supply large commercial quantity of prohibited drug - maximum penalty of life imprisonment - plea of guilty at earliest opportunity - thirty kilograms of cocaine - falls within middle of range of objective seriousness - financial pressure - drug issues - pre-sentence report - no relevant criminal history - courier with no higher engagement in supplying the drug - special circumstances for adjusting the normal ratio between non-parole period and the balance of the term
Legislation Cited: Drug Misuse and Trafficking Act 1985 s 25(2)
Cases Cited: Elmir v The Queen (2009) 193 A Crim R 87
Stevens v The Queen [2007] NSWCCA 252
The Queen v Olbrich (1999) 199 CLR 270
Category: Sentence
Parties: Regina
Ho Thien Chuong Pham
Representation: Mr S Wilkinson for Mr Pham
Mr Vautin for the Director of Public Prosecutions

File Number(s): 2010/225740

SENTENCE

1. I am sentencing a young man who had financial problems including a drug debt. He resorted to an illegal venture to relieve his problem. But the illegal venture which he resorted to was a crime carrying a maximum sentence of life imprisonment.

2. The crime is called supplying a large commercial quantity of a prohibited drug. It is an offence against s 25(2) of the Drug Misuse and Trafficking Act 1985. As I said, Parliament regards this crime as so serious that it has fixed a maximum penalty of life imprisonment.

3. Another indication of how serious Parliament regards this offence as being is that it has also fixed a standard non-parole period of fifteen years imprisonment for the crime.

4. It is important for a judge in sentencing someone to briefly set out what happened to bring about the charges against the person.

5. In this case I should add that Mr Pham has pleaded guilty to the charge and he pleaded guilty at the earliest opportunity which he had available to him.

6. In June last year Australian Federal Police detected a shipment of some 240 kilograms of cocaine which had been brought into Australia from Mexico. It was located in Victoria. Police removed all the cocaine and replaced the drug with what is described as an inert substance of similar appearance. Police tracked the shipment to New South Wales. They arrested a person in New South Wales on 4 July 2010. Mr Pham was not regarded as being involved in the importation of the cocaine at all or in the transportation of the substitute into New South Wales.

7. However on 6 July 2010 an undercover police officer contacted Mr Pham on his mobile phone. They reached an arrangement for the police officer to deliver thirty kilograms of the substitute substance for cocaine. They agreed to meet at Botany. Police…

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: [2011] NSWDC 74
Decision Date: 14 July 2011

CaseChat Overview and Summary

The defendant, Ho Thien Chuong Pham, faced a criminal court in Australia for the offence of supplying a large commercial quantity of a prohibited drug, specifically thirty kilograms of cocaine. Pham entered a guilty plea at the earliest opportunity, which was a mitigating factor in the sentencing. The court had to determine an appropriate sentence considering the maximum penalty for the offence, which is life imprisonment, and various mitigating and aggravating factors.

The court examined several legal issues, including the objective seriousness of the offence, which fell within the middle of the range for such crimes. It also considered Pham's background, including his lack of a criminal history and his personal circumstances, such as financial pressure and drug issues. The pre-sentence report highlighted Pham's role as a courier rather than a higher-level supplier, which was another mitigating factor. The court recognised Pham's early guilty plea and the potential for rehabilitation as special circumstances warranting an adjustment to the normal ratio between the non-parole period and the balance of the sentence.

The court concluded that Pham's role in the drug supply chain, his personal background, and the mitigating factors justified a sentence that, while severe, recognised the need for punishment and deterrence. The court set a non-parole period of nine years and six months, followed by a balance of the term of four years. This sentence reflects the gravity of the offence while considering Pham's mitigating factors and the principles of justice.

Orders

Orders of the court

Non-parole period of 9 years 6 months. Balance of term of 4 years

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.

Medium Neutral Citation:	R v Ho Thien Chuong PHAM [2011] NSWDC 74
Decision date:	14 July 2011
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	Non-parole period of 9 years 6 months. Balance of term of 4 years
Catchwords:	CRIMINAL LAW - sentence- supply large commercial quantity of prohibited drug - maximum penalty of life imprisonment - plea of guilty at earliest opportunity - thirty kilograms of cocaine - falls within middle of range of objective seriousness - financial pressure - drug issues - pre-sentence report - no relevant criminal history - courier with no higher engagement in supplying the drug - special circumstances for adjusting the normal ratio between non-parole period and the balance of the term
Legislation Cited:	Drug Misuse and Trafficking Act 1985 s 25(2)
Cases Cited:	Elmir v The Queen (2009) 193 A Crim R 87 Stevens v The Queen [2007] NSWCCA 252 The Queen v Olbrich (1999) 199 CLR 270
Category:	Sentence
Parties:	Regina Ho Thien Chuong Pham
Representation:	Mr S Wilkinson for Mr Pham Mr Vautin for the Director of Public Prosecutions
File Number(s):	2010/225740