R v Pham - [2010] QCA 88

SUPREME COURT OF QUEENSLAND

CITATION:

R v Pham [2010] QCA 88

PARTIES:

R
v
PHAM, Dung Ngoc
(applicant/appellant)

FILE NO/S:

CA No 309 of 2009
SC No 634 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

13 April 2010

JUDGES:

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

ORDERS:

1.    Application for leave to appeal allowed

2.    Appeal allowed

3.    Set aside the sentence imposed and instead sentence the applicant as follows:

(a)     Count 1: imprisonment for 18 months;

(b)    Count 2: imprisonment for 4 ½ years;

(c)     The applicant’s parole eligibility date be 24 March 2011.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – WHETHER SENTENCE MANIFESTLY EXCESSIVE – where applicant and co-offender were employees and stole pseudoephredine tablets from workplace to assist in production of methylamphetamine – where applicant and co-offender involved fellow employees in stealing pseudoephredine tablets from workplace – where it was accepted that applicant was more involved in operation and his conduct bore a higher degree of criminality – where applicant sentenced at same time as co-offender – where applicant pleaded guilty to and was sentenced for one count of supplying a dangerous drug (count 1) and one count of producing a dangerous drug (count 2) – where applicant was sentenced to three years imprisonment to be released on parole after serving 12 months (count 1) and six years imprisonment with parole eligibility after serving two years (count 2) – where co-offender pleaded guilty to one count of producing a dangerous drug and was sentenced to three years imprisonment suspended after serving six months –whether applicant's sentence accords with the need for parity of sentencing between co-offenders – whether sentence manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where both a parole release date and a parole eligibility date was fixed in relation to the applicant – where in accordance with s 160F Penalties and Sentences Act 1992 (Qld) there is to be only one parole release or eligibility date in relation to an offender and that parole release or eligibility date must relate to the offender’s period of imprisonment rather than particular term of imprisonment – whether primary judge erred

Penalties and Sentences Act 1992 (Qld), s 160A, s 160F

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited
R v Lau (2002) 136 A Crim R 495; [2002] QCA 542; considered

COUNSEL:

The applicant appeared on his own behalf
G P Cash for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: I…

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 [2010] QCA 88
Case: [2010] QCA 88
Decision Date: 20 April 2010

CaseChat Overview and Summary

The case of R v Pham involved the applicant, who, along with a co-offender, stole pseudoephedrine tablets from their workplace with the intent to use them in the production of methylamphetamine. The applicant was more deeply involved in the operation and his conduct was considered to bear a higher degree of criminality. Both the applicant and his co-offender pleaded guilty to charges related to producing and supplying dangerous drugs. The applicant was sentenced to imprisonment for one count of supplying a dangerous drug and another for producing a dangerous drug, with a parole eligibility date after serving two years. The co-offender, who was less involved, received a suspended sentence. The applicant appealed against the sentence, arguing that it was manifestly excessive and did not accord with the need for parity of sentencing between co-offenders. Additionally, the applicant contended that the sentencing judge erred in setting both a parole release date and a parole eligibility date, in contravention of the legislative requirement for only one such date.

The court was required to determine whether the sentence imposed on the applicant was manifestly excessive and whether it appropriately balanced the need for parity between co-offenders. The court also had to consider whether the sentencing judge's imposition of both a parole release date and a parole eligibility date constituted an error under the applicable sentencing legislation. The appeal hinged on whether the sentencing principles were correctly applied, particularly in light of the disparity in sentences between the applicant and his co-offender and the statutory requirement regarding parole dates.

In allowing the appeal, the court found that the applicant's sentence did not appropriately reflect the need for parity between co-offenders, given the significant difference in the level of involvement and criminality. The court also noted the error in the sentencing judge's imposition of both a parole release date and a parole eligibility date, which was inconsistent with the legislative requirement. Consequently, the court set aside the original sentence and re-sentenced the applicant, imposing a total imprisonment term of 4 ½ years for the two counts, with parole eligibility set for a specific date. The court's decision underscores the importance of parity in sentencing and strict adherence to statutory requirements regarding parole dates.

Orders

Orders of the court

1. Application for leave to appeal allowed

2. Appeal allowed

3. Set aside the sentence imposed and instead sentence the applicant as follows:

(a) Count 1: imprisonment for 18 months;

(b) Count 2: imprisonment for 4 ½ years;

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Pham [2010] QCA 88
PARTIES:	R v PHAM, Dung Ngoc (applicant/appellant)
FILE NO/S:	CA No 309 of 2009 SC No 634 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	20 April 2010
DELIVERED AT:	Brisbane
HEARING DATE:	13 April 2010
JUDGES:	Holmes and Chesterman JJA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal allowed 2. Appeal allowed 3. Set aside the sentence imposed and instead sentence the applicant as follows: (a) Count 1: imprisonment for 18 months; (b) Count 2: imprisonment for 4 ½ years; (c) The applicant’s parole eligibility date be 24 March 2011.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – WHETHER SENTENCE MANIFESTLY EXCESSIVE – where applicant and co-offender were employees and stole pseudoephredine tablets from workplace to assist in production of methylamphetamine – where applicant and co-offender involved fellow employees in stealing pseudoephredine tablets from workplace – where it was accepted that applicant was more involved in operation and his conduct bore a higher degree of criminality – where applicant sentenced at same time as co-offender – where applicant pleaded guilty to and was sentenced for one count of supplying a dangerous drug (count 1) and one count of producing a dangerous drug (count 2) – where applicant was sentenced to three years imprisonment to be released on parole after serving 12 months (count 1) and six years imprisonment with parole eligibility after serving two years (count 2) – where co-offender pleaded guilty to one count of producing a dangerous drug and was sentenced to three years imprisonment suspended after serving six months –whether applicant's sentence accords with the need for parity of sentencing between co-offenders – whether sentence manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where both a parole release date and a parole eligibility date was fixed in relation to the applicant – where in accordance with s 160F Penalties and Sentences Act 1992 (Qld) there is to be only one parole release or eligibility date in relation to an offender and that parole release or eligibility date must relate to the offender’s period of imprisonment rather than particular term of imprisonment – whether primary judge erred Penalties and Sentences Act 1992 (Qld), s 160A, s 160F Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited R v Lau (2002) 136 A Crim R 495; [2002] QCA 542; considered
COUNSEL:	The applicant appeared on his own behalf G P Cash for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent