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Court of Criminal Appeal 17 September 2010

Pham v R

[2010] NSWCCA 208

Drugs
CRIMINAL LAW PARTICULAR OFFENCES DRUG OFFENCES CRIMINAL LAW PAROLE PERIOD NO ERROR FOUND

Citation: Pham v R [2010] NSWCCA 208
Court: New South Wales Court of Criminal Appeal
Date: 17 September 2010
Judge(s): Macfarlan JA, Simpson J, Hall J

Background

The appellant was convicted in the District Court on his own plea of guilty to knowingly taking part in the supply of not less than the large commercial quantity of pseudoephedrine, an offence under the Drug Misuse and Trafficking Act 1985. The offence carried a maximum penalty of life imprisonment and attracted a standard non-parole period of 15 years.

The facts disclosed an organised operation in which the appellant flew between Brisbane and Sydney on several occasions over two weeks, negotiated with co-offenders, inspected the drug for quality, and arranged for it to be transported north by car. Police intercepted the vehicle near Wyong, recovering over 10 kilograms of pseudoephedrine. The appellant was to receive $20,000 for his role, and the agreed Statement of Facts expressly acknowledged the offending was not an isolated incident.

The District Court sentenced the appellant to 10 years' imprisonment with a non-parole period of 6 years. The appellant sought leave to appeal, arguing that two errors in the sentencing remarks had produced a more severe sentence than was warranted. He did not contend the sentence was manifestly excessive in itself.

  • Whether the sentencing judge erred in finding there was no evidence of real contrition or remorse, given the contents of the pre-sentence and psychological reports.
  • Whether the sentencing judge erred in assessing the objective criminality of the offence.
  • Whether the sentencing judge failed to take into account that pseudoephedrine is a precursor drug for the manufacture of methylamphetamine, rather than a harmful end-product in itself.
  • Whether the sentencing judge failed to provide adequate reasons for placing the offence in the middle range of objective seriousness when applying the standard non-parole period.

Decision

On the remorse ground, the Court of Criminal Appeal examined the pre-sentence report and the psychologist's report closely. Both assessors described the appellant's remorse in qualified terms, noting it appeared "seemingly appropriate" and that his account of his involvement was inconsistent with, and significantly downplayed, the agreed facts. The Court found the sentencing judge's conclusion that there was no real contrition was open on the evidence and disclosed no error.

On the precursor drug argument, the Court rejected the contention that the sentencing judge was required to treat pseudoephedrine as less serious because it is a precursor rather than a directly harmful drug. Simpson J reasoned that the legislature had already factored in the relative harmfulness of each drug when setting the threshold quantities for each level of offence. The large commercial quantity for pseudoephedrine (5 kilograms) is far higher than for methylamphetamine (0.5 kilograms), reflecting its lesser immediate harmfulness. Because the legislature had built this distinction into the statutory scheme, a sentencing court does not commit error by failing to apply a further discount on that basis. This conclusion was reinforced by the High Court's decision in Adams v The Queen.

On the adequacy of reasons for the mid-range finding, the Court found the sentencing judge had engaged in a thorough analysis of the appellant's role, the degree of planning, and the scale of the enterprise before arriving at that characterisation. No separate, additional statement of reasons was required.

The Court was satisfied the sentence was appropriate and that no different sentence ought to have been imposed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that qualified or hedged expressions of remorse in pre-sentence and psychological reports can support a sentencing judge's finding that no real contrition has been established, particularly where the offender's account minimises involvement that is otherwise established by agreed facts.
  • Under the Drug Misuse and Trafficking Act 1985, the legislature has already accounted for the relative harmfulness of a drug, including whether it is a precursor, by setting different threshold quantities for each category of offence. A sentencing judge does not err by declining to apply a further sentencing discount on the basis that the drug is a precursor rather than a final harmful product.
  • In dismissing the appeal, the Court applied the principle from Adams v The Queen that the nature of the particular drug does not alter the applicable penalty once the relevant quantity threshold is met.
  • No error was established in the sentencing judge's failure to separately articulate reasons for a mid-range objective seriousness finding, where the remarks on sentence contained a detailed analysis of the offender's conduct leading to that conclusion.
  • A sentence of 10 years with a 6-year non-parole period for supply of over 10 kilograms of pseudoephedrine, against a maximum of life imprisonment and a standard non-parole period of 15 years, was upheld as appropriate on these facts.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 33(3)(a), Schedule 1
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A

Cases:
- Adams v The Queen [2008] HCA 15; 234 CLR 143
- R v Baleisuva [2004] NSWCCA 344
- R v Butters [2010] NSWCCA 1
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Way [2004] NSWCCA 131; 60 NSWLR 168