R v Pham

Case [2003] SASC 386

R v PHAM
[2003] SASC 386

Court of Criminal Appeal

Coram:     Perry, Mullighan and Besanko JJ

  1. PERRY J.               This is an appeal by leave against the sentence imposed upon the appellant in the District Court following his plea of guilty to possessing heroin.

  2. Initially the appellant was charged on an information alleging possession of heroin for sale, but the Crown accepted his plea to simple possession in satisfaction of the information.

  3. The offence arose out of a police search of the appellant’s house on 19 April 2001, when a balloon containing 1.59 grams of heroin was found in a cupboard.

  4. This was not the first time that the appellant had been convicted of a heroin related offence.

  5. On 28 May 1999 in the District Court, the appellant was ordered to serve a term of imprisonment of 3 years with a non-parole period of 18 months for the offence of knowingly taking part in the supply of heroin to another person. That offence was committed on 18 December 1998, when police officers located in the appellant’s motor vehicle a balloon containing 4.79 grams of heroin.

  6. The sentence of 3 years imprisonment was suspended upon the appellant’s entry into a bond to be of good behaviour for 2 years.

  7. The sentencing judge commented, when pronouncing sentence:

    “By a narrow margin I have decided to accept your counsel’s submission that the term of imprisonment should be suspended. Do not expect to receive any further leniency if you offend again.”

  8. As for the offence the subject of the present appeal, which I will describe as the breaching offence, the sentencing judge intimated that were it not for the plea of guilty, he would have imposed a sentence of 9 months imprisonment. Having regard to the plea, he reduced that to 7 months.

  9. At the same time, he ordered that the 3 year suspended sentence which the appellant received in May 1999, be carried into effect, and that the 7 months sentence be served cumulatively upon it.

  10. Against the total head sentence of 3 years and 7 months he imposed a non-parole period of 1 year and 8 months.

  11. In his notice of appeal, the appellant complains that the sentence of 7 months for the breaching offence was manifestly excessive, and that the sentencing judge erred in failing to suspend it. In addition, he complains that the sentencing judge erred in holding that there were no proper grounds to excuse the breach of bond, and that he failed to have adequate regard to s 58(3) and s 58(4) of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”).

    Background

  12. The appellant is a 42 year old refugee from Vietnam, who came to Australia in 1992. Before leaving Vietnam he was persecuted by the authorities and was subjected to torture. He spent many years in hiding from the authorities.

  13. The sentencing judge had before him a number of medical reports, including three psychiatric reports and a forensic neuropsychological assessment performed by Mr Richard Balfour, psychologist.…

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AGLC
R v Pham [2003] SASC 386
Case
[2003] SASC 386
Decision Date

CaseChat Overview and Summary

In the case of R v Pham, the appellant, a 42-year-old refugee from Vietnam, appealed against his sentence for a breaching offence, contending that the sentence of 7 months was manifestly excessive. The appellant, who suffers from severe post-traumatic stress disorder and other health issues, unlawfully supplemented his prescribed morphine with heroin to alleviate pain. The sentencing judge considered various reports and accepted the appellant's circumstances but imposed a 7-month sentence. The appellant argued that the sentence was excessively harsh, considering his mitigating factors.

The legal issues before the court were whether the sentence of 7 months was manifestly excessive and whether the sentencing judge erred in not suspending the sentence. Additionally, the court had to consider if the sentencing judge failed to adequately consider the provisions of the Sentencing Act. The appellant argued that his use of heroin for pain relief was a significant mitigating factor warranting a lesser sentence.

The court dismissed the appeal, agreeing with the reasons for judgment of Perry J. The court found that the sentence was not manifestly excessive and that the sentencing judge had properly considered the mitigating factors, including the appellant's health and background. The court held that the sentencing judge had correctly applied the provisions of the Sentencing Act and did not err in his considerations. The court was satisfied that the sentence was proportionate to the offence and took into account the appellant's circumstances.

No further orders were made by the court beyond dismissing the appeal.

Orders

Orders of the court

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Background

Background to the litigation

In his notice of appeal, the appellant complains that the sentence of 7 months for the breaching offence was manifestly excessive, and that the sentencing judge erred in failing to suspend it. In addition, he complains that the sentencing judge erred in holding that there were no proper grounds to excuse the breach of bond, and that he failed to have adequate regard to s 58(3) and s 58(4) of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”).Background The appellant is a 42 year old refugee from Vietnam, who came to Australia in 1992. Before leaving Vietnam he was persecuted by the authorities and was subjected to torture. He spent many years in hiding from the authorities. The sentencing judge had before him a number of medical reports, including three psychiatric reports and a forensic neuropsychological assessment performed by Mr Richard Balfour, psychologist. In addition, he had before him a psychosocial report furnished by Mr Steven Thompson, the co-ordinator of a program for assisting survivors of torture and trauma. On the basis of those reports, the sentencing judge accepted that the appellant suffered from a severe post traumatic stress disorder, and that he was still suffering, or had suffered from a range of other symptoms, including depression, anxiety, insomnia, flash-backs and vivid nightmares. He accepted also that the appellant was in poor physical health and suffered from chronic headaches, a back injury and liver and kidney problems. His treatment for these conditions included the medical administration of morphine, but the appellant from time to time unlawfully supplemented this with heroin. The appellant explained his possession of the heroin the subject of the offending now in question on the footing that he was taking it to alleviate pain. Due to his poor health since arriving in Australia, the appellant has remained unemployed. He speaks no English, and receives a disability support pension. The appellant’s antecedent report records that apart from the offence of taking part in the supply of heroin, for which the sentence of 3 months imprisonment was imposed, in 1995 the appellant committed the offence of producing cannabis, and in 1998 offences of larceny and unlawful possession. For those offences he received fines without convictions being recorded. The appellant is married with two children aged 13 and 4. He was at one stage separated, but at the time he was sentenced on the offence now in question, he and his wife had reconciled.Arguments on appeal The appellant contended through his counsel Mr Schapel that the starting point for the penalty imposed with respect to the breaching offence, which was 9 months, represented a “significant proportion”, as he put it, of the maximum penalty of 2 years imprisonment, and that the circumstances of the offence did not deserve such a severe penalty. Mr Schapel argued that as the appellant was using the heroin for pain relief, this was a significant mitigating factor, and that in all the circumstances the sentence of 7 months was, on his contention, manifestly excessive.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

PERRY J MULLIGHAN J (dissent)
BESANKO J: In my opinion, this appeal should be dismissed. I agree with the reasons for judgment of Perry J and there is nothing I wish to add.JUDGMENT CITATIONSLISTED IN ORDER OF APPEARANCE IN JUDGMENT1. (1936) 55 CLR 499.2. (2000) 175 ALR 315.3. (1996) 66 SASR 530 at 535.4. (2001) 175 ALR 315 at 336.5. Thomas, Principles of Sentencing, 2nd ed, 1979, pp 244-5; R v P (1992) 39 FCR 276 at 285; 111 ALR 541 at 551.6. (1987) 47 SASR 303.7. Ibid 304.8. Ibid 304.9. Ibid 307.10. (1993) 65 A Crim R 595.11. King CJ (Perry and Duggan JJ concurring).12. (1992) 59 SASR 400.13. (Unreported) CCA, Doyle CJ, Cox and Williams JJ, 17 February 1998, judgment No S6554.14. Ibid 3.15. (1993) 60 SASR 320.16. Ibid 4.

Ratio Decidendi

Legal Principle Established

Established by: PERRY J,

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