Tuan Pham v The Queen - [2018] VSCA 308

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0269

TUAN PHAM	Appellant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 November 2018
DATE OF JUDGMENT:	21 November 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 308
JUDGMENT APPEALED FROM:	DPP v Pham [2017] VCC 1858 (Judge Murphy), 6 December 2017)

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CRIMINAL LAW – Sentence – Appeal – Appeal against sentence – Cultivating a commercial quantity of cannabis – Two charges of theft – Sentenced to 4 years and 6 months’ imprisonment – Whether specific deterrence relevant – Whether sentence manifestly excessive – Whether sentences or order for cumulation outside boundary of the proper exercise of sentencing discretion – Sentence not manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J O’Connor	Haines & Polities
For the Respondent	Mr J B B Lewis	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA:

For the reasons given by Ashley JA, whose judgment I have had the considerable advantage of reading in draft, I agree that the appeal should be dismissed.

ASHLEY JA:

Tuan Pham, the appellant, was sentenced on 6 December 2017 to a total effective sentence of 4 years and 6 months’ imprisonment. The Judge fixed a non-parole period of 2 years and 9 months’ imprisonment. Sentence was imposed after the appellant pleaded guilty to a charge of cultivating a commercial quantity of cannabis (Charge 1) for which a sentence of 4 years’ imprisonment was imposed, and to two charges of theft (Charges 2 and 3) on which sentences of 4 months and 9 months’ imprisonment respectively were imposed. On Charge 3, 6 months of the 9 months sentence was cumulated on the sentence on Charge 1. So was arrived at the total effective sentence of 4 years and 6 months’ imprisonment.

Grounds

The appellant appeals by leave[1] on two grounds:
[1]Granted by Priest JA on 13 April 2018.

(1)The sentencing Judge erred in finding that specific deterrence was of relevance to the sentencing of the appellant.
(2)The sentences imposed on the charge of cultivating of a commercial quantity of cannabis and two charges of theft of electricity, the non-parole period and the orders for cumulation:
(a) were manifestly excessive; and
(b)were outside the range of sentences reasonably open in the circumstances of the offence and the offender; and
(c)resulted in a total effective sentence and non-parole period that was manifestly excessive.

Circumstances

The circumstances of the offending were not in contest. The Judge below described them this way:

You and your wife had been living in a property at Wollert (‘the Wollert property’). You had purchased that property in March 2014. On 29 September 2015 you purchased another property in Epping (‘the Epping property’). You had been living in the Wollert property, but moved to the Epping property. The mailing address for the Epping property remained the Wollert property.
Charge one is a rolled up charge of cultivating a commercial quantity of cannabis committed by you…

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 Tuan Pham v The Queen

Details

AGLC: Tuan Pham v The Queen [2018] VSCA 308
Case: [2018] VSCA 308
Decision Date: 21 November 2018

CaseChat Overview and Summary

In Tuan Pham v The Queen, the appellant, Tuan Pham, challenged his sentence following a conviction for cultivating a commercial quantity of cannabis and two charges of theft. The case was heard in the Court of Appeal of the Supreme Court of Victoria. Pham was sentenced to a total of four years and six months' imprisonment, which he considered manifestly excessive. He argued that specific deterrence was irrelevant and that the sentence imposed was outside the boundary of the proper exercise of sentencing discretion.

The primary legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive and whether it was outside the proper exercise of the trial judge's sentencing discretion. The court had to consider the principles of sentencing, including the need for specific deterrence and the overarching objective of proportionality in sentencing. The appellant also argued that the sentence was disproportionate in light of the nature and circumstances of the offences and his personal circumstances.

The Court of Appeal considered the principles of sentencing and the relevant authorities on the matter. It held that the sentence was not manifestly excessive and did not fall outside the proper exercise of the trial judge's sentencing discretion. The court found that the sentence was proportionate to the gravity of the offences and took into account the need for specific deterrence. The court also considered the appellant's personal circumstances, including his age, background, and prospects for rehabilitation. Ultimately, the court dismissed the appeal, upholding the sentence imposed by the trial judge.

No additional orders were made by the Court of Appeal. The sentence of four years and six months' imprisonment for Pham remained in place, as the court found that it was a proper exercise of the trial judge's sentencing discretion.

Orders