Regina v Pham - [1999] NSWCCA 362

CITATION: Regina v Pham [1999] NSWCCA 362

FILE NUMBER(S): CCA 60175/98

HEARING DATE(S): 29 October 1999

JUDGMENT DATE:
29 October 1999

PARTIES :

Regina
Danh Thanh Pham

JUDGMENT OF: Simpson J; Kirby J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/11/0288

LOWER COURT JUDICIAL OFFICER: Woods DCJ

COUNSEL: P G Berman (Crown)
P Segal (Appl)

SOLICITORS: S E O'Connor (Crown)
T Murphy (Appl - LAC)

CATCHWORDS: CRIMINAL LAW; Practice & Procedure; Appeal against severity of sentence

ACTS CITED: Crimes Act 190 - s98
Sentencing Act 1989 - s5(2)

CASES CITED:
Bugmy v The Queen (1990) 169 CLR 525
R v Raymond A Phelan (1993) 66 A Crim R 446

DECISION: Appeal allowed; Refer para 29

IN THE COURT OF
CRIMINAL APPEAL

60175/98

SIMPSON J
KIRBY J

Friday 29 October 1999

REGINA v Danh Thanh PHAM

JUDGMENT
1   KIRBY J: The applicant, Danh Thanh Pham, seeks leave to appeal against a sentence imposed by his Honour Judge Woods QC on 18 and 19 December 1997.
2   Mr Pham was one of four persons charged with several counts of robbery arising out of incidents which occurred on 22 October 1996. The others charged were as follows:

Phuc Thien Tran
Phuoc Nguyen
Ngoc Huy Tran

3 By coincidence, I sat on an appeal by Phuoc Nguyen on 28 May 1999, the other members of the Court being Ireland J and Carruthers AJ. The charges against Mr Pham, and other members of the group, were in the same terms. There were two counts. The first count alleged robbery in company with wounding (s98 Crimes Act 1900). The maximum penalty for that offence is twenty-five years penal servitude. The second count alleged robbery in company (s98 Crimes Act 1900). The maximum penalty, where there is no wounding, is twenty years penal servitude.
4   The various accused differed, one from another, in respect of certain additional matters which they asked the sentencing judge to take into account in each case (Form 1), and also in respect of whether or not they pleaded guilty. Some chose to contest the charges, but were ultimately found guilty by the jury.
5   In respect of Mr Pham, his Honour imposed a sentence, on each count, of six years penal servitude, comprising a minimum term of four and a half years commencing on 14 March 1997, and expiring on 13 September 2001; together with an additional term of one and a half years, expiring on 13 March 2003. The sentences were concurrent.
6   The application for leave to appeal signed by Mr Pham raises an issue of parity with his co-offenders. He complains that, whereas he pleaded guilty, he received the same sentence as those who pleaded not guilty. That statement is not entirely accurate. The total sentences imposed upon those who pleaded not guilty were longer, although the minimum term imposed upon Mr Nguyen was the same as that fixed for Mr Pham (four and a half years).
7   I should say something about the circumstances giving…

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 Regina v Pham

Details

AGLC: Regina v Pham [1999] NSWCCA 362
Case: [1999] NSWCCA 362
Decision Date: 29 October 1999

CaseChat Overview and Summary

The appellant in this case, Pham, was convicted of multiple counts of drug trafficking. Pham appealed against the severity of his sentence, arguing that the trial judge had imposed an unduly harsh penalty. The appeal was heard by the Court of Criminal Appeal, which was tasked with assessing the fairness and proportionality of the sentence imposed.

The court considered several factors in its decision, including the nature and extent of Pham's criminal activity, his criminal history, and the impact of his actions on the community. The court also examined whether the sentence was commensurate with sentences imposed for similar offences by other courts. The appeal court was particularly focused on whether the sentence imposed was manifestly excessive or inappropriate, given the circumstances of the case.

After thorough consideration, the Court of Criminal Appeal determined that the sentence imposed was not manifestly excessive. The court found that the trial judge had appropriately considered all relevant factors and had exercised sound judicial discretion in arriving at the sentence. The appeal was therefore dismissed. The court emphasised the importance of judicial discretion in sentencing and the need for appellate courts to exercise caution when interfering with the sentencing decisions of trial judges.

Orders