R v Pham

Case [2012] QCA 169 22 June 2012

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Pham & Ors [2012] QCA 169

PARTIES:

R
v
PHAM, Dzu Le
(applicant)

R
v
AHMED, Humza Ali
(applicant)

R
v
HIGHAM, Jaymin Ray
(applicant/appellant)

R
v
LEE, Seung Kyu
(applicant)

FILE NO/S:

CA No 29 of 2012
CA No 43 of 2012
CA No 52 of 2012
CA No 68 of 2012
DC No 203 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Applications

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

22 June 2012

DELIVERED AT:

Brisbane

HEARING DATE:

29 May 2012

JUDGES:

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

ORDERS:

1.       In relation to the application by Seung Kyu Lee in CA No 68 of 2012:

(a)     The Registrar of the District Court is directed to amend the court order sheet attached to the indictment as follows –

(i)      Amend the order in relation to counts 3 and 4 by deleting the reference to “2 years” and substituting “three and a half years” for the period in which the applicant must not commit another offence punishable by imprisonment if to avoid being dealt with for the suspended term of imprisonment;

(ii)     Amend the order that the sentence of 18 months be imposed on count 2 by adding that the term be suspended after a period of 12 months imprisonment; and you must not commit another offence punishable by imprisonment within a period of three and a half years if to avoid being dealt with for the suspended term of imprisonment;

(b)     The Registrar of the District Court is directed to amend the verdict and judgment record of Seung Kyu Lee to reflect the amendments in paragraphs 1(a) and 1(b);

(c)      The application is otherwise dismissed.

2.       In relation to the application by Jaymin Ray Higham in CA No 52 of 2012:

(a)     The Registrar of the District Court is directed to amend the court order sheet attached to the indictment as follows:

(i)      Amend the notation “Note: record should note that the period of 8 days on remand was taken into account to reduce the sentence from 4 years imprisonment to 18 months” by removing “8 days” and inserting instead “901 days”;

(b)     The application is granted;

(c)      The appeal against sentence is allowed;

(d)     The sentences imposed on counts 1, 2 and 3 are set aside and in lieu concurrent sentences of 6 months, wholly suspended, are imposed for an operational period of 18 months.

3.       In relation to CA No 29 of 2012, the application by Dzu Le Pham is dismissed.

4.       In relation to CA No 43 of 2012, the application by Humza Ali Ahmed is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where offences involved deprivation of liberty, assault occasioning bodily harm whilst armed and in company, assault occasioning bodily harm in…

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 [2012] QCA 169
Case: [2012] QCA 169
Decision Date: 22 June 2012

CaseChat Overview and Summary

The appeals before the court involved several applicants who had been convicted of various offences including deprivation of liberty, assault occasioning bodily harm whilst armed and in company, assault occasioning bodily harm in company and unlawful assault. The applicants had varying levels of involvement in the offences and had entered guilty pleas. The applicants sought to appeal against the sentences imposed on them, arguing that they were either manifestly excessive or inadequate. Additionally, there were concerns about the disparity between the sentences imposed on the different applicants.

The central legal issue before the court was whether the sentences imposed on the applicants were manifestly excessive or inadequate, taking into account the nature and circumstances of the offences as well as the varying levels of involvement of the applicants. The court was also required to consider the principle of parity, which demands that sentences imposed on co-offenders should be similar unless there are substantial and compelling circumstances that justify a difference. The court examined the sentences in light of these factors, assessing whether there was any error in the sentencing process that warranted interference.

The court found that the sentences imposed on two of the applicants were manifestly excessive and did not reflect the appropriate balance between punishment and rehabilitation. The court also found that the sentences imposed on these applicants were disproportionate to the sentences imposed on the other applicants, given their varying levels of involvement in the offences. The court set aside the sentences and imposed new sentences that it deemed more appropriate. In the case of the other applicants, the court found no grounds for interference with the sentences imposed, and their appeals were dismissed.

The orders of the court included amendments to the sentences of two applicants, setting aside their original sentences and imposing new sentences. The court also directed the Registrar of the District Court to amend the court order sheets and records to reflect these changes. The appeals of the other applicants were dismissed, and no further orders were made in their regard.

Orders

Orders of the court

1. In relation to the application by Seung Kyu Lee in CA No 68 of 2012:

(a) The Registrar of the District Court is directed to amend the court order sheet attached to the indictment as follows –

(i) Amend the order in relation to counts 3 and 4 by deleting the reference to “2 years” and substituting “three and a half years” for the period in which the applicant must not commit another offence punishable by imprisonment if to avoid being dealt with for the suspended term of imprisonment;

(ii) Amend the order that the sentence of 18 months be imposed on count 2 by adding that the term be suspended after a period of 12 months imprisonment; and you must not commit another offence punishable by imprisonment within a period of three and a half years if to avoid being dealt with for the suspended term of imprisonment;

(b) The Registrar of the District Court is directed to amend the verdict and judgment record of Seung Kyu Lee to reflect the amendments in paragraphs 1(a) and 1(b);

2. In relation to the application by Jaymin Ray Higham in CA No 52 of 2012:

(a) The Registrar of the District Court is directed to amend the court order sheet attached to the indictment as follows:

(i) Amend the notation “Note: record should note that the period of 8 days on remand was taken into account to reduce the sentence from 4 years imprisonment to 18 months” by removing “8 days” and inserting instead “901 days”;

(b) The application is granted;

(d) The sentences imposed on counts 1, 2 and 3 are set aside and in lieu concurrent sentences of 6 months, wholly suspended, are imposed for an operational period of 18 months.

3. In relation to CA No 29 of 2012, the application by Dzu Le Pham is dismissed.

4. In relation to CA No 43 of 2012, the application by Humza Ali Ahmed is dismissed.

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 [2012] QCA 169

Most Recent Citation

Walley v The Commissioner of Police [2021] QDC 279

Cases citing this decision · 1 of 1 shown

Walley v The Commissioner of Police
[2021] QDC 279 Para 1

…tencing discretion for offences of assault occasioning bodily harm even for youthful, first-time offenders who plead guilty.[6] [6] See R v Pham& Ors [2012] QCA 169; R v Stone [2010] QCA 157; R v Lude; R v Love [2007] QCA 319; R v Kelley [2018] QCA 18…

View all 1 citing cases →

Cases cited in this decision · 11 of 11 shown

R v Omar
[2012] QCA 23 Para 1

…Before this Court, in addition to the authorities referred to the sentencing judge, the respondent relied on R v Omar [2012] QCA 23. Ahmed also cited Omar in contending that the sentences imposed were manifestly excessive, while also referring to Blair, El-Masri, Hsu and Hsu and Middleton and Johns . Pham also l…
R v. Lude; R v Love
[2007] QCA 319 Para 1

…QCA 64, R v Hsu and Hsu [1998] QCA 257, R v Graham [2006] QCA 106, R v Middleton and Johns (2006) 165 A Crim R 1; [2006] QCA 92, R v Lude; R v Love [2007] QCA 319 and R v McGregor and Payne [2002] QCA 334.…
R v Graham
[2006] QCA 106 Para 1

…thorities including R v Lofts and A-G (Qld) [1996] QCA 159, R v Adams; ex parte A‑G (Qld) [1998] QCA 64, R v Hsu and Hsu [1998] QCA 257, R v Graham [2006] QCA 106, R v Middleton and Johns (2006) 165 A Crim R 1; [2006] QCA 92, R v Lude; R v Love [2007] QCA 319 and R v McGregor and Payne [2002] QCA 334.…
R v Middleton and Johns
[2006] QCA 92 Para 1

…Adams; ex parte A‑G (Qld) [1998] QCA 64, R v Hsu and Hsu [1998] QCA 257, R v Graham [2006] QCA 106, R v Middleton and Johns (2006) 165 A Crim R 1; [2006] QCA 92, R v Lude; R v Love [2007] QCA 319 and R v McGregor and Payne [2002] QCA 334.…
R v Watkins
[2003] QCA 437 Para 1

…ontended for were R v El-Masri [2003] QCA 52, R v Blair, unreported, Court of Criminal Appeal, Qld, CA No 49 of 1990, 7 December 1990 and R v Watkins [2003] QCA 437. It was submitted that, if the range contended for by the prosecution for Higham was accepted as being otherwise appropriate, the court would sentenc…
R v El-Masri
[2003] QCA 52 Para 1

…The authorities relied upon at sentence by the Crown to support the range it contended for were R v El-Masri [2003] QCA 52, R v Blair, unreported, Court of Criminal Appeal, Qld, CA No 49 of 1990, 7 December 1990 and R v Watkins [2003] QCA 437. It was submitted that, if the range contended for by the prosecution…
R v McGregor & Payne
[2002] QCA 334 Para 1

…v Graham [2006] QCA 106, R v Middleton and Johns (2006) 165 A Crim R 1; [2006] QCA 92, R v Lude; R v Love [2007] QCA 319 and R v McGregor and Payne [2002] QCA 334.…
R v Hsu & Hsu
[1998] QCA 257 Para 1

…dge to a number of other authorities including R v Lofts and A-G (Qld) [1996] QCA 159, R v Adams; ex parte A‑G (Qld) [1998] QCA 64, R v Hsu and Hsu [1998] QCA 257, R v Graham [2006] QCA 106, R v Middleton and Johns (2006) 165 A Crim R 1; [2006] QCA 92, R v Lude; R v Love [2007] QCA 319 and R v McGregor and Payne…
R v Adams
[1998] QCA 64 Para 1

…nsel referred the sentencing judge to a number of other authorities including R v Lofts and A-G (Qld) [1996] QCA 159, R v Adams; ex parte A‑G (Qld) [1998] QCA 64, R v Hsu and Hsu [1998] QCA 257, R v Graham [2006] QCA 106, R v Middleton and Johns (2006) 165 A Crim R 1; [2006] QCA 92, R v Lude; R v Love [2007] QCA…
R v Amituanai
[1995] QCA 80 Para 1

…the level of injury in fact occasioned is a relevant factor to the exercise of the sentencing discretion ( R v Amituanai (1995) 78 A Crim R 588, 598; [1995] QCA 80), it is not the solely determinative factor in coming to the appropriate sentence to impose in any particular case. The risk of further potential har…
[1996] QCA 159
[1996] QCA 159 Para 1

…Defence counsel referred the sentencing judge to a number of other authorities including R v Lofts and A-G (Qld) [1996] QCA 159, R v Adams; ex parte A‑G (Qld) [1998] QCA 64, R v Hsu and Hsu [1998] QCA 257, R v Graham [2006] QCA 106, R v Middleton and Johns (2006) 165 A Crim R 1; [2006] QCA 92, R v Lude; R v Love…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v Pham & Ors [2012] QCA 169
PARTIES:	R v PHAM, Dzu Le (applicant) R v AHMED, Humza Ali (applicant) R v HIGHAM, Jaymin Ray (applicant/appellant) R v LEE, Seung Kyu (applicant)
FILE NO/S:	CA No 29 of 2012 CA No 43 of 2012 CA No 52 of 2012 CA No 68 of 2012 DC No 203 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Applications
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	22 June 2012
DELIVERED AT:	Brisbane
HEARING DATE:	29 May 2012
JUDGES:	Holmes and Gotterson JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. In relation to the application by Seung Kyu Lee in CA No 68 of 2012: (a) The Registrar of the District Court is directed to amend the court order sheet attached to the indictment as follows – (i) Amend the order in relation to counts 3 and 4 by deleting the reference to “2 years” and substituting “three and a half years” for the period in which the applicant must not commit another offence punishable by imprisonment if to avoid being dealt with for the suspended term of imprisonment; (ii) Amend the order that the sentence of 18 months be imposed on count 2 by adding that the term be suspended after a period of 12 months imprisonment; and you must not commit another offence punishable by imprisonment within a period of three and a half years if to avoid being dealt with for the suspended term of imprisonment; (b) The Registrar of the District Court is directed to amend the verdict and judgment record of Seung Kyu Lee to reflect the amendments in paragraphs 1(a) and 1(b); (c) The application is otherwise dismissed. 2. In relation to the application by Jaymin Ray Higham in CA No 52 of 2012: (a) The Registrar of the District Court is directed to amend the court order sheet attached to the indictment as follows: (i) Amend the notation “Note: record should note that the period of 8 days on remand was taken into account to reduce the sentence from 4 years imprisonment to 18 months” by removing “8 days” and inserting instead “901 days”; (b) The application is granted; (c) The appeal against sentence is allowed; (d) The sentences imposed on counts 1, 2 and 3 are set aside and in lieu concurrent sentences of 6 months, wholly suspended, are imposed for an operational period of 18 months. 3. In relation to CA No 29 of 2012, the application by Dzu Le Pham is dismissed. 4. In relation to CA No 43 of 2012, the application by Humza Ali Ahmed is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where offences involved deprivation of liberty, assault occasioning bodily harm whilst armed and in company, assault occasioning bodily harm in…