R v Pham

Case [2005] NSWCCA 314 12 September 2005

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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 2005

JUDGMENT 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 1995

CASES 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 584

PARTIES:
REGINA v.
PHAM, Duy Tan

FILE NUMBER(S):
CCA No. 2005/707

COUNSEL:
Crown: L. Crowley
App: E. Ozen

SOLICITORS:
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

SULLY, J.
HIDDEN, J.
HALL, J.
MONDAY 12 SEPTEMBER 2005

REGINA v. DUY TAN PHAM

Judgment

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,…

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 [2005] NSWCCA 314
Case: [2005] NSWCCA 314
Decision Date: 12 September 2005

CaseChat Overview and Summary

Pham was charged with importing heroin into Australia. He was sentenced to 16 years' imprisonment, with a non-parole period of 12 years. Pham appealed the sentence on the grounds that it was manifestly excessive, given his mental condition and status as a low-level importer. The Court of Appeal considered the two-stage approach to sentencing as established in previous cases. It found that while Pham's mental condition was a mitigating factor, it did not warrant a reduction of the sentence to the extent Pham argued. The court held that Pham's involvement in the importation of a large quantity of heroin warranted a severe penalty, and the sentence was not manifestly excessive.

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.

Orders