CITATION: REGINA v. PHAM [2005] NSWCCA 314
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): Thursday 25 August 2005
JUDGMENT DATE:
12 September 2005JUDGMENT OF: Sully J at 1; Hidden J at 3; Hall J at 4
DECISION: (a) grant leave to appeal against sentence; (b) appeal allowed; (c) sentence set below quashed; (d) in lieu thereof, sentence the applicant to imprisonment for eight years to commence 3 May 2004 and to expire on 2 May 2012; (e) set a non-parole period four years and six months to date from 3 May 2004 and to expire on 2 November 2008; (f) the applicant will accordingly be eligible for release on parole on 2 November 2008.
CATCHWORDS: Criminal law - import heroin - two-stage approach to sentencing - applicant's mental condition - mitigating factor - contended that the sentence was manifestly excessive - low level drug importer - factors in s.16A, Crimes Act
LEGISLATION CITED: Customs Act 1901 (Cth)
Crimes Act 1912 (Cth)
Evidence Act 1995CASES CITED: Markarian [2005] HCA 25
Wong & Leung (2001) 207 CLR 584
Dodd (1991) 57 A. Crim R. 349
Hemsley [2004] NSWCCA 228
Scognamiglio (1991) 56 A. Crim. R. 81
Henry (1999) 46 NSWLR 346
Jiminez [1999] NSWCCA 7
Tsiaras (1996) 1 VR 398
Lauritsen (2000) 114 A. Crim. R. 333
Israil [2002] NSWCCA 255
Pearson [2004] NSWCCA 129
Pearce (CCA, unreported 1 November 1996)
Engert (1999) 84 A. Crim. R. 67
Letteri (CCA, unreported 18 March 1992)
Wong & Leung (1999) 48 NSWLR 340
Bezan (2004) 147 A. Crim. R. 430
Mas Rivadavia [2004] NSWCCA 284
Wong (2001) 207 CLR 584PARTIES: REGINA v.
PHAM, Duy TanFILE NUMBER(S): CCA No. 2005/707
COUNSEL: Crown: L. Crowley
App: E. OzenSOLICITORS: Crown: Commwealth Director of Public Prosecutions
App: Greenfields
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 04/11/0754
LOWER COURT JUDICIAL OFFICER: Hock DCJ.
2005/707
MONDAY 12 SEPTEMBER 2005SULLY, J.
HIDDEN, J.
HALL, J.
1 SULLY J: In this particular case I am content to concur in the orders proposed by Hall J; but I do so because I am in general agreement with his Honour’s analysis and conclusions respecting grounds 2 and 3.
2 I wish to reserve expressly my position respecting ground 1. I am not at all sure that the reasoning of the joint judgment of Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen [2005] HCA 25 disavows in any cut-and-dried way what is described normally as a “two-tier” approach to sentencing. It is neither necessary nor useful to say now anything more upon the topic.
3 HIDDEN, J: I agree with the orders proposed by Hall J. However, like Sully J, I do so on the basis of grounds 2 and 3. I share Sully J’s misgivings about ground 1.
4 HALL, J: The applicant, aged 27 years, was sentenced in the District Court (Hock,…
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- R v Pham [2005] NSWCCA 314
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- [2005] NSWCCA 314
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CaseChat Overview and Summary
The court noted that Pham had played a significant role in the importation of the heroin, and that his mental condition did not absolve him of responsibility for his actions. The court also considered the factors outlined in section 16A of the Crimes Act, which include the gravity of the offence, the need for denunciation, and the need for specific and general deterrence. The court found that these factors outweighed any mitigating factors, and that the sentence was appropriate. The appeal was dismissed, and Pham's sentence was upheld.
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