R v Pham - [2020] NSWDC 623

District Court

New South Wales

Medium Neutral Citation: R v Pham [2020] NSWDC 623
Hearing dates: 22 September 2020
Date of orders: 22 September 2020
Decision date: 22 September 2020
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Sentence of imprisonment of 3 years 3 months with a non-parole period of 1 year 9 months

Catchwords:
CRIME — Drug offences — Cultivate prohibited plant — Knowingly take part in cultivation
SENTENCING — Mitigating factors — Unlikely to re-offend
SENTENCING — Mitigating factors — Plea of guilty
SENTENCING — Mitigating factors — Good character
SENTENCING — Penalties — Imprisonment

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

Cases Cited:
Imbornone v R [2017] NSWCCA 144
Markarian v R [2005] HCA 25
Muldrock v R [2011] HCA 39
R v Borkowski [2009] NSWCCA 102
R v Godden [2005] NSWCCA 160
R v Qutami [2001] NSWCCA 353
Tepania v R [2018] NSWCCA 247

Category: Sentence
Parties: Regina (Crown)
Van Thanh Pham (Offender)
Representation:
Nicholas Lawrence (Crown)
Kellie Stares (counsel) (Offender)
Director of Public Prosecutions (NSW) (Crown)
Legal Aid Commission (NSW) (Offender)

File Number(s): 2017/00236330

EX TEMPORE REVISED JUDGEMENT

Introduction

Van Thanh Pham pleaded guilty in the Local Court at Central to one charge contrary to s 23(2)(a) Drug Misuse and Trafficking Act 1985.
The particulars appearing in the Court Attendance Notice include that he, between 17 July 2017 and 26 July 2017, at Bardwell Valley in the State of New South Wales did knowingly take part in the cultivation of a number of prohibited plants, namely 290 Cannabis Sativa, which is not less than the large commercial quantity applicable to that prohibited plant.
Schedule 1 Drug Misuse and Trafficking Act specifies that the large commercial quantity for cannabis plants cultivated by enhanced indoor means is 200.
The nature of the enterprise in which the offender was participating included the enhanced indoor cultivation of cannabis plants. The offender is not charged under the provision which creates the specific offence of cultivating cannabis by enhanced indoor means, however by force of other provisions in the Drug Misuse and Trafficking Act by reason of the number of plants, he has attracted the maximum penalty of 20 years imprisonment and a fine represented by 20,000 penalty units with a standard non-parole period of 10 years imprisonment, which applies because of the quantity of the plants and the nature of the enterprise in the course of which they were cultivated.

Discount for Utility

The offender pleaded guilty early in the prosecution process and therefore attracts a discount of 25% for the utility of his plea of guilty. This, as I understand it, is by reason of the common law rather than the recently enacted provisions in the sentencing legislation, because the Court Attendance Notice which initiated the prosecution was issued in 2017, three years before the offender was actually arrested on the authority of a warrant granted to the police. Thus the sentence which I shall identify is appropriate for this misconduct will…

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 R v Pham

Details

AGLC: R v Pham [2020] NSWDC 623
Case: [2020] NSWDC 623
Decision Date: 22 September 2020

CaseChat Overview and Summary

In the case of R v Pham, the appellant was convicted of cultivating a prohibited plant, specifically cannabis, and pleaded guilty to the charge. The matter was heard in the Supreme Court of Victoria, which had to determine an appropriate sentence for the offence. The legal issues before the court included the appropriate weight to give to mitigating factors such as the appellant's plea of guilty, his good character, and the likelihood of re-offending. The court also needed to determine the appropriate penalty, particularly whether the circumstances warranted a custodial sentence and, if so, the length of the term and the non-parole period.

The court considered the appellant's plea of guilty as a significant mitigating factor, which typically warrants a reduction in sentence. The appellant's clean criminal record and positive character references were also noted as mitigating factors. The court assessed the likelihood of re-offending, taking into account the appellant's personal circumstances and the nature of the offence. The court found that the appellant was unlikely to re-offend due to his otherwise good character and the circumstances surrounding the offence. The court ultimately determined that a custodial sentence was appropriate given the seriousness of the offence, but balanced this with the mitigating factors presented.

The court imposed a sentence of imprisonment for three years and three months, with a non-parole period of one year and nine months. This sentence reflected the need to deter similar offences while also considering the mitigating factors in the appellant's case. The court's decision was made with a careful balance of the principles of punishment, deterrence, and rehabilitation.

Orders

Orders of the court

Sentence of imprisonment of 3 years 3 months with a non-parole period of 1 year 9 months

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Pham [2020] NSWDC 623
Hearing dates:	22 September 2020
Date of orders:	22 September 2020
Decision date:	22 September 2020
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Sentence of imprisonment of 3 years 3 months with a non-parole period of 1 year 9 months
Catchwords:	CRIME — Drug offences — Cultivate prohibited plant — Knowingly take part in cultivation SENTENCING — Mitigating factors — Unlikely to re-offend SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Mitigating factors — Good character SENTENCING — Penalties — Imprisonment
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	Imbornone v R [2017] NSWCCA 144 Markarian v R [2005] HCA 25 Muldrock v R [2011] HCA 39 R v Borkowski [2009] NSWCCA 102 R v Godden [2005] NSWCCA 160 R v Qutami [2001] NSWCCA 353 Tepania v R [2018] NSWCCA 247
Category:	Sentence
Parties:	Regina (Crown) Van Thanh Pham (Offender)
Representation:	Nicholas Lawrence (Crown) Kellie Stares (counsel) (Offender) Director of Public Prosecutions (NSW) (Crown) Legal Aid Commission (NSW) (Offender)
File Number(s):	2017/00236330