R v Pham

Case [2014] QCA 287 18 November 2014

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Pham [2014] QCA 287

PARTIES:

R
v
PHAM, Kitty Thanh Nguyen
(applicant)

FILE NO/S:

CA No 179 of 2014
DC No 531 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

18 November 2014

DELIVERED AT:

Brisbane

HEARING DATE:

23 October 2014

JUDGES:

Gotterson and Morrison JJA and McMeekin J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.     Leave granted to appeal against sentence.

2.     Appeal allowed.

3.     The sentence imposed at first instance is varied to order the release of the applicant after serving six months imprisonment.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after pleas of guilty to two counts of obtaining a financial advantage by deception – where the applicant was sentenced to three years imprisonment to be released after serving nine months of that term – where the applicant was subject to threats and intimidation at the time of committing the offences – whether the sentence imposed is manifestly excessive

Crimes Act 1914 (Cth), s 4AA, s 4B, s 16A
Criminal Code Act 1995 (Cth), s 10.2, s 134.2

Bertilone v The Queen (2009) 231 FLR 383; [2009] WASCA 149, considered
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215, considered
R v Barton[2006] QCA 18, cited
R v Carter[2005] QCA 402, cited
R v Frame[2009] QCA 9, cited
R v Grice[2006] QCA 326, cited
R v Holdsworth[1993] QCA 242, cited
R v Hurst;ex parte Commonwealth DPP[2005] QCA 25, considered
R v Hutchinson[2010] QCA 22, cited
R v Lovel[2007] QCA 281, cited
R v McMillan[2005] QCA 93, cited
R v Newton (2010) 199 A Crim R 288; [2010] QCA 101, considered
R v Oag[1993] QCA 225, cited
R v Oblach (2005) 65 NSWLR 75; [2005] NSWCCA 440, considered
R v Robertson (2008) 185 A Crim R 441; [2008] QCA 164, cited
R v Ruha, Ruha & Harris; Ex parte Director of Public Prosecutions (Cth) [2011] 2 Qd R 456; (2010) 198 A Crim R 430; [2010] QCA 10, cited
R v Trocko (1988) 142 LSJS 412, considered
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited
R v Z [2005] 2 AC 467; [2005] UKHL 22, cited

COUNSEL:

The applicant appeared on her own behalf
P C Floyd for the respondent

SOLICITORS:

The applicant appeared on her own behalf
Director of Public Prosecutions (Commonwealth) for the respondent

GOTTERSON JA: I agree with the orders proposed by McMeekin J and with the reasons given by…

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 [2014] QCA 287
Case: [2014] QCA 287
Decision Date: 18 November 2014

CaseChat Overview and Summary

In the case of R v Pham, the applicant was convicted on two counts of obtaining a financial advantage by deception. The applicant had pleaded guilty to the charges. The trial judge sentenced the applicant to three years imprisonment, with a non-parole period of nine months. The applicant appealed the sentence on the grounds that it was manifestly excessive, particularly in light of the threats and intimidation the applicant was subjected to during the commission of the offences. The court was required to determine whether the sentence imposed was manifestly excessive or inadequate, considering the totality of the circumstances.

The court considered the principle that a sentence should reflect the culpability of the offender and the circumstances of the offence. The court emphasised that the applicant had pleaded guilty, which may warrant a discount on the sentence, but also noted that the applicant had been subject to threats and intimidation. The court concluded that the sentence imposed was manifestly excessive given the totality of the circumstances, including the applicant’s personal circumstances and the impact of the threats and intimidation. The court held that the sentence imposed did not adequately reflect the applicant’s level of culpability or the circumstances of the offence.

The appeal was allowed, and the sentence was varied. The court ordered that the applicant be released after serving six months imprisonment. The court emphasised that the sentence should reflect the totality of the circumstances and should not be manifestly excessive or inadequate. The court acknowledged the applicant’s personal circumstances and the impact of the threats and intimidation, but also considered the seriousness of the offences. The court held that the original sentence was manifestly excessive and varied the sentence to order the release of the applicant after serving six months imprisonment.

Orders

Orders of the court

1. Leave granted to appeal against sentence.

2. Appeal allowed.

3. The sentence imposed at first instance is varied to order the release of the applicant after serving six months imprisonment.

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.

Citations

AGLC Citation

R v Pham [2014] QCA 287

Most Recent Citation

Director of Public Prosecutions v Dalton [2020] VCC 1504

Cases citing this decision · 5 of 5 shown

Director of Public Prosecutions(Cth) v Roberts
[2021] NSWDC 472 Para 92

…Further on this issue I note in R v Pham [2014] QCA 287 (one of the "comparable" cases to which I have been referred) McMeekin J (Gotterson & Morrison JJA agreeing) said at [49]:…
CDirector of Public Prosecutions v Queale (a pseudonym)
[2021] VCC 73

…regard to the comparative sentences to which I was referred by counsel.[13] [13] Warden v R [2019] VSCA 2; R v Pham [2014] QCA 287; Jorissen v R [2017] WASCA 71; DPP (Cth) v Morrison [2016] VCC 1622; DPP v Marinakis [2016] VCC 1586; DPP v Vardouniotis [2016] VCC 368 66As was noted in Hili v R ,[14] at paragraph 4…
Director of Public Prosecutions v Dalton
[2020] VCC 1504

…Cases Cited: R v Verdins (2007) 16 VR 269; DPP v Borg [2020] VSCA 191 -- R v Brown [2020] VSCA 212n -- R v Pham [2014] QCA 287 -- McGuinness v R [2008] NSWCCA 80 Sentence: 20 months Imprisonment -- Recognisance Release Order of 24 months duration in the sum of $5,000 -- Reparation Order ---…
Warden v The Queen
[2019] VSCA 2 Para 1

…ch as Leighton v The Queen ,[22] R v Barton [23] and R v Pham .[24] [22][2010] NSWCCA 280 (‘ Leighton ’). [23][2006] QCA 18 (‘ Barton ’). [24][2014] QCA 287 (‘ Pham ’).…
R v Host
[2015] WASCA 23

…] NSWCCA 221 R v Lovel [2007] QCA 281 R v Ly [2014] NSWCCA 78 R v Minassian [2007] QCA 39 R v Newton [2010] QCA 101; (2010) 199 A Crim R 288 R v Pham [2014] QCA 287 R v Pipes [2004] NSWCCA 351 R v Rajacic [1973] VR 636 R v Ruha; Ex parte Commonwealth Director of Public Prosecutions [2010] QCA 10; [2011] 2 Qd R 45…

View all 5 citing cases →

Cases cited in this decision · 23 of 23 shown

R v Matauaina
[2011] QCA 344 Para 1

…ons made to the learned sentencing judge. [14]For example: R v Frame [2009] QCA 9 at [5]–[6]; R v Hutchinson [2010] QCA 22 at [18]; R v Matauaina [2011] QCA 344 at [13].…
Tiknius v R
[2011] NSWCCA 215 Para 1

…y: R v Oblach [2005] NSWCCA 440 at [69]–[70] per Spigelman CJ, Sully and Hulme JJ agreeing on this point. In adopting that principle in Tiknius v R [2011] NSWCCA 215 at [36] Johnson J added this observation, with which I respectfully agree:…
R v Newton
[2010] QCA 101 Para 1

…ively short non parole periods for very significant deceptions perpetrated on the Commonwealth through social security fraud. They include R v Newton [2010] QCA 101 (three months) and R v Hurst ex parte Commonwealth DPP [2005] QCA 25 (six months).…
R v Hutchinson
[2010] QCA 22 Para 1

…I am about to mention in the submissions made to the learned sentencing judge. [14]For example: R v Frame [2009] QCA 9 at [5]–[6]; R v Hutchinson [2010] QCA 22 at [18]; R v Matauaina [2011] QCA 344 at [13].…
R v Ruha, Ruha & Harris; ex parte
[2010] QCA 10 Para 1

…which the applicant was sentenced was set out in detail by this Court in R v Ruha, Ruha & Harris ; ex parte Cth DPP .[1] [1](2010) 198 A Crim R 430; [2010] QCA 10 at [32]-[37].…
Bertilone v The Queen
[2009] WASCA 149

…ive Crimes Act 1914 (Cth), s 4AA, s 4B, s 16A Criminal Code Act 1995 (Cth), s 10.2, s 134.2 Bertilone v The Queen (2009) 231 FLR 383; [2009] WASCA 149, considered House v The King (1936) 55 CLR 499; [1936] HCA 40, cited Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215, considered R v Barton [2006] QCA 18, cit…
R v Frame
[2009] QCA 9 Para 1

…here was no reference to the factors that I am about to mention in the submissions made to the learned sentencing judge. [14]For example: R v Frame [2009] QCA 9 at [5]–[6]; R v Hutchinson [2010] QCA 22 at [18]; R v Matauaina [2011] QCA 344 at [13].…
R v Robertson
[2008] QCA 164 Para 1

…Comparatives were drawn with the applicant’s offending and the cases of R v Lovel [2007] QCA 281 and R v Robertson [2008] QCA 164. Counsel ultimately submitted that a sentence of three years imprisonment with a release on a recognizance after a period of nine months should be imposed. The reparation order was not…
R v Lovel
[2007] QCA 281 Para 1

…Comparatives were drawn with the applicant’s offending and the cases of R v Lovel [2007] QCA 281 and R v Robertson [2008] QCA 164. Counsel ultimately submitted that a sentence of three years imprisonment with a release on a recognizance after a period of nine months should be imposed. The reparation order was not…
R v Tran
[2007] NSWDC 131 Para 1

…are relevant. [9]See s 20(1)(b) in Div 5 of Pt 1B of the Crimes Act 1914 (Cth). [10](2001) 207 CLR 584 at 591 per Gleeson CJ; [2001] HCA 64. And see R v Tran (2007) 172 A Crim R 436, 438 – 439 [8]; R v Ruha, Ruha & Harris ; ex parte Cth DPP [2010] QCA 10 at [49].…
R v Grice
[2006] QCA 326 Para 1

…odial sentence is usually justified and indeed required: R v Holdsworth [1993] QCA 242, R v Hurst; ex parte Commonwealth DPP [2005] QCA 25, R v Grice [2006] QCA 326, and R v Lovel [2007] QCA 281.…
R v Barton
[2006] QCA 18 Para 1

…osed here include R v McMillan [2005] QCA 93 (nine months), R v Carter [2005] QCA 402 (10 months), R v Lovel [2007] QCA 281 (nine months), R v Barton [2006] QCA 18 (10 months) and R v Grice [2006] QCA 326 (eight months). A close comparison of the facts between each of those decisions and this case is not needed.…
R v Oblach
[2005] NSWCCA 440

…McMillan [2005] QCA 93, cited R v Newton (2010) 199 A Crim R 288; [2010] QCA 101, considered R v Oag [1993] QCA 225, cited R v Oblach (2005) 65 NSWLR 75; [2005] NSWCCA 440, considered R v Robertson (2008) 185 A Crim R 441; [2008] QCA 164, cited R v Ruha, Ruha & Harris ; Ex parte Director of Public Prosecutions (Cth)…
R v Carter
[2005] QCA 402 Para 1

…auds on the Commonwealth with non parole periods roughly comparable to that imposed here include R v McMillan [2005] QCA 93 (nine months), R v Carter [2005] QCA 402 (10 months), R v Lovel [2007] QCA 281 (nine months), R v Barton [2006] QCA 18 (10 months) and R v Grice [2006] QCA 326 (eight months). A close compar…
R v McMillan
[2005] QCA 93 Para 1

…Cases involving frauds on the Commonwealth with non parole periods roughly comparable to that imposed here include R v McMillan [2005] QCA 93 (nine months), R v Carter [2005] QCA 402 (10 months), R v Lovel [2007] QCA 281 (nine months), R v Barton [2006] QCA 18 (10 months) and R v Grice [2006] QCA 326 (eight mont…
R v Hurst; ex parte
[2005] QCA 25 Para 1

…stances like these a custodial sentence is usually justified and indeed required: R v Holdsworth [1993] QCA 242, R v Hurst; ex parte Commonwealth DPP [2005] QCA 25, R v Grice [2006] QCA 326, and R v Lovel [2007] QCA 281.…
Wong v The Queen
[2001] HCA 64

…Public Prosecutions (Cth) [2011] 2 Qd R 456; (2010) 198 A Crim R 430; [2010] QCA 10, cited R v Trocko (1988) 142 LSJS 412, considered Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited R v Z [2005] 2 AC 467; [2005] UKHL 22, cited COUNSEL: The applicant appeared on her own behalf P C Floyd for the respondent SOLICIT…
R v Holdsworth
[1993] QCA 242 Para 1

…any decisions of this Court make plain that in circumstances like these a custodial sentence is usually justified and indeed required: R v Holdsworth [1993] QCA 242, R v Hurst; ex parte Commonwealth DPP [2005] QCA 25, R v Grice [2006] QCA 326, and R v Lovel [2007] QCA 281.…
R v Oag
[1993] QCA 225

…Lovel [2007] QCA 281, cited R v McMillan [2005] QCA 93, cited R v Newton (2010) 199 A Crim R 288; [2010] QCA 101, considered R v Oag [1993] QCA 225, cited R v Oblach (2005) 65 NSWLR 75; [2005] NSWCCA 440, considered R v Robertson (2008) 185 A Crim R 441; [2008] QCA 164, cited R v Ruha, Ruha & Harris ; Ex parte D…
Hasan, R v
[2005] UKHL 22

…10, cited R v Trocko (1988) 142 LSJS 412, considered Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited R v Z [2005] 2 AC 467; [2005] UKHL 22, cited COUNSEL: The applicant appeared on her own behalf P C Floyd for the respondent SOLICITORS: The applicant appeared on her own behalf Director of Public Prosecu…
House v R
[1936] HCA 40 Para 1

…sonable or plainly unjust,” that being the test under House v The King .[2] I have come to the view that it was. [2](1936) 55 CLR 499 at 504-505; [1936] HCA 40.…
[2005] 2 AC 467
[2005] 2 AC 467

…430; [2010] QCA 10, cited R v Trocko (1988) 142 LSJS 412, considered Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited R v Z [2005] 2 AC 467; [2005] UKHL 22, cited COUNSEL: The applicant appeared on her own behalf P C Floyd for the respondent SOLICITORS: The applicant appeared on her own behalf Director o…
House v The King
63 WN 176

…4AA, s 4B, s 16A Criminal Code Act 1995 (Cth), s 10.2, s 134.2 Bertilone v The Queen (2009) 231 FLR 383; [2009] WASCA 149, considered House v The King (1936) 55 CLR 499; [1936] HCA 40, cited Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215, considered R v Barton [2006] QCA 18, cited R v Carter [2005] QCA 402, cited…

Legislation cited in this decision · 2

Crimes Act 1914 (Cth)
4AA 2 mentions (from Para 1)
Criminal Code Act 1995 (Cth)
10.2 2 mentions (from Para 1)

CITATION:	R v Pham [2014] QCA 287
PARTIES:	R v PHAM, Kitty Thanh Nguyen (applicant)
FILE NO/S:	CA No 179 of 2014 DC No 531 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	18 November 2014
DELIVERED AT:	Brisbane
HEARING DATE:	23 October 2014
JUDGES:	Gotterson and Morrison JJA and McMeekin J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Leave granted to appeal against sentence. 2. Appeal allowed. 3. The sentence imposed at first instance is varied to order the release of the applicant after serving six months imprisonment.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after pleas of guilty to two counts of obtaining a financial advantage by deception – where the applicant was sentenced to three years imprisonment to be released after serving nine months of that term – where the applicant was subject to threats and intimidation at the time of committing the offences – whether the sentence imposed is manifestly excessive Crimes Act 1914 (Cth), s 4AA, s 4B, s 16A Criminal Code Act 1995 (Cth), s 10.2, s 134.2 Bertilone v The Queen (2009) 231 FLR 383; [2009] WASCA 149, considered House v The King (1936) 55 CLR 499; [1936] HCA 40, cited Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215, considered R v Barton[2006] QCA 18, cited R v Carter[2005] QCA 402, cited R v Frame[2009] QCA 9, cited R v Grice[2006] QCA 326, cited R v Holdsworth[1993] QCA 242, cited R v Hurst;ex parte Commonwealth DPP[2005] QCA 25, considered R v Hutchinson[2010] QCA 22, cited R v Lovel[2007] QCA 281, cited R v McMillan[2005] QCA 93, cited R v Newton (2010) 199 A Crim R 288; [2010] QCA 101, considered R v Oag[1993] QCA 225, cited R v Oblach (2005) 65 NSWLR 75; [2005] NSWCCA 440, considered R v Robertson (2008) 185 A Crim R 441; [2008] QCA 164, cited R v Ruha, Ruha & Harris; Ex parte Director of Public Prosecutions (Cth) [2011] 2 Qd R 456; (2010) 198 A Crim R 430; [2010] QCA 10, cited R v Trocko (1988) 142 LSJS 412, considered Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited R v Z [2005] 2 AC 467; [2005] UKHL 22, cited
COUNSEL:	The applicant appeared on her own behalf P C Floyd for the respondent
SOLICITORS:	The applicant appeared on her own behalf Director of Public Prosecutions (Commonwealth) for the respondent