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Court of Criminal Appeal 15 August 2008

PHAM, Van Diep; TRAN John Xanvi v R

[2008] NSWCCA 194

Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION WHETHER SUMMING UP UNBALANCED AGAINST SENTENCE

Citation: PHAM, Van Diep; TRAN John Xanvi v R [2008] NSWCCA 194
Court: New South Wales Court of Criminal Appeal
Date: 15 August 2008
Judges: Allsop P; James J; Price J

Background

Two appellants were convicted in the District Court following a jury trial on multiple counts of drug supply, involving heroin, cocaine, MDMA, and N,N-Dimethylamphetamine. The offending occurred across several months in early 2005 and involved commercial and large commercial quantities of prohibited drugs. The trial judge, Sweeney DCJ, sentenced the first appellant (Tran) to an overall non-parole period of 12 years with an additional term of 4 years, and the second appellant (Pham) to an overall non-parole period of 10.5 years with an additional term of 3.5 years.

Both appellants appealed their convictions, with Tran carrying the principal argument. Pham did not seek to be heard separately on conviction but indicated he would benefit from any successful argument raised on Tran's behalf. Both appellants also sought leave to appeal their sentences on grounds of manifest excess. Separately, the Director of Public Prosecutions (DPP) appealed the sentences imposed on both men as manifestly inadequate.

  • Whether the trial judge's summing-up was unbalanced in a way that rendered the convictions unsafe
  • Whether expert evidence as to the meaning of words used in intercepted surveillance conversations was admissible
  • Whether leave should be granted to raise, on appeal, directions about joint possession and lies given at trial
  • Whether the sentences imposed were manifestly excessive (appellants' grounds) or manifestly inadequate (DPP's grounds)
  • Whether the sentencing judge erred in her approach to totality, accumulation of sentences, and the quantity of cocaine in one of the alternative counts

Decision

Conviction appeals: The Court of Criminal Appeal dismissed the conviction appeals of both Tran and Pham. The Crown case was largely circumstantial and involved complex interplay across 17 counts. Tran argued the summing-up was unbalanced, but the Court rejected that submission. The trial judge faced the difficult task of directing a jury on a long, multi-count trial in which neither accused ran a positive case. The Court also found the admission of expert evidence about the meaning of words used in surveilled conversations was not in error.

Leave to raise additional grounds (Tran): The Court refused leave to raise, as grounds of appeal, the trial judge's directions on joint possession and on lies. No sufficient basis was established to warrant granting leave on those points.

Sentence appeals by appellants: The Court granted leave to Tran to appeal his sentences but dismissed that appeal. The same outcome applied to Pham. The sentences were found to properly reflect the serious and ongoing commercial nature of the drug trafficking. The accumulated sentences were neither manifestly excessive nor the product of identifiable legal error.

DPP's sentence appeals: The Court dismissed both DPP appeals. In addressing the third asserted sentencing error concerning Tran, the Court found that the trial judge was not obliged to determine the quantity of cocaine for the statutory alternative count when the evidence did not permit it. The trial judge's approach to that count was not contrary to the applicable authority. Overall, the sentences did not reflect a failure to account for total criminality, and the Court declined to find manifest inadequacy.

Orders Made

  • Tran: Refused leave to raise directions on joint possession and lies as grounds of appeal; conviction appeal dismissed; leave to appeal sentence granted but appeal dismissed
  • Pham: Conviction appeal dismissed; leave to appeal sentence granted but appeal dismissed
  • DPP's appeals: Appeal against sentences imposed on Tran dismissed; appeal against sentences imposed on Pham dismissed

Key Takeaways

  • Expert evidence explaining the meaning of words used in intercepted surveillance conversations was held to be admissible in this drug supply prosecution, consistent with the court's findings on the conviction appeal.
  • In dismissing the unbalanced summing-up argument, the Court of Criminal Appeal acknowledged the particular complexity facing a trial judge directing a jury on a long, multi-count, largely circumstantial case where neither accused ran a positive defence.
  • A sentencing judge is not obliged to determine the quantity of drugs involved in a conviction on a statutory alternative count where the evidence does not permit such a finding.
  • No error was established in the trial judge's approach to totality or accumulation of sentences across the multiple counts, and the overall sentences were found to appropriately reflect the seriousness and ongoing commercial character of the offending.
  • Both the appellants' claims of manifest excess and the DPP's claims of manifest inadequacy failed, with the Court confirming the sentences fell within the range appropriate to serious, ongoing commercial drug trafficking.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Edwards v The Queen (1993) 178 CLR 193
- Gassy v The Queen [2008] HCA 18
- Green v The Queen (1971) 126 CLR 28
- Mercer v R (1993) 67 Crim R 91
- O'Donoghue (1988) 34 A Crim R 397
- Pearce v The Queen (1998) 194 CLR 610
- R v Chin (1985) 157 CLR 671
- R v Crombie [1999] NSWCCA 297
- R v Harron [1996] Crim LR 581
- R v Lodhi [2006] NSWSC 672
- R v Middleton [2001] Crim LR 251
- R v ST (1997) 92 A Crim R 390
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Wasow (1985) 18 A Crim R 348
- Zheng v R (1995) 83 A Crim R 572
- Zoneff v The Queen (2000) 200 CLR 234