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10
Court of Criminal Appeal 26 June 2014

PHAM v R

[2014] NSWCCA 115

Drugs
CRIMINAL LAW SENTENCE APPEAL WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: PHAM v R [2014] NSWCCA 115
Court: Court of Criminal Appeal, New South Wales
Date: 26 June 2014
Judge(s): Hoeben CJ at CL; Adams J; Hall J

Background

The appellant pleaded guilty in the Local Court to two counts of supplying a commercial quantity of a prohibited drug under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). Count 1 involved the supply of 299.2 grams of MDMA; Count 2 involved the supply of 1,000.8 grams of cocaine at a purity of 63 percent. A further matter involving the supply of an indictable quantity of Methorphan was taken into account on a Form 1.

The offences arose from a police undercover operation in early 2012. Intercepted phone calls revealed the appellant sourcing and coordinating drug supply alongside a co-offender, who managed the customer side of the operation. The cocaine was delivered to an undercover operative's hotel room in Pyrmont before police moved in and made arrests.

The sentencing judge in the Sydney District Court imposed a total effective sentence of imprisonment with an eight-year non-parole period, commencing February 2012 and expiring February 2024. The appellant sought leave to appeal that sentence to the Court of Criminal Appeal.

  • Whether the sentencing judge's reasoning was infected by "Muldrock error," meaning an approach that treated the standard non-parole period as a fixed numerical starting point rather than as a guidepost (as required following Muldrock v R [2011] HCA 39).
  • Whether the total sentence imposed was manifestly excessive in all the circumstances.

Decision

On the Muldrock error ground, the Court found no such error in the sentencing judge's reasoning. The primary judge had expressly stated that the standard non-parole periods "need not be applied" in circumstances where the offending did not fall in the middle range of objective seriousness, and that those periods remained a guide rather than a mandatory reference point. That approach was consistent with Muldrock.

On the manifest excess ground, the Court applied the established appellate test: the sentence must be shown to be "unreasonable or plainly unjust" before an appellate court will intervene in a sentencing discretion. The Court found the primary judge had correctly assessed the offending as very serious, placed the appellant's role within the middle range of participation (while noting he appeared closer to the ultimate supplier than his co-offender), and gave appropriate weight to the appellant's subjective circumstances, including his family situation and strong prospects of rehabilitation.

The Court noted that while the sentences were heavy, they were not out of step with the objective gravity of the offending. Principles of general deterrence and denunciation were described as looming large in cases of substantial drug supply, even though the sentencing judge had not emphasised them expressly. No error in the exercise of the sentencing discretion was identified.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • No Muldrock error arises where a sentencing judge treats standard non-parole periods as a guiding reference point rather than a fixed numerical starting point, and explicitly recognises that the period need not be applied to offending outside the middle range.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that appellate intervention in sentencing requires the applicant to demonstrate that the sentence is "unreasonable or plainly unjust," a threshold the appellant failed to meet.
  • A heavy sentence is not necessarily manifestly excessive; the Court distinguished between a sentence that is stern and one that falls outside the proper range of discretion.
  • Where an offender coordinates the sourcing and delivery of commercial and large commercial quantities of drugs, a finding that their role is significant and within the middle range of participation supports substantial custodial sentences.
  • General deterrence and denunciation remain prominent sentencing considerations in cases involving large-scale drug supply, even when not emphasised expressly in the primary judge's reasons.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases
- Muldrock v R [2011] HCA 39; 244 CLR 120
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Aoun v R [2011] NSWCCA 284
- Butler v R [2012] NSWCCA 23
- Collier v R [2012] NSWCCA 213
- Dang v R [2014] NSWCCA 47
- Efstathiadis v R [2009] NSWCCA 319
- Essex v R [2013] NSWCCA 11
- Hill v R [2012] NSWCCA 265
- Hsu v R [2012] NSWCCA 248
- Lipton v R [2010] NSWCCA 175
- Ly v R [2008] NSWCCA 262
- Parris v R [2013] NSWCCA 5
- Paxton v R [2011] NSWCCA 242
- R v Ehrlich [2012] NSWCCA 38
- Regina v Howard [2004] NSWCCA 348
- Wienand v R [2013] NSWCCA 202