R v Pham - [2007] VSCA 234

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 374 of 2006

THE QUEEN
	v.
CUONG VAN PHAM

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JUDGES:	CHERNOV, VINCENT and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 October 2007
DATE OF JUDGMENT:	18 October 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 234

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CRIMINAL LAW – Sentencing – Cultivation of commercial quantity of cannabis – Whether open to judge to sentence appellant as “principal offender” – Proof of facts on sentencing – R v Storey [1998] 1 VR 358 – Extraneous observations by sentencing judge – Whether undue weight given to general deterrence – Cultivation – Significance of maturity of crop to sentencing disposition – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C M Quin	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr L C Carter	Hale & Wakeling Solicitors

CHERNOV JA:

On 22 November 2006, the appellant, Cuong Van Pham, who is now aged 40 years, pleaded guilty in the County Court at Shepparton to one count of cultivating a commercial quantity of cannabis and one count of theft of electricity. The maximum custodial penalty for cultivation of narcotic plants in a commercial quantity is 25 years’ imprisonment and for theft it is 10 years’ imprisonment. After hearing a plea of mitigation made on his behalf, the learned sentencing judge sentenced the appellant to two years and nine months’ imprisonment on count 1,and six months’ imprisonment on count 2. His Honour ordered that three months of the sentence imposed on count 2 be served cumulatively on that imposed on count 1, producing a total effective sentence of three years’ imprisonment, and ordered that the appellant serve a minimum two years before becoming eligible for parole. The appellant appeals against sentence pursuant to leave granted to him on 25 May 2007 pursuant to s 582 of the Crimes Act 1958.

The circumstances of the offending and of the appellant can be briefly summarised. The appellant arrived in Australia from Vietnam in September 2005 on a tourist’s visa. On 3 February 2006, he moved into premises at 3 Fowler Street, Tallygaroopna, a brick veneer house in which he set up what the sentencing judge said was a sophisticated and elaborate hydroponic cannabis operation in nearly all rooms of the house. The photographs of the premises taken by the police at or about the time of the appellant’s arrest confirm his Honour’s conclusion in that regard. The police raided the premises on 20 March 2006 and there located a total of 150 plants that weighed over 93 kilograms. The plants were at varying stages of maturity and, although none had been harvested, approximately half of them were close to full maturity. It was estimated that electricity in excess of $3,000 had been unlawfully appropriated for the venture by the use of an electricity by-pass that had been installed at the premises. The appellant made full admissions when interviewed by police and told them that he grew the cannabis with the intention of selling…

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 [2007] VSCA 234
Case: [2007] VSCA 234
Decision Date: 18 October 2007

CaseChat Overview and Summary

The case of R v Pham involved the appellant, who was convicted for the cultivation of a commercial quantity of cannabis. The appeal was brought before the court to challenge the sentence imposed on the appellant, asserting that the sentencing judge erred in considering him as the principal offender and in the weight given to general deterrence. The court had to determine if the sentencing judge could lawfully sentence the appellant as the principal offender and whether there was an error in the consideration of facts during sentencing.

The primary legal issues before the court were whether the sentencing judge had the authority to designate the appellant as the principal offender, and if the sentence imposed was excessive due to undue emphasis on general deterrence. Additionally, the court examined whether the facts considered by the sentencing judge were sufficient to justify the sentence. The court also needed to assess if the maturity of the cannabis crop played a significant role in the sentencing decision.

In its reasoning, the court found that the sentencing judge did have the authority to consider the appellant as the principal offender based on the evidence presented. The court noted that the sentencing judge's observations, while perhaps not ideal, did not constitute a legal error warranting an appeal. The court also held that there was no undue emphasis on general deterrence and that the facts considered were adequate to support the sentence. The maturity of the cannabis crop was acknowledged as a relevant factor but did not deem the sentence to be excessive. Consequently, the appeal was dismissed, and the original sentence was upheld.

The final orders of the court confirmed the dismissal of the appeal and affirmed the sentence imposed on the appellant. The court's decision emphasised that the sentencing judge's discretion was exercised within the bounds of the law, and no grounds for appeal were substantiated.

Orders