R v Pham, Tran and Dang; Ex parte - [2017] QCA 46

SUPREME COURT OF QUEENSLAND

CITATION:

R v Pham, Tran & Dang; Ex parte Director of Public Prosecutions (Cth) [2017] QCA 46

PARTIES:

R
v
PHAM, Duy Hoa
(first respondent)
TRAN, Lam Hoang
(second respondent)
DANG, Tam Minh
(third respondent)
EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(appellant)

FILE NO/S:

CA No 1 of 2016
CA No 7 of 2016
CA No 8 of 2016
SC No 864 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeals by Director of Public Prosecutions (Cth)

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 2 December 2015

DELIVERED ON:

23 March 2017

DELIVERED AT:

Brisbane

HEARING DATE:

24 August 2016 (Pham, Tran & Dang)
3 November 2016 (Pham)

JUDGES:

Margaret McMurdo P and Morrison and Philippides JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Appeals dismissed.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the first and second respondents were convicted after trial of attempting to possess a commercial quantity of a border controlled drug – where the third respondent pleaded guilty to attempting to possess a commercial quantity of a border controlled drug on the day before trial – where the first respondent was sentenced to 12 years imprisonment with a non-parole period of seven years – where the second respondent was sentenced to 10 years imprisonment with a non-parole period of six years – where the third respondent was sentenced to 10 years imprisonment with a non-parole period of five and a half years – where 33 kilograms of pure heroin was hidden inside wooden altars that formed part of a consignment of furniture inside a shipping container from Ho Chi Minh City – where the border controlled drug was intercepted and replaced by the Australian Federal Police with an inert substance – where the sentencing judge found that all respondents were willing participants in removing the substance from the wooden altars – where the third respondent had the additional task of transporting a quantity of heroin in a vehicle – where the sentencing judge found that all respondents knew of the presence of the border controlled drug and that they were facilitating the distribution of illegal drugs – where the respondents did not have precise knowledge of the quantity of the border controlled drug – where the first respondent was 35 years old and had previously committed drug offences – where the second respondent was 32 years old and had no criminal history – where the third respondent was 51 years old and had a prior conviction for receiving stolen property – where the nature of the involvement of the respondents was considered – whether the sentences were manifestly inadequate

Criminal Code (Cth), s 11.1, s 307.5

Dao v R [2011] NSWCCA 183, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
Nguyen v R;…

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.

Keep reading for free

Create a free CaseChat account to read R v Pham, Tran and Dang; Ex parte and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] QCA 46
Decision Date: 23 March 2017

CaseChat Overview and Summary

The case before the court involved three respondents who were convicted in connection with an attempt to possess a commercial quantity of a border controlled drug. The respondents were Pham, Tran, and Dang, each with varying degrees of involvement in the drug smuggling operation. The case concerned the sentences imposed on the respondents after their convictions, with the appellants arguing that the sentences were manifestly excessive or inadequate. The respondents had been involved in an operation to smuggle 33 kilograms of pure heroin concealed within wooden altars in a consignment of furniture from Ho Chi Minh City. The heroin was intercepted by the Australian Federal Police and replaced with an inert substance before the shipment reached its destination. All respondents were found to be willing participants in the removal of the substance from the wooden altars. Pham received a sentence of 12 years imprisonment with a non-parole period of seven years, Tran received 10 years imprisonment with a non-parole period of six years, and Dang received 10 years imprisonment with a non-parole period of five and a half years.

The court had to decide whether the sentences imposed on the respondents were manifestly excessive or inadequate. The sentencing judge considered various factors, including the nature and extent of the involvement of each respondent, their criminal histories, and the need for deterrence and denunciation. The court considered the appellants' arguments that the sentences were too harsh, taking into account the mitigating factors such as the lack of precise knowledge of the drug quantity and the late plea by Dang. The court also considered the gravity of the offence and the need for the sentences to reflect the seriousness of the crime. The appeals were dismissed as the court found that the sentencing judge had appropriately applied the relevant principles and that the sentences were not manifestly excessive or inadequate.

The court found that the sentences imposed on Pham, Tran, and Dang were appropriate in the circumstances. The court found that Pham's sentence was not manifestly excessive or inadequate, given his previous drug offences and the severity of his involvement. Tran's sentence was also found to be appropriate, considering his clean criminal record and the nature of his involvement. In relation to Dang, the court found that his sentence, despite his plea, was appropriate given his prior criminal history and the serious nature of his involvement in the drug smuggling operation. The court found no error in the sentencing process and dismissed the appeals. The final orders of the court were that the appeals should be dismissed, and the original sentences imposed on the respondents would stand.

Orders

Orders of the court

Appeals 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

Unlike Pham and Tran, her Honour remarked in relation to Dang, that he was aware that “at least some” of the heroin was to be removed for further distribution. His involvement was of a more serious nature. He had a prior history but also had the benefit of a plea, albeit a late one. Bearing in mind the gravity of his offending and the need to ameliorate the sentence to accommodate the plea, I do not consider that the sentence of 10 years imprisonment with a non-parole period fixed at five and a half years must have involved some misapplication of principle.Conclusion No House v The King error has been demonstrated. Accordingly, the appeals should be dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Pham, Tran & Dang; Ex parte Director of Public Prosecutions (Cth) [2017] QCA 46
PARTIES:	R v PHAM, Duy Hoa (first respondent) TRAN, Lam Hoang (second respondent) DANG, Tam Minh (third respondent) EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS (appellant)
FILE NO/S:	CA No 1 of 2016 CA No 7 of 2016 CA No 8 of 2016 SC No 864 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeals by Director of Public Prosecutions (Cth)
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 2 December 2015
DELIVERED ON:	23 March 2017
DELIVERED AT:	Brisbane
HEARING DATE:	24 August 2016 (Pham, Tran & Dang) 3 November 2016 (Pham)
JUDGES:	Margaret McMurdo P and Morrison and Philippides JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Appeals dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the first and second respondents were convicted after trial of attempting to possess a commercial quantity of a border controlled drug – where the third respondent pleaded guilty to attempting to possess a commercial quantity of a border controlled drug on the day before trial – where the first respondent was sentenced to 12 years imprisonment with a non-parole period of seven years – where the second respondent was sentenced to 10 years imprisonment with a non-parole period of six years – where the third respondent was sentenced to 10 years imprisonment with a non-parole period of five and a half years – where 33 kilograms of pure heroin was hidden inside wooden altars that formed part of a consignment of furniture inside a shipping container from Ho Chi Minh City – where the border controlled drug was intercepted and replaced by the Australian Federal Police with an inert substance – where the sentencing judge found that all respondents were willing participants in removing the substance from the wooden altars – where the third respondent had the additional task of transporting a quantity of heroin in a vehicle – where the sentencing judge found that all respondents knew of the presence of the border controlled drug and that they were facilitating the distribution of illegal drugs – where the respondents did not have precise knowledge of the quantity of the border controlled drug – where the first respondent was 35 years old and had previously committed drug offences – where the second respondent was 32 years old and had no criminal history – where the third respondent was 51 years old and had a prior conviction for receiving stolen property – where the nature of the involvement of the respondents was considered – whether the sentences were manifestly inadequate Criminal Code (Cth), s 11.1, s 307.5 Dao v R [2011] NSWCCA 183, cited House v The King (1936) 55 CLR 499; [1936] HCA 40, cited Nguyen v R;…