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10
Court of Criminal Appeal 25 September 2013

Pham v R

[2013] NSWCCA 217

Drugs
CRIME SENTENCE APPEAL DRUG SUPPLY LARGE COMMERCIAL QUANTITY WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Pham v R [2013] NSWCCA 217
Court: NSW Court of Criminal Appeal
Date: 25 September 2013
Judges: Hoeben CJ at CL, Fullerton J, McCallum J

Background

The appellant pleaded guilty in the District Court to one charge of supplying a large commercial quantity of cocaine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The large commercial quantity threshold for cocaine is 1 kilogram; the quantity involved in this case was 30 kilograms. The maximum penalty for the offence is life imprisonment, and the offence carries a standard non-parole period of 15 years.

The facts arose from a police operation in which approximately 240 kilograms of cocaine, hidden in shipping containers imported from Mexico, was intercepted by the Australian Federal Police and replaced with an inert substance. The appellant was not involved in the importation. Police used a mobile phone recovered from the operation to make contact with distribution networks, ultimately arranging an undercover delivery to the appellant. He drove to the meeting point with a co-offender, who confirmed a pre-arranged code and collected the 30-kilogram substituted package before both were arrested.

The appellant told police he had been recruited through a coffee shop meeting some six months earlier, had been given a mobile phone and instructed to follow directions in exchange for payment of $1,000 per kilogram handled. He acknowledged expecting to collect something "fairly sizeable," though he said he did not know the precise quantity beforehand. The sentencing judge (Cogswell DCJ) imposed a total sentence of 13 years and 6 months, with a non-parole period of 9 years and 6 months, after applying a 25 percent discount for the early guilty plea.

  • Whether the sentencing judge placed excessive weight on the quantity of drugs (30 times the large commercial quantity threshold) in assessing objective seriousness
  • Whether the total sentence of 13 years and 6 months, with a non-parole period of 9 years and 6 months, was manifestly excessive
  • Whether the post-sentence decision in Muldrock v R (2011) 244 CLR 120 affected the validity of the sentencing approach

Decision

The Court granted leave to appeal but dismissed the appeal, finding no error in the sentencing judge's approach or outcome. McCallum J (with whom Hoeben CJ at CL and Fullerton J agreed) examined the remarks on sentence in detail and concluded that the judge had conducted a careful and thoughtful exercise of the sentencing discretion.

On the question of quantity, the Court accepted that the sentencing judge had not impermissibly allowed the quantity to overwhelm other factors. The judge had explicitly placed the offence at the lower end of the mid-range of objective seriousness, specifically acknowledging the appellant's limited role as a courier operating under instructions. The starting point of 18 years (before discounts) was not found to be unreasonably high given those circumstances.

The Court reviewed a series of comparable cases involving supply of large commercial quantities, including cases involving couriers collecting drugs over short periods. While those comparisons showed the sentence to be stern, they did not establish that it was outside the range available to the sentencing judge. The Court reaffirmed that an appellate court must not substitute its own view merely because it might have exercised the discretion differently; the test is whether the sentence was unreasonable or plainly unjust.

On the Muldrock ground, the Court noted that the sentencing judge had been required, at the time of sentencing, to assess where the offence fell on a range of objective seriousness in accordance with the then-applicable authorities. Although Muldrock later cast doubt on that approach, the Court found this did not give rise to appealable error on the facts of this case.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a quantity 30 times the large commercial threshold is a weighty sentencing consideration, but its prominence does not automatically constitute error where the sentencing judge demonstrably balanced it against other factors such as the offender's limited role.
  • A sentence is not manifestly excessive simply because it is stern or because the appellate court might have imposed a lesser term; the applicable standard requires the sentence to be unreasonable or plainly unjust, drawing on Dinsdale v R (2002) 202 CLR 321 and Markarian v The Queen (2005) 228 CLR 357.
  • Comparable cases involving couriers collecting drugs over short periods produced non-parole periods in a range of roughly 11 to 15-plus years (before discounts), and the sentence in this case was assessed as falling within that broad discretionary range.
  • Where a sentencing judge's remarks clearly record that an offender expressly agreed to receive a specified quantity, a subsequent submission that the offender was unaware of the exact amount will not displace that factual finding unless it is apparent the judge accepted the offender's version.
  • The Muldrock re-characterisation of the standard non-parole period's role in sentencing did not automatically vitiate sentences passed under the prior approach, at least where no error in the actual outcome was demonstrated.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) and Schedule 1
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 54B and Table item 19

Cases
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Dinsdale v R [2002] HCA 54; (2002) 202 CLR 321
- Wong v R [2001] HCA 64; (2001) 207 CLR 584
- Hili v R [2010] HCA 45; (2010) 242 CLR 520
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- Elmir v R [2009] NSWCCA 22; (2009) 193 A Crim R 87
- Wang v R [2009] NSWCCA 223
- Sevastopoulos v R [2011] NSWCCA 201
- R v Calcutt [2012] NSWCCA 40
- Coetzee v R [2007] NSWCCA 12
- Stevens v R [2007] NSWCCA 252
- Vuni v R [2006] NSWCCA 171
- R v Hamzy (1994) 74 A Crim R 341