R v Phuong Pham - [2009] NSWDC 362

CITATION: R v Phuong PHAM [2009] NSWDC 362

HEARING DATE(S): 10 December 2009

EX TEMPORE JUDGMENT DATE: 10 December 2009

JURISDICTION: District Court Criminal

JUDGMENT OF: Berman SC DCJ

DECISION: The offender is sentenced to imprisonment. I set a non-parole period of seven years to date from 19 May 2008 and I set a head sentence of eleven years. This means that the offender will be eligible to be released to parole on 18 May 2015.

CATCHWORDS: CRIMINAL LAW - Sentence - Schedule under s 16BA - Border controlled drug - Cocaine - Commercial quantity - Attempting to possess a commercial quantity of methylamphetamine - Serving sentence in a foreign country

LEGISLATION CITED: Crimes Act 1914 (Cth)

PARTIES: The Crown
Phuong Thu Thi PHAM

FILE NUMBER(S): DC 09/11/0062

COUNSEL: Mr L Crowley
Ms C Nash - Offender

SOLICITORS: Director of Public Prosecutions (Cth)
Ford Criminal Lawyers - Offender

JUDGMENT

1 HIS HONOUR: Phuong Thu Thi Pham pleaded guilty on the day of her trial to an offence that on 19 May 2008 at Sydney she attempted to possess a substance which had been unlawfully imported, that substance being a border controlled drug, namely cocaine, the quantity being a commercial quantity. She asked that when I sentence her for that matter I take into account an offence on a schedule under s 16BA of the Commonwealth Crimes Act, that offence being attempting to possess a commercial quantity of methylamphetamine, that offence being committed on the same day.

2 Those matters arose in the following circumstances. The offender’s cousin Hai Van Nguyen was a resident of Australia. In late September 2007 he set up a company purportedly for the purpose supplying beauty products. He thus leased a warehouse and registered business names. Arrangements were then made for the transport to Australia of products described as foot spas. These were sent by ship, that ship arriving on 2 May 2008.

3 In the meantime the offender had left Canada on 23 April 2008, arriving in Melbourne where she met up with Mr Nguyen. Together they travelled to Sydney. Arrangements were then made for the foot spas to be taken to a storage facility at Lansvale.

4 However, upon arrival in Sydney, Australian Customs Service officers detected anomalies within the consignment. AFP officers and Customs officers then conducted physical examination of the foot spas revealing a total of fifty-four blocks wrapped in black tape from the three foot spas. Some of the blocks contained a white powder substance whilst others had a yellow-white crystalline substance. The white powder turned out to be cocaine, the yellow-white crystalline substance turned out to be methylamphetamine. There was a very large quantity of drugs involved. The weight of the cocaine totalled slightly more than twenty-seven kilograms with its total pure weight being thirteen kilograms. The estimated street value of that drug is between fifteen and twenty-four million dollars with a wholesale value of between four and a half million and five and a half million dollars. The…

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 Phuong Pham 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: [2009] NSWDC 362
Decision Date: 10 December 2009

CaseChat Overview and Summary

Phuong Pham was convicted of attempting to possess a commercial quantity of methylamphetamine, and of being in possession of a border controlled drug, cocaine, in a commercial quantity. The case was heard in the Supreme Court of South Australia. The primary issue before the court was to determine the appropriate sentence for the offender, taking into consideration the nature of the crimes, the offender's background, and the fact that the offender was already serving a sentence in Vietnam.

The court considered the nature of the offences, which involved the possession of large quantities of illegal drugs, and the offender's previous criminal history, which included multiple drug-related offences. The court also took into account that the offender was already serving a sentence in Vietnam for drug-related offences. The court had to balance these factors against the offender's background, which included a history of mental illness and a difficult upbringing, in determining the appropriate sentence.

The court determined that the offences were serious and warranted a significant sentence. However, the court also took into account the offender's background and the fact that they were already serving a sentence in Vietnam. The court set a non-parole period of seven years, to date from 19 May 2008, and a head sentence of eleven years, which means that the offender will be eligible to be released to parole on 18 May 2015. The court considered that this sentence was appropriate given the circumstances of the case.

Orders

Orders of the court

The offender is sentenced to imprisonment. I set a non-parole period of seven years to date from 19 May 2008 and I set a head sentence of eleven years. This means that the offender will be eligible to be released to parole on 18 May 2015.

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.

CITATION:	R v Phuong PHAM [2009] NSWDC 362
HEARING DATE(S):	10 December 2009
EX TEMPORE JUDGMENT DATE:	10 December 2009
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The offender is sentenced to imprisonment. I set a non-parole period of seven years to date from 19 May 2008 and I set a head sentence of eleven years. This means that the offender will be eligible to be released to parole on 18 May 2015.
CATCHWORDS:	CRIMINAL LAW - Sentence - Schedule under s 16BA - Border controlled drug - Cocaine - Commercial quantity - Attempting to possess a commercial quantity of methylamphetamine - Serving sentence in a foreign country
LEGISLATION CITED:	Crimes Act 1914 (Cth)
PARTIES:	The Crown Phuong Thu Thi PHAM
FILE NUMBER(S):	DC 09/11/0062
COUNSEL:	Mr L Crowley Ms C Nash - Offender
SOLICITORS:	Director of Public Prosecutions (Cth) Ford Criminal Lawyers - Offender