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Court of Criminal Appeal 7 February 2011

Pham v R

[2011] NSWCCA 3

Drugs

Citation: Pham v R [2011] NSWCCA 3
Court: NSW Court of Criminal Appeal
Date: 7 February 2011
Judges: McClellan CJ at CL, Hislop J, Price J

Background

The appellant pleaded guilty to cultivating 305 cannabis plants by enhanced indoor means at a residential property in Blair Athol, NSW, on 14 May 2008. The offence was charged under s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 at the large commercial quantity threshold, carrying a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years.

At sentencing, the appellant gave evidence that he had been recruited by a man known only as "Elton," to whom he owed a $5,000 debt, and that he had acted under duress. The sentencing judge found the appellant to be a witness entirely lacking in credibility, pointing to inconsistencies between his evidence at sentencing and an earlier aborted sentencing hearing, as well as multiple implausible claims. The appellant was sentenced to a non-parole period of five years commencing 14 May 2008, with a balance of term of three years.

The appellant sought leave to appeal against sentence on six grounds, challenging the sentencing judge's findings about his role, his awareness that his wife owned the premises, his alleged motive of greed, the finding that he gave false evidence, and the conduct of the Crown prosecutor.

  • Whether the sentencing judge erred by misreading the written agreed facts when finding that the appellant knew his wife owned the Blair Athol premises
  • Whether the sentencing judge erred in characterising the appellant's role and motivation
  • Whether the sentencing judge was wrong to find that the appellant gave false evidence during the sentencing proceedings
  • Whether the sentence was excessive, on the basis that the above errors were established
  • Whether the sentencing proceedings miscarried due to the Crown prosecutor's conduct

Decision

Grounds 2 to 5: Errors in factual findings and credibility

The appellant argued that the sentencing judge had confused references in the agreed facts to the Blair Athol premises with the St Helens Park property, leading to an erroneous finding that the appellant knew his wife owned Blair Athol. The Court of Criminal Appeal reviewed the sentencing transcript in detail and rejected this argument. The sentencing judge had clearly distinguished between the two properties and had based the finding about the wife's ownership on documentary evidence: a settlement letter addressed to the appellant's wife at the Blair Athol address, found in an unsealed envelope inside the appellant's briefcase on the driver's seat of his car.

The appellant's claim that he had not opened the envelope, and that he did not recognise his wife's name because it was common in Vietnamese, was found by the sentencing judge to be implausible. That conclusion was well open on the evidence. No error in the judge's approach to the agreed facts, the appellant's role, his motivation, or his credibility was established.

Ground 1: Excessive sentence

Senior counsel for the appellant conceded this ground could only succeed if error were demonstrated under grounds 2 to 5. As no such error was established, the ground failed.

Ground 6: Conduct of Crown prosecutor

The appellant's trial counsel had raised a complaint at sentencing about inappropriate emotional comments made by the Crown prosecutor. On appeal, senior counsel did not press this ground. The Court noted it was correct not to do so. The sentencing judge had addressed the conduct at the time, observing that he was not sitting as a jury and that any such comments had been disregarded. No miscarriage of justice was found.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • No error was established where a sentencing judge draws adverse credibility findings from inconsistencies between a defendant's evidence at successive sentencing hearings, provided those findings are grounded in the evidence.
  • A sentencing judge's factual findings based on documentary evidence found at the scene of arrest (here, an unsealed envelope in the defendant's own vehicle) can properly inform conclusions about what the defendant knew, even where the defendant disputes awareness of the document's contents.
  • Where an appellant concedes that the "excessive sentence" ground depends entirely on establishing error in other grounds, failure of those other grounds is fatal to the sentence challenge.
  • Inappropriate remarks by a Crown prosecutor do not automatically give rise to a miscarriage of justice where the sentencing judge is not a jury and expressly states the remarks have been disregarded.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a non-parole period of five years for a large commercial quantity cannabis cultivation offence (carrying a 10-year standard non-parole period) was not shown to be excessive on the facts.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A

Cases cited: No cases were cited in the judgment.