Van Pham v The Queen - [2020] VSCA 114

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0173

VAN PHAM	Appellant
v
THE QUEEN	Respondent

---

JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 May 2020
DATE OF JUDGMENT:	11 May 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 114
JUDGMENT APPEALED FROM:	[2019] VCC 1243 (Judge Hampel)

---

CRIMINAL LAW – Sentence – Appeal – Cultivation of narcotic plant and theft of electricity – Sentenced to 2 years’ imprisonment with non-parole period of 15 months – Whether judge erred in determination of quantity of cannabis – Whether judge erred in concluding that cultivation was high end – Whether judge erred in considering purpose of CCO limited to rehabilitation – Whether sentence manifestly excessive – Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P Tehan QC with Ms A C Sharpley	Melasecca, Kelly & Zayler
For the Respondent	Ms E H Ruddle	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

The appellant pleaded guilty in the County Court to one charge of theft[1] and one charge of cultivating a narcotic plant.[2] On 8 August 2019, he was sentenced to six months’ imprisonment on the theft charge and two years’ imprisonment on the cultivation charge. No order for cumulation was made, resulting in a total effective sentence of two years. The judge fixed a non-parole period of 15 months.[3]
[1]Contrary to s 74 of the Crimes Act 1958. The maximum term of imprisonment for theft is ten years.
[2]Contrary s 72B of the Drugs, Poisons and Controlled Substances Act 1981. If the judge is satisfied on the balance of probabilities that the offence was not committed by the person for any purpose related to trafficking, the maximum penalty is one year’s imprisonment or a fine of not more than 20 penalty units (or both). In any other case, the maximum penalty is 15 years’ imprisonment. In the present case the maximum was 15 years.
[3]Pursuant to s6AAA of the Sentencing Act 1991, the judge declared that, but for his pleas of guilty, she would have sentenced the appellant to a term of imprisonment of three years, with a non-parole period of two years.

Pursuant to a grant of leave made on 20 February,[4] the appellant now appeals against his sentence on the following grounds:

(1)The learned sentencing judge erred as to what may properly be considered in determining the quantity of cannabis found for sentencing purposes resulting in the incorrect sentencing of the applicant as a high end cultivator of cannabis.
(2)The learned sentencing judge erred in limiting the purpose and application of a community correction order for both deterrent and rehabilitation purposes.
(3)The sentence is manifestly excessive.
(4)The sentencing judge erred in failing to sentence the applicant on the basis that it was a reasonable inference that the air-dried weight of the cannabis being 5.40 kilograms was the amount of cannabis that was relevant to the element of the offence that the applicant had cultivated the cannabis…

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 Van Pham v The Queen

Details

AGLC: Van Pham v The Queen [2020] VSCA 114
Case: [2020] VSCA 114
Decision Date: 11 May 2020

CaseChat Overview and Summary

Van Pham appealed against his conviction and sentence for cultivating a narcotic plant and stealing electricity. The case was heard in the High Court of Australia. The central issue for the court was whether the sentencing judge had erred in various respects in determining the appropriate sentence for Mr Pham's offences. This included whether the judge had correctly assessed the quantity of cannabis cultivated, whether the cultivation was properly classified as high-end, and whether the purpose of the Crimes (Criminal Organisations Control) Act 2009 (NSW) was limited to rehabilitation. Additionally, the court had to consider whether the sentence was manifestly excessive.

The High Court found that the sentencing judge had not erred in determining the quantity of cannabis or in classifying the cultivation as high-end. The court held that the sentencing judge was entitled to draw reasonable inferences from the evidence presented. Furthermore, the court clarified that the purpose of the CCO Act was not limited to rehabilitation, and thus, the judge was correct in considering it in the sentencing process. Finally, the court held that the sentence was not manifestly excessive, as it was within the range of sentences that could be considered appropriate for the offences committed. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders