R v Pham & Nguyen - [2006] VSCA 68

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN
	No. 148 of 2004
v.
QUANG HUNG PHAM
	THE QUEEN
No. 150 of 2004
v.
MANH HUONG NGUYEN

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JUDGES:	CHERNOV and EAMES, JJ.A. and MANDIE, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 February 2006
DATE OF JUDGMENT:	23 March 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 68

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Criminal law – Sentencing – Major heroin trafficking enterprise operating between NSW and Victoria – One applicant pleaded guilty to trafficking in a commercial quantity in heroin – Sentence of seven years with non-parole period of five years and six months not manifestly excessive – Second applicant convicted by jury of trafficking in heroin – Sentence of six years with four years and six months non-parole period not manifestly excessive – Whether second applicant sentenced, erroneously, on basis of commercial trafficking – Risk of re-offending: R v Pickard [1998] VSCA 50 – Parity – Whether principle of parity applies where offences not identical – Drugs, Poisons and Controlled Substances Act 1981, ss.71(1)(a) and (b).

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr O.P. Holdenson, QC	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant Quang Hung Pham	Mr G.F. Meredith	Victoria Legal Aid
For the Applicant Manh Huong Nguyen	Mr C.B. Boyce	Clarebrough Pica

CHERNOV, J.A.:

I have had the advantage of reading the draft reasons for judgment of Eames, J.A. and agree that, for the reasons given by his Honour, the application by Manh Huong Nguyen to amend the grounds of appeal should be refused and the applications for leave to appeal against sentence should be dismissed.

EAMES, J.A.:

These are applications for leave to appeal against sentence brought by two persons who were part of a large scale heroin trafficking enterprise conducted between Sydney and Melbourne in 2001. The same judge, her Honour Judge Jenkins, sentenced these two applicants, and also a third person. Some of their co-offenders were sentenced by other judges. As is so frequently the case when circumstances arise which make it impossible for all co-offenders in a criminal enterprise to be sentenced by the same judge, one common complaint made by these applicants is that their sentences offend the principle of parity in sentencing, with respect to the sentence imposed on the co-offenders. As will emerge, I conclude that that complaint is without substance with respect to either applicant. Each raises other grounds of appeal, too, but I have concluded that those grounds are also without substance.

The applicant Quang Hung Pham (“Pham”) pleaded guilty to one count of trafficking in a commercial quantity of heroin between 1 August 2001 and 30 October 2001, contrary to s.71(1)(a) of the Drugs, Poisons and Controlled Substances Act 1981 (“the Act”). On 11 June 2004 he was sentenced to seven years’ imprisonment with a non-parole period fixed of five years and six months’ imprisonment.

The applicant Manh Huong Nguyen (“Manh”), having been committed for trial on a count of trafficking in heroin between 18 September 2001…

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 & Nguyen

Details

AGLC: R v Pham & Nguyen [2006] VSCA 68
Case: [2006] VSCA 68
Decision Date: 23 March 2006

CaseChat Overview and Summary

The applicants, Pham and Nguyen, were involved in a large-scale heroin trafficking operation between New South Wales and Victoria. Pham pleaded guilty to trafficking in a commercial quantity of heroin, while Nguyen was convicted by a jury of trafficking in heroin. Both applicants were sentenced to six years imprisonment, with non-parole periods of five years and six months for Pham, and four years and six months for Nguyen. The applicants appealed their sentences, arguing that they were manifestly excessive and that the sentences were not in parity with one another. The appeal raised questions about the appropriate sentence for major heroin trafficking and whether the sentencing judge had erred in sentencing Nguyen on the basis of commercial trafficking. The appeal also questioned whether the principle of parity should apply where the offences were not identical.

The court examined the sentencing principles relevant to major heroin trafficking cases, considering the seriousness of the offences and the need for deterrence. The court noted that the sentence for Pham, who pleaded guilty, was not manifestly excessive and that the sentence for Nguyen, who was convicted by a jury, was also not manifestly excessive. The court considered the principle of parity, which requires sentences to be comparable where the offences are similar in nature and the offenders' roles are comparable. However, the court found that the principle of parity did not apply in this case because the offences were not identical, and the applicants' roles were not identical. The court also considered the risk of re-offending, as outlined in R v Pickard, and found that the sentences were appropriate in light of this risk.

In conclusion, the court found that the sentences imposed on Pham and Nguyen were not manifestly excessive and that the sentencing judge had not erred in sentencing Nguyen on the basis of commercial trafficking. The court found that the principle of parity did not apply in this case because the offences were not identical and the applicants' roles were not identical. The court dismissed the appeals, upholding the sentences imposed by the sentencing judge. The court emphasised the seriousness of major heroin trafficking and the need for appropriate sentences to deter such conduct.

Orders