Pham v R [2021] NSWCCA 234

Pham v R [2021] NSWCCA 234

Ground 1 was upheld because the sentencing judge did not comply with the s 33 procedure, the Form 1 described the further drug offence as possession rather than supply, there was an issue about the applicant's signature on the Form 1, and English was not the applicant's first language, creating doubt as to whether he personally understood what the judge was being asked to do. Ground 4 was also upheld because the 7-year starting point and 5 years and 3 months indicative sentence for the drug supply offence were erroneously high given the modest quantity of heroin within the indictable range, the maximum penalty, and sentencing statistics, making the aggregate sentence manifestly excessive....

Jurisdiction
Australia
Judgment Date
01 October 2021
Procedural Posture
Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal From a District Court Sentence
Outcome
Leave to appeal granted; appeal allowed; District Court sentence quashed; matter remitted for resentencing.
Legal Topics
['appeal Against Sentence' 'form 1 Offences' 'crimes (sentencing Procedure) Act 1999 (nsw), S 33' 'aggregate Sentence' 'supplying a Prohibited Drug' 'possessing a Prohibited Weapon' 'manifest Excess' 'guilty Plea Discount']
['criminal Law' 'sentencing' 'criminal Procedure'] ['appeal Against Sentence' 'form 1 Offences' 'crimes (sentencing Procedure) Act 1999 (nsw), S 33' 'aggregate Sentence' 'supplying a Prohibited Drug' 'possessing a Prohibited Weapon' 'manifest Excess' 'guilty Plea Discount']

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Procedural Posture

Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal From a District Court Sentence

Legal Issues

  1. 1 ['Whether the sentencing judge failed to comply with s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) when taking Form 1 offences into account.' 'Whether the applicant was sentenced on a false basis because the Form 1 described the methylamphetamine offence as possession rather than supply.' "Whether the sentencing judge erred by failing to take the applicant's mental problems into account in assessing moral culpability or specific deterrence." 'Whether the sentencing judge erred in assessing the objective seriousness of the offences.' 'Whether the aggregate sentence was manifestly excessive.']

Ratio Decidendi

Ground 1 was upheld because the sentencing judge did not comply with the s 33 procedure, the Form 1 described the further drug offence as possession rather than supply, there was an issue about the applicant's signature on the Form 1, and English was not the applicant's first language, creating doubt as to whether he personally understood what the judge was being asked to do. Ground 4 was also upheld because the 7-year starting point and 5 years and 3 months indicative sentence for the drug supply offence were erroneously high given the modest quantity of heroin within the indictable range, the maximum penalty, and sentencing statistics, making the aggregate sentence manifestly excessive....

Court Disposition

Leave to appeal granted; appeal allowed; District Court sentence quashed; matter remitted for resentencing.

Orders

  • ['Grant leave to appeal against sentence.' 'Allow the appeal.' 'Quash the sentence imposed in the District Court on 22 June 2020 and remit the matter for resentencing in the District Court.' 'List the matter in the District Court at Campbelltown for mention on 7 October 2021.']