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10
Court of Criminal Appeal 12 September 2005

REGINA v. PHAM

[2005] NSWCCA 314

Drugs
CRIMINAL LAW IMPORT HEROIN TWO STAGE APPROACH TO SENTENCING APPLICANT'S MENTAL CONDITION MITIGATING FACTOR

Citation: Regina v Pham [2005] NSWCCA 314
Court: NSW Court of Criminal Appeal
Date: 12 September 2005
Judge(s): Sully J, Hidden J, Hall J

Background

The applicant, a 27-year-old Vietnamese-born man who had come to Australia as a child refugee, pleaded guilty in the Local Court to importing heroin contrary to s 233B(1)(b) of the Customs Act 1901 (Cth). He was intercepted at Sydney's Kingsford Smith Airport carrying 244.6 grams pure of heroin, which the sentencing judge noted was 122 times the traffickable quantity. The wholesale value was $120,000, with a street value estimated between $611,500 and $856,100.

The applicant told customs officers he had bought the heroin in Bangkok and intended to sell it on arrival. He later said in evidence that he had agreed to carry the drugs to fund legal representation in another matter, and that he was to be paid AUD$5,000 for doing so. He was assessed as a low-level importer rather than an organiser of the operation.

In the District Court, Hock DCJ sentenced him to nine years' imprisonment with a non-parole period of five years and six months. The applicant sought leave to appeal on three grounds.

  • Whether the sentencing judge erred by adopting a "two-stage" approach to sentencing (building up or discounting from a predetermined figure), contrary to the principle established in Wong & Leung (2001) 207 CLR 584
  • Whether the sentencing judge failed to give proper weight to the applicant's psychological condition as a mitigating factor under s 16A(2)(m) of the Crimes Act 1914 (Cth)
  • Whether the sentence of nine years was manifestly excessive

Decision

The Court granted leave to appeal and reduced the sentence, though the three judges reached that result by different paths. Hall J delivered the principal judgment, with Sully J and Hidden J agreeing on grounds 2 and 3 but expressly reserving their positions on ground 1.

On the two-stage approach (ground 1), the applicant contended that the sentencing judge had determined an appropriate sentence and then applied discounts or additions for specific factors rather than arriving at a single "instinctive synthesis" of all relevant considerations. Hall J identified this as error. Sully J and Hidden J, however, were not satisfied that the High Court's decision in Markarian [2005] HCA 25 had definitively ruled out a two-stage methodology, and they declined to resolve that question. The appeal succeeded on the remaining grounds.

On the applicant's mental condition (ground 2), Hall J found the sentencing judge had not given adequate weight to the applicant's post-traumatic psychological state arising from a 1996 motor vehicle accident in which a close friend died. A forensic psychologist's report supported the existence of ongoing psychological effects. Section 16A(2)(m) of the Crimes Act 1914 (Cth) required this to be taken into account as a mitigating factor, and the failure to do so properly constituted error.

Taking all factors together, including the applicant's role as a low-level importer, the somewhat amateurish nature of the offence, his genuine contrition, family support, and prospects for rehabilitation, Hall J concluded the original sentence was manifestly excessive. The sentence was reduced to eight years with a non-parole period of four years and six months.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • Original sentence quashed
  • Applicant sentenced to eight years' imprisonment commencing 3 May 2004 and expiring 2 May 2012
  • Non-parole period of four years and six months set, commencing 3 May 2004 and expiring 2 November 2008
  • Applicant eligible for release on parole on 2 November 2008

Key Takeaways

  • The Court of Criminal Appeal confirmed that a failure to give proper weight to an offender's psychological condition, where established by evidence, can constitute a specific error justifying appellate intervention in sentencing.
  • Under s 16A(2)(m) of the Crimes Act 1914 (Cth), a sentencing court is required to make appropriate allowance for an offender's mental condition as a mitigating factor; neglecting that obligation may render a sentence manifestly excessive.
  • Adopting a two-stage sentencing approach, by settling on a base figure and then mechanically adjusting for individual factors rather than performing an instinctive synthesis of all relevant matters, was identified as a departure from principle per Wong & Leung (2001) 207 CLR 584; however, Sully J and Hidden J reserved their view on whether Markarian [2005] HCA 25 had definitively closed off that methodology.
  • In assessing sentence for a low-level drug importer, the court weighed the quantity of the drug against the comparative range established in Wong, the offender's limited role, and subjective factors including contrition, family support, and rehabilitation prospects.
  • A sentence that cannot be explained by proper application of sentencing principles and relevant comparators may be set aside as manifestly excessive even where the objective seriousness of the offence is significant.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), s 233B(1)(b)
- Crimes Act 1914 (Cth), s 16A (including s 16A(2)(m))
- Evidence Act 1995

Cases
- Markarian v The Queen [2005] HCA 25
- Wong & Leung (2001) 207 CLR 584
- Wong & Leung (1999) 48 NSWLR 340
- Dodd (1991) 57 A Crim R 349
- Hemsley [2004] NSWCCA 228
- Scognamiglio (1991) 56 A Crim R 81
- Henry (1999) 46 NSWLR 346
- Jiminez [1999] NSWCCA 7
- Tsiaras (1996) 1 VR 398
- Lauritsen (2000) 114 A Crim R 333
- Israil [2002] NSWCCA 255
- Pearson [2004] NSWCCA 129
- Engert (1999) 84 A Crim R 67
- Bezan (2004) 147 A Crim R 430
- Mas Rivadavia [2004] NSWCCA 284