Regina v Pham

[2001] NSWCCA 101

CITATION:	REGINA v. PHAM [2001] NSWCCA 101
FILE NUMBER(S):	CCA 60814 of 1999
HEARING DATE(S):	Monday 26 March 2001
JUDGMENT DATE:	26 March 2001
PARTIES :	REGINA v. PHAM, Duc Thuan
JUDGMENT OF:	Greg James J at 1; Smart AJ at 16

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/21/2171
LOWER COURT JUDICIAL OFFICER :	O'Reilly, DCJ.

COUNSEL :	Crown: P. Berman, SC. App: In writing
SOLICITORS:	Crown: S.E. O'Connor App: No appearance
CATCHWORDS:	Criminal law - sentence - appeal - no question of principle.
LEGISLATION CITED:	Drug Misuse & Trafficking Act 1985
CASES CITED:	N/A
DECISION:	Dismiss the application for leave to appeal

IN THE COURT OF

CRIMINAL APPEAL

No. 60814 of 1999

CORAM: GREG JAMES, J.

SMART, AJ.

MONDAY 26 MARCH 2001

REGINA v. DUC THUAN PHAM

JUDGMENT

1   GREG JAMES, J: The applicant, Duc Thuan Pham, seeks leave to appeal from sentences imposed upon him in the District Court of New South Wales on 15 December 1999.

2 Those offences were imposed for, firstly, a crime of supply prohibited drug under s.25(1) of the Drug Misuse & Trafficking Act 1985, an offence punishable by maximum penalty of 15 years' imprisonment and, secondly, an offence of supply prohibited drug of not less than the commercial quantity under s.25(2) of the Drug Misuse and Trafficking Act, an offence punishable by a maximum period of 20 years' imprisonment.

3   For the first offence the applicant was sentenced to a fixed term of two years' penal servitude to commence on 17 April 1999 and to expire on 16 April 2001. On the second offence the applicant was sentenced to penal servitude for six years to commence on 17 April 1999, to expire on 16 April 2005. His Honour directed a minimum term to commence on the commencement date of the sentences of four years together with an additional term of two years.

4   The offences were committed when the applicant had attracted the attention of police as a supplier of heroin. He was approached by undercover police officers and in the course of the first transaction supplied slightly over seven grams of heroin for the sum of $1,900 in cash. During the same conversation he agreed to supply a pound of heroin.

5   In later discussions he agreed to supply and arranged for the supply of 10 ounces of heroin for a sum of $68,000.

6   He involved his wife in the delivery of the 10 ounces of heroin. She was arrested with that heroin in her possession.

7   The trial judge held that he had committed the offence in circumstances where he had an addiction. He rejected the applicant's contention that the applicant had been dealing with suppliers to him whom he knew only by their first names. He was given the utilitarian benefit of a plea and regard was had to his subjective circumstances, in particular, his previous drug problems, his separation from his wife and his express willingness to enter a rehabilitation programme, but his bad record was seen as of no assistance to him, in particular his record for offences against the drug laws.

8   His Honour reached the view that the criminality of these matters, having regard to the Judicial Commission's statistics, was more towards the top of the range than the middle of the range by virtue of the quantity of the drug involved alone.

9   His Honour imposed the fixed term as it was subsumed within the minimum term imposed on the other count.

10   The applicant has contended in writing, he having elected not to attend, that the sentence exceeds what was called for on the basis that he has been deprived of the society of his daughter and son and they cannot come to visit him in the institution at which he is confined at Junee, that he had been the subject of an attack in gaol after sentence and that he had attempted to remain positive about his rehabilitation but because of the attack he has to serve his sentence in protection. He is of the view, he said, that because of his plea of guilty he would receive a discount in sentence.

11   As to the last, it is apparent that he has received the discount that his Honour referred to in his remarks on sentence.

12   It is also asserted that the sentencing judge had failed to give proper weight to the special circumstances. As noted from the Crown's written submissions, his Honour had found that the applicant would need prolonged and intensive supervision on release, but in the context of sentencing for the two offences had reflected that in the way in which his Honour structured the sentence.

13   It is trite law that the minimum term or non-parole period must reflect to some extent the objective seriousness of the offence as well as the head sentence. I see no basis on which his Honour fell into error in that regard. I see no basis on which it can be contended that his Honour fell into error on the other matters put forward as affecting the trial judge's decision, such as the failure to give a sufficient discount or reduction in sentence by reason of plea of guilty, the timing of the plea or for assistance to the police.

14   As to the other matter to which the applicant refers, that is the events that have occurred to the applicant after sentence, it is not open to this court to intervene in that regard since those matters do not fall within the well-known exceptions to the rule that the sentence is to be considered in the light of the evidence before the sentencing judge.

15   I am of the view that because the applicant is unrepresented and because we have had to deal with the matter as we have, the appropriate course is to dismiss the application for leave to appeal.

16   SMART AJ: I agree.

17   GREG JAMES J: The order of the court will be as I have indicated.

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