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Court of Criminal Appeal 1 October 2021

Pham v R

[2021] NSWCCA 234

DrugsFirearms & weapons
CRIME APPEAL AGAINST SENTENCE TAKING FURTHER OFFENCES INTO ACCOUNT ERROR IN FORM 1 PROCEDURE INCORRECT OFFENCE LISTED ON FORM 1 ENGLISH NOT OFFENDER’S FIRST LANGUAGE

Citation: Pham v R [2021] NSWCCA 234
Court: NSW Court of Criminal Appeal
Date: 1 October 2021
Judges: Beech-Jones CJ at CL; R A Hulme J; Wilson J

Background

The appellant, a Vietnamese-born refugee with a significant drug-related criminal history, pleaded guilty in the District Court at Campbelltown to supplying heroin and possessing a taser. Police had executed a search warrant at his home and found 22.47 grams of heroin, 3.65 grams of methylamphetamine, $4,500 in cash, and a working taser. The sentencing judge imposed an aggregate term of six years' imprisonment with a non-parole period of four years, together with indicative sentences of five years and three months for the drug supply offence and 18 months for the weapons offence.

Two further offences were taken into account under the Form 1 procedure: an offence of dealing with proceeds of crime, and a drug offence. The appellant sought leave to appeal on four grounds, including a procedural error in the Form 1 process and manifest excess in the aggregate sentence.

  • Whether the sentencing judge failed to comply with the requirements of s 33(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) when taking further offences into account, and whether this resulted in the appellant being sentenced on a false basis
  • Whether the sentencing judge failed to give adequate weight to the appellant's mental health conditions in assessing moral culpability and specific deterrence
  • Whether the sentencing judge erred in assessing the objective seriousness of the two offences
  • Whether the aggregate sentence of six years was manifestly excessive

Decision

Ground 1: Form 1 procedural error. The Court found two failures in the Form 1 procedure. First, the sentencing judge did not personally ask the appellant whether he wished the further offences to be taken into account, as required by s 33 of the Crimes (Sentencing Procedure) Act. This omission was particularly significant given that English was not the appellant's first language. Second, the Form 1 document listed the drug offence as "possess prohibited drug (3.65g methylamphetamine)" when the parties appear to have intended that an offence of supply be taken into account. The Court accepted that this created a false basis for sentencing, upholding the ground on that basis.

Grounds 2 and 3: Mental health and objective seriousness. The Court did not uphold these grounds. The sentencing judge had expressly accepted the appellant's mental health conditions and engaged with them in the sentencing exercise. The findings on objective seriousness were also open on the evidence.

Ground 4: Manifest excess. The Court upheld this ground. The quantity of heroin involved (22.47 grams) sat at the lower end of the indictable range under the Drug Misuse and Trafficking Act 1985 (NSW), and the seven-year starting point used for the drug supply offence was erroneously high in that context. While the Form 1 offences and criminal history had some upward influence, an offender's sentence cannot be elevated beyond the range appropriate to the objective seriousness of the offence. The aggregate sentence of six years was held to be manifestly excessive, with the indicative sentence for the drug supply offence identified as the dominant driver.

Because the Form 1 error meant the Court could not simply substitute a different sentence, it quashed the sentence and remitted the matter for resentencing in the District Court.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • Sentence imposed in the District Court on 22 June 2020 quashed
  • Matter remitted to the District Court at Campbelltown for resentencing
  • Matter listed for mention in the District Court at Campbelltown on 7 October 2021

Key Takeaways

  • Under s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court must personally ask the offender whether they wish further offences to be taken into account; failure to do so constitutes a procedural error, and this obligation carries additional weight where the offender is not a native English speaker.
  • A Form 1 that incorrectly describes the further offence being taken into account can result in the offender being sentenced on a false basis, even where the parties may have shared a common underlying intention.
  • Sentencing proportionality requires that an aggregate sentence remain anchored to the objective seriousness of the offences; subjective aggravating factors such as criminal history and breach of parole cannot elevate a sentence beyond the range appropriate to the objective conduct.
  • Where the Form 1 procedure has been conducted incorrectly, the Court of Criminal Appeal may be unable to resentence the appellant itself and may instead remit the matter to the sentencing court.
  • Although an appeal does not lie directly against indicative sentences in an aggregate sentencing framework, those indicative sentences remain a relevant guide for identifying whether error has infected the aggregate sentence: JM v R (2014) 246 A Crim R 528.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3, s 33, s 54B(4)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Crimes Act 1914 (Cth), s 16BA

Cases
- Aslan v R [2014] NSWCCA 114
- Ghalbouni v R [2020] NSWCCA 21
- JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Kabir v R [2020] NSWCCA 139
- LS v R [2020] NSWCCA 27
- R v Brandt [2004] NSWCCA 3; 42 MVR 262
- R v Felton [2002] NSWCCA 443; 135 A Crim R 328
- R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
- R v Pearce [2020] NSWCCA 61
- Woodward v R [2017] NSWCCA 44