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District Court 22 June 2020

R v Pham

[2020] NSWDC 376

DrugsFirearms & weapons
SUPPLY A PROHIBITED DRUG

Citation: R v Pham [2020] NSWDC 376
Court: District Court of New South Wales
Date: 22 June 2020
Judge(s): Colefax SC DCJ

Background

The offender, a 51-year-old Vietnamese-born man who arrived in Australia as a refugee in 1997, was found with 22.47 grams of heroin, 3.65 grams of methylamphetamine, $4,500 in cash, a Taser, a pin-coded safe, multiple mobile phones, and a drug ledger when police executed a search warrant at his Cabramatta home in June 2019. The court drew the inference that he was actively dealing in heroin, an inference reinforced by significant security modifications to the premises including metal bars, security doors, and CCTV.

At the time of the search, the offender was on parole for a prior drug offence. He was arrested the following day and remained in custody. His parole was subsequently revoked, with the balance expiring on 1 December 2019.

The offender pleaded guilty at the first available opportunity to two principal offences: supply of a prohibited drug (heroin) in a quantity greater than the indictable but less than the commercial amount, and possession of a prohibited weapon (the Taser) without a permit. Two further matters were placed on a Form 1 to be taken into account: supply of methylamphetamine in a quantity greater than the small but less than the indictable amount, and dealing with the proceeds of crime.

Legal Issues

  • What was the appropriate aggregate sentence for the two principal offences, taking into account the Form 1 matters?
  • What discount applied by reason of the early guilty plea?
  • How should the offender's mental health, background, and rehabilitation prospects affect sentencing, particularly regarding general and specific deterrence?
  • Whether special circumstances existed to vary the standard ratio between the non-parole period and the head sentence.
  • What start date should apply to the sentence?

Decision

Objective seriousness: The court assessed the first principal offence (heroin supply) as just below the midrange for offences of its kind, and the second (Taser possession) as towards but not at the bottom of the range (at [30]). Both offences were aggravated by the fact the offender was on parole at the time (at [31]).

Criminal history: The Crown did not press the offender's criminal record as an additional statutory aggravating factor, so the court declined to treat it as one. However, the history meant the offender was not entitled to any leniency extended to first offenders (at [32]).

Plea discount and deterrence: The early guilty plea attracted a 25% discount applied to the indicative sentences (at [35]). Because of the offender's mental health issues, including borderline intellectual functioning, PTSD, and adjustment disorder, the court found the principles of general deterrence were not fully engaged. Specific deterrence and community protection, however, remained fully engaged (at [36]). The court was not satisfied the offender's expressed remorse was genuine, noting only one rehabilitation attempt over many years, and assessed his prospects of rehabilitation as guarded (at [29], [37]).

Special circumstances and start date: The court made a modest finding of special circumstances to vary the ratio of the head sentence to the non-parole period, citing the offender's status as a non-English-speaking inmate and the harsh conditions prisoners were experiencing due to COVID-19 restrictions on visits (at [39]). As a deliberate act of leniency, the court backdated the sentence to the date of arrest, 19 June 2019, rather than the later date when the parole balance expired (at [38]).

Orders Made

  • Aggregate term of imprisonment of 6 years, comprising a non-parole period of 4 years from 19 June 2019 (expiring 18 June 2023) and a balance of term of 2 years (expiring 18 June 2025).
  • Confiscation order made in accordance with short minutes of order signed on the day of sentencing.

Key Takeaways

  • The District Court confirmed that being on parole at the time of offending constitutes an additional aggravating factor for each offence to which it applies, regardless of whether the prior criminal history is separately pressed as an aggravating matter (at [31]-[32]).
  • A 25% plea discount applied where the offender entered a guilty plea at the first available opportunity, consistent with established sentencing practice under the relevant legislative framework (at [35]).
  • Where an offender's mental health conditions include borderline intellectual functioning, PTSD, and adjustment disorder, the sentencing court may find that general deterrence is not fully engaged, though this does not diminish the role of specific deterrence or community protection (at [36]).
  • The COVID-19 pandemic and its effect on prison conditions, specifically the restriction of visitor access, was accepted as a relevant consideration supporting a finding of special circumstances to adjust the non-parole period ratio (at [39]).
  • Backdating a sentence to the date of arrest, rather than to the expiry of a revoked parole period, is available as a deliberate exercise of leniency in appropriate circumstances (at [38]).

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s25(1); Weapons Prohibition Act 1998 (NSW), s7(1).

Cases
- Not stated