R v Pham

Case [2009] QCA 242 28 August 2009

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Pham [2009] QCA 242

PARTIES:

R
v
PHAM, Joseph Duy
(applicant)

FILE NO/S:

CA No 62 of 2009
DC No 2730 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

28 August 2009

DELIVERED AT:

Brisbane

HEARING DATE:

8 July 2009

JUDGES:

Keane and Chesterman JJA and Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made.

ORDER:

Leave to appeal against sentence is refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to one charge of distributing, one charge of possessing and two charges of knowingly possessing child exploitation material – applicant was sentenced to two years imprisonment to be suspended after six months with an operational period of two years – whether sentence was manifestly excessive

STATUTES – ACTS OF PARLIAMENT – OPERATION AND EFFECT OF STATUTES – RETROSPECTIVE OPERATION – where the relevant sentencing provisions changed between the time the offence was committed and the time of sentencing – where learned sentencing judge applied sentencing provisions as at the time of sentencing – whether the amendments altered substantive or procedural provisions – whether amendments had retrospective operation

Acts Interpretation Act 1954 (Qld), s 14H(1), 20C
Criminal Code 1899 (Qld), s 11(2), s 228C, s 228D
Criminal Code and Other Acts Amendment Act 2008 (Qld)
Penalties and Sentences Act 1992 (Qld), s 9(2), s 9(6A), s 9(6B), s 204, s 211
Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 (Qld)
Sexual Offences (Protection of Children) Amendment Act 2003 (Qld)

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, considered
Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7, applied
R v Breeze (1999)106 A Crim R 441; [1999] QCA 303, cited
R v Carlton [2009] QCA 241, cited
R v Carson[2008] QCA 268, considered
R v Flew[2008] QCA 290, cited
R v Mason and Saunders [1998] 2 Qd R 186; [1997] QCA 421, distinguished
R v S[1999] QCA 311, followed
R v Salsone; ex parte A-G (Qld)[2008] QCA 220, considered
R v Truong [2000] 1 Qd R 663; [1999] QCA 21; followed
Rodway v The Queen (1990) 169 CLR 515; [1990] HCA 19, applied
Siganto v The Queen (1997) 194 CLR 656; [1998] HCA 1974, cited
Siganto v R (1997) 97 A Crim R 60, considered

COUNSEL:

A P Simpson for the applicant
M B Lehane for the respondent

SOLICITORS:

Nguyen Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: I have had the advantage of reading in draft the reasons for judgment prepared by Chesterman JA. I agree with the reasons and the order proposed by his Honour. I wish, however, to associate myself specifically…

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 [2009] QCA 242
Case: [2009] QCA 242
Decision Date: 28 August 2009

CaseChat Overview and Summary

The applicant, Pham, appealed against his sentence after pleading guilty to one charge of distributing, one charge of possessing and two charges of knowingly possessing child exploitation material. Pham was sentenced to two years imprisonment to be suspended after six months, with an operational period of two years. Pham submitted that the sentence was manifestly excessive. The appeal against sentence was heard in the Court of Appeal. The court was required to decide whether the sentence imposed on Pham was manifestly excessive. The court was also required to decide whether the amendments to the relevant sentencing provisions had retrospective effect.

The court considered that Pham's sentence was not manifestly excessive. The court held that Pham's offending was serious and warranted a significant sentence. However, the court considered that the sentence was not manifestly excessive because it was within the range of sentences that could be imposed for such offending. The court also considered that the amendments to the relevant sentencing provisions did not have retrospective effect. The court held that the amendments altered procedural provisions and did not affect the substantive provisions of the legislation. Therefore, the amendments did not have retrospective effect and the sentencing judge was entitled to apply the sentencing provisions as at the time of sentencing.

The appeal against sentence was dismissed. Leave to appeal against sentence was refused.

Orders

Orders of the court

Leave to appeal against sentence is refused

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 [2009] QCA 242

Most Recent Citation

R v Lloyd [2011] QCA 12

Cases citing this decision · 11 of 11 shown

R v Rbo
[2024] QCA 214

…CA 444, cited R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, cited R v Pham (2009) 197 A Crim R 246; [2009] QCA 242, applied R v RAP (2014) 244 A Crim R 477; [2014] QCA 228, explained R v WBX [2023] QCA 151, explained COUNSEL: J R Hunter KC for the appellant/applicant C M Cook for the respondent SOLICITORS…
R v Mogg
[2024] QCA 125 Para 14

…o long as all relevant considerations are given due attention, the discretionary character of sentencing will inhibit appellate interference.” [6][2009] QCA 242 at [7]. [7](2005) 228 CLR 357 at 406 [133].…
R v Kampf
[2021] QCA 47 Para 13

…further offences. When the applicant reoffended he was required to undergo the punishment for the previous offence.[26] [25](2009) 197 A Crim R 246; [2009] QCA 242. [26](2009) 197 A Crim R 246 at 259 [69]; [2009] QCA 242 at [69] (Chesterman JA; Keane JA and Wilson J agreeing).…
R v HBT
[2018] QCA 227 Para 21

…Olsen v Sims .[114] [109][1997] QCA 316. [110][1998] 2 Qd R 186; 1997] QCA 421. [111][2000] 1 Qd R 663; [1999] QCA 21. [112](2009) 197 A Crim R 246; [2009] QCA 242. [113][2010] 2 Qd R 340; [2009] QCA 241. [114](2010) 206 A Crim R 454; [2010] NTCA 8.…
R v Hutchinson
[2018] QCA 29

…s [1998] 2 Qd R 186; [1997] QCA 421, cited R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited R v Pham (2009) 197 A Crim R 246; [2009] QCA 242, followed R v Truong [2000] 1 Qd R 663; [1999] QCA 21, followed R v West [2011] QCA 76, considered COUNSEL: D R Kinsella for the applicant J A Wooldridge for the respondent…
R v BNQ
[2016] QDC 113 Para 1

…In R v Pham (2009) 197 A Crim R 246, the majority, Justices Keane and Chesterman, followed Truong and Carlton . Justice Keane, as his Honour then was, made clear at paragraph 5:…
R v Nikora
[2014] QCA 192

…onsidered R v Johnson [2011] QCA 78, considered R v Pham (2009) 197 A Crim R 246; [2009] QCA 242, cited R v Ross [2009] QCA 7, considered R v Sanderson [1998] QCA 237, considered R v Sheedy; ex parte A-G (Qld) [2007] QCA 183, considered R v Vessey; ex parte A-G (1996) 86 A Crim R 290; [1996] QCA 11, cited COUNSEL…
R v Koster
[2012] QCA 302

…, considered R v Mason & Saunders [1998] 2 Qd R 186, [1997] QCA 421, considered R v Pham (2009) 197 A Crim R 246, [2009] QCA 242, considered R v Pierpoint (2001) 126 A Crim R 305, [2001] QCA 493, considered R v Quick; ex parte A-G (Qld) (2006) 166 A Crim R 588, [2006] QCA 477, considered R v Tracey [2010] QCA 97,…
R v Hampson
[2011] QCA 132 Para 1

…he offending here can, thus, be distinguished readily from the offending in R v Carson .[2] [2][2008] QCA 268; R v Carlton [2009] QCA 241; R v Pham [2009] QCA 242 and R v Salsone; ex parte A-G (Qld) [2008] QCA 220.…
R v Lloyd
[2011] QCA 12 Para 1

…hose situation is discussed in the authorities were relatively young men without prior criminal convictions. Those who had convictions such as Pham [2009] QCA 242 saw that circumstance exacerbate the sentence (though Pham was dealt with for distributing as well as possessing material). Another feature of some of…
Olsen v Sims
[2010] NTSC 28

…0) Tas R 199; Nguyen v The Queen (2003) 13 NTLR 62; Siganto v R (1997) 141 FLR 73, applied R v Hallam (1998) 102 A Crim R 546; R v Pham [2009] QCA 242, cited R v Bowen [2008] VSCA 33; Commissioner of Taxation v Price [2006] 2 Qd R 316; R v Ronen (2006) 161 A Crim R 300, considered REPRESENTATION: Counsel: Appella…

View all 11 citing cases →

Cases cited in this decision · 19 of 19 shown

R v Carlton
[2009] QCA 241 Para 1

…The same point was recently argued before this Court, R v Carlton [2009] QCA 241 in which judgment is reserved. However, counsel for the applicant declined to advance the ground, even formally, pending delivery of judgment in Carlton . Mr Simpson’s concern was that should the application succeed on other grounds…
R v Flew
[2008] QCA 290 Para 1

…Truong has been regarded as authoritative, and followed. In R v Flew [2008] QCA 290 Fraser JA (with whom Atkinson J agreed) said:…
R v Carson
[2008] QCA 268 Para 1

…which dealt with appeals against sentences imposed for distributing CE material, R v Salsone; ex parte Attorney-General [2008] QCA 220 and R v Carson [2008] QCA 268.…
R v Salsone; ex parte A-G (Qld)
[2008] QCA 220 Para 1

…o two decisions of this Court which dealt with appeals against sentences imposed for distributing CE material, R v Salsone; ex parte Attorney-General [2008] QCA 220 and R v Carson [2008] QCA 268.…
R v Whyte
[2006] NSWCCA 75

…arliament and works down in mathematical steps ( AB (1999) 198 CLR 111 at 121-122 [16]; Wong (2001) 207 CLR 584 at 611 [74]-[75], 612 [77]; R v Whyte (2002) 55 NSWLR 252 at 278 [160]-[166]). The process is not so scientific. Because there are a multitude of factors to be taken into account, many of them pulling succes…
Markarian v The Queen
[2005] HCA 25

…ct 1997 (Qld) Sexual Offences (Protection of Children) Amendment Act 2003 (Qld) Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, considered Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7, applied R v Breeze (1999)106 A Crim R 441; [1999] QCA 303, cited R v Carlton [2009] QCA 241, cited R v Carson [2008…
R v Osenkowski
[2005] SASC 142

…encing there is sometimes a legitimate role for differences of judicial view. These may occasionally favour the extension of leniency, as Osenkowski ((1982) 30 SASR 212 at 212-213 per King CJ) shows. Necessarily, there must also be room for the views of a judicial officer who takes a more punitive view of all of the…
Weininger v The Queen
[2003] HCA 14

…ly in opposite directions, the evaluation, in terms of time of imprisonment, quantity of fine or other sanction, is necessarily imprecise ( Weininger (2003) 212 CLR 629 at 645 [50]). Human judgment is inevitably invoked. In sentencing there is sometimes a legitimate role for differences of judicial view. These may oc…
Wong v The Queen
[2001] HCA 64

…activity in which one starts from the maximum fixed by Parliament and works down in mathematical steps ( AB (1999) 198 CLR 111 at 121-122 [16]; Wong (2001) 207 CLR 584 at 611 [74]-[75], 612 [77]; R v Whyte (2002) 55 NSWLR 252 at 278 [160]-[166]). The process is not so scientific. Because there are a multitude of fac…
R v S
[1999] QCA 311 Para 1

…which was subsequently abandoned. Mr Simpson, who appeared pro bono for the applicant, accepted the correctness of R v Truong [1989] QCA 21 and R v S [1999] QCA 311 as establishing that amendments to s 9 operated retrospectively.…
AB v The Queen
[1999] HCA 46

…hanical, numerical, arithmetical or rigid activity in which one starts from the maximum fixed by Parliament and works down in mathematical steps ( AB (1999) 198 CLR 111 at 121-122 [16]; Wong (2001) 207 CLR 584 at 611 [74]-[75], 612 [77]; R v Whyte (2002) 55 NSWLR 252 at 278 [160]-[166]). The process is not so scienti…
R v Breeze
[1999] QCA 303 Para 1

…The point also emerged in The Queen v Breeze [1999] QCA 303. The Court (Pincus and Davies JJA, Demack J) rejected the doubt expressed in Truong about the correctness of Mason but nevertheless thought that Truong should be followed. It is important that the court in Breeze expressly endorsed Truong . It did howeve…
R v Truong
[1999] QCA 21

…d R v S [1999] QCA 311, followed R v Salsone; ex parte A-G (Qld) [2008] QCA 220, considered R v Truong [2000] 1 Qd R 663; [1999] QCA 21; followed Rodway v The Queen (1990) 169 CLR 515; [1990] HCA 19, applied Siganto v The Queen (1997) 194 CLR 656; [1998] HCA 1974, cited Siganto v R (1997) 97 A Crim R 60, conside…
Siganto v the Queen
[1998] HCA 74 Para 1

…It noted a submission that the reasoning in Mason was inconsistent with what had been said in Siganto v The Queen (1997) 194 CLR 656 and went on (669):…
R v Mason and Saunders
[1997] QCA 421

…241, cited R v Carson [2008] QCA 268, considered R v Flew [2008] QCA 290, cited R v Mason and Saunders [1998] 2 Qd R 186; [1997] QCA 421, distinguished R v S [1999] QCA 311, followed R v Salsone; ex parte A-G (Qld) [2008] QCA 220, considered R v Truong [2000] 1 Qd R 663; [1999] QCA 21; followed Rodway v The Queen…
Rodway v The Queen
[1990] HCA 19

…) [2008] QCA 220, considered R v Truong [2000] 1 Qd R 663; [1999] QCA 21; followed Rodway v The Queen (1990) 169 CLR 515; [1990] HCA 19, applied Siganto v The Queen (1997) 194 CLR 656; [1998] HCA 1974, cited Siganto v R (1997) 97 A Crim R 60, considered COUNSEL: A P Simpson for the applicant M B Lehane for the r…
Maxwell v Murphy
[1957] HCA 7

…nt Act 2003 (Qld) Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, considered Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7, applied R v Breeze (1999)106 A Crim R 441; [1999] QCA 303, cited R v Carlton [2009] QCA 241, cited R v Carson [2008] QCA 268, considered R v Flew [2008] QCA 290, cited R v Maso…
Mr Simpson, who appeared pro bono for the applicant, accepted the correctness of R v Truong
[1989] QCA 21 Para 1

…made a ground of appeal which was subsequently abandoned. Mr Simpson, who appeared pro bono for the applicant, accepted the correctness of R v Truong [1989] QCA 21 and R v S [1999] QCA 311 as establishing that amendments to s 9 operated retrospectively.…
[1998] HCA 1974
[1998] HCA 1974

…9] QCA 21; followed Rodway v The Queen (1990) 169 CLR 515; [1990] HCA 19, applied Siganto v The Queen (1997) 194 CLR 656; [1998] HCA 1974, cited Siganto v R (1997) 97 A Crim R 60, considered COUNSEL: A P Simpson for the applicant M B Lehane for the respondent SOLICITORS: Nguyen Lawyers for the applicant Director o…

Legislation cited in this decision · 7

Acts Interpretation Act 1954 (Qld)
14H(1), 20C 3 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
9(2) 2 mentions (from Para 1)
Criminal Code and Other Acts Amendment Act 2008 (Qld)
1 mention
Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 (Qld)
1 mention
Penalties and Sentences Act 1999 (Qld)
1 mention (from Para 1)
Sentencing Act 1995 (WA)
1 mention (from Para 1)
Sexual Offences (Protection of Children) Amendment Act 2003 (Qld)
1 mention (from Para 1)

CITATION:	R v Pham [2009] QCA 242
PARTIES:	R v PHAM, Joseph Duy (applicant)
FILE NO/S:	CA No 62 of 2009 DC No 2730 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	28 August 2009
DELIVERED AT:	Brisbane
HEARING DATE:	8 July 2009
JUDGES:	Keane and Chesterman JJA and Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the order made.
ORDER:	Leave to appeal against sentence is refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to one charge of distributing, one charge of possessing and two charges of knowingly possessing child exploitation material – applicant was sentenced to two years imprisonment to be suspended after six months with an operational period of two years – whether sentence was manifestly excessive STATUTES – ACTS OF PARLIAMENT – OPERATION AND EFFECT OF STATUTES – RETROSPECTIVE OPERATION – where the relevant sentencing provisions changed between the time the offence was committed and the time of sentencing – where learned sentencing judge applied sentencing provisions as at the time of sentencing – whether the amendments altered substantive or procedural provisions – whether amendments had retrospective operation Acts Interpretation Act 1954 (Qld), s 14H(1), 20C Criminal Code 1899 (Qld), s 11(2), s 228C, s 228D Criminal Code and Other Acts Amendment Act 2008 (Qld) Penalties and Sentences Act 1992 (Qld), s 9(2), s 9(6A), s 9(6B), s 204, s 211 Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 (Qld) Sexual Offences (Protection of Children) Amendment Act 2003 (Qld) Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, considered Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7, applied R v Breeze (1999)106 A Crim R 441; [1999] QCA 303, cited R v Carlton [2009] QCA 241, cited R v Carson[2008] QCA 268, considered R v Flew[2008] QCA 290, cited R v Mason and Saunders [1998] 2 Qd R 186; [1997] QCA 421, distinguished R v S[1999] QCA 311, followed R v Salsone; ex parte A-G (Qld)[2008] QCA 220, considered R v Truong [2000] 1 Qd R 663; [1999] QCA 21; followed Rodway v The Queen (1990) 169 CLR 515; [1990] HCA 19, applied Siganto v The Queen (1997) 194 CLR 656; [1998] HCA 1974, cited Siganto v R (1997) 97 A Crim R 60, considered
COUNSEL:	A P Simpson for the applicant M B Lehane for the respondent
SOLICITORS:	Nguyen Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent