Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Pham v R [2011] NSWCCA 3 Hearing dates: 3 December 2010 Decision date: 07 February 2011 Before: McClellan CJ at CL at 1, Hislop J at 2, Price J at 22 Decision: Leave to appeal granted; appeal dismissed. Legislation Cited: Drug Misuse and Trafficking Act 1985 Criminal Procedure Act 1986 Crimes (Sentencing Procedure) Act 1999 Category: Principal judgment Parties: Tuan Van Pham (Applicant) Regina (Crown) Representation: Counsel: G. Nicholson QC (Applicant) D. Arnott SC (Crown) Solicitors: Audix Legal (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2008/16408 Decision under appeal Jurisdiction: 9101 Date of Decision: 2009-09-10 00:00:00 Before: Keleman DCJ File Number(s): 2008/16408 Judgment 1McCLELLAN CJ at CL : I agree with Hislop J. 2HISLOP J : The applicant pleaded guilty to a charge pursuant to the Drug Misuse and Trafficking Act 1985, s23(2)(a), that on 14May 2008 at Blair Athol, New South Wales, he did cultivate a number of prohibited plants by enhanced indoor means, to wit 305 cannabis plants, which was not less than the large commercial quantity applicable to that prohibited plant. The maximum penalty for the offence was imprisonment for 20years. A standard non parole period of 10years imprisonment was applicable. 3On 10September 2009 the applicant was sentenced to imprisonment in respect of the offence for a non parole period of five years to commence on 14May 2008 and to expire on 13May 2013 with a balance of term of three years to commence on 14May 2013 and expire on 13May 2016. 4His Honour dealt, under s166 of the Criminal Procedure Act 1986, with a related offence of possess prohibited drug (cannabis leaf). The applicant pleaded guilty to this charge and was convicted. No other penalty was imposed (s10A Crimes (Sentencing Procedure) Act 1999). 5The applicant has sought leave to appeal against sentence on the grounds that: "1. The sentence is excessive in the circumstances. 2. The court erred in determining the role of the applicant in the commission of the offence on a mistaken view of the evidence. 3. The court erred in finding that the applicant was aware that his wife was the owner of the premises on a mistaken view of the evidence. 4. The court erred in finding that the applicant was motivated by greed without due regard to the evidence. 5. The court erred in determining the applicant gave false evidence during the sentence proceedings. 6. The sentence proceedings miscarried by virtue of the conduct of the legal representative for the prosecution." 6Certain facts were agreed in writing. Those facts, in short, were that at about 7.20am on 14May 2008 the police attended premises at Blair Athol and spoke to the applicant who was standing outside those premises. The applicant and the police entered the premises in which was located a sophisticated hydroponic set-up. The applicant told police he looked after the marijuana plants, watering them, and was paid $1000 by "Elton". The applicant was arrested and conveyed to the police station where he declined to participate in an electronically recorded interview. A search warrant was obtained and executed later that morning. The search revealed six rooms containing a total of 305cannabis plants and hydroponic equipment used in cultivating those plants. It also revealed the applicant's fingerprints on lamp shades, a transformer and globes being part of the hydroponic equipment. The applicant's motor vehicle was parked in front of the premises. The vehicle was searched and police located several personal letters in the name of the applicant and other documentation. 7The applicant gave evidence at the sentencing hearing. His Honour summarised that evidence, in part, as follows: "The offender gave evidence that he became involved in the present offence as a result of meeting a person, whom he only knew as Elton, in approximately January 2008 at Cabramatta when he was out buying food. His evidence was that he had first met the person Elton in a refugee camp in Hong Kong and did not see him again until he met him in approximately January 2008 in Cabramatta. His evidence was that when he met Elton on this occasion in Cabramatta he told Elton about his financial situation and his evidence was that Elton said that he would help him. His evidence was that Elton asked if he had been back to Vietnam and he replied that he had not. He also said he told Elton that he and his wife had separated. He stated that Elton asked for his address and later came to visit him a couple of times. His evidence was that Elton became aware of his situation and offered to lend him $5000 so that he could go back to Vietnam. His evidence was that he told Elton that it would be difficult for him to repay the money and Elton indicated that it was not a problem. His evidence was that in early February 2008 he borrowed $5000 from Elton in order to visit his daughter in Vietnam. He travelled to Vietnam on 25February 2008 and returned on 9March 2008. His evidence was that after he returned to Australia he met Elton and Elton told him that if he could not repay the money that he had loaned him, the offender had to work for him. His evidence was that he told Elton that he could cut grass and repay the debt. His evidence was that Elton did not agree with that. His evidence was that he asked Elton what sort of work he wanted him to do. His evidence was that Elton then took him to the property at [Blair Athol] where the offender said that he saw a number of plants that were already very high. His evidence was that he told Elton that it was illegal work and that he could not do this work. His evidence was that Elton said that he had to do that work and, if anything happened to the property, he would hold the offender responsible and he also said that Elton made some threats at the time, so that he had no choice as he was thinking of his family and children. He said that as a result he agreed to work for Elton." 8The applicant was born in 1953. He was married to Dung Thi Pham. The Blair Athol premises were owned by his wife. 9His Honour concluded: "Having had the opportunity of observing the offender give evidence in these proceedings and even after making due allowance for the use of an interpreter, the offender presented as a most unimpressive witness and a witness totally lacking in credibility. On a number of occasions the offender gave evidence that was inconsistent with evidence he had given on a prior occasion during aborted sentencing proceedings, which inconsistencies related to significant matters, and there were many aspects of his evidence which were simply implausible." Grounds 2, 3, 4 and 5: The court erred in determining the role of the applicant in the commission of the offence on a mistaken view of the evidence, etc . 10The facts agreed in writing included the following: "In the vehicle out the front of the house Police located several personal letters in the name of the offender including documentation regarding the purchase of a premises at...St Helens Park." 11His Honour, in his remarks on sentence, referred specifically to those facts. After reference to further agreed facts, his Honour said in his remarks on sentence: "I have now concluded that part of the facts which are agreed. In addition to documents relating to the purchase of premises at St Helens Park, police also located in the offender's motor vehicle a yellow envelope addressed to Dung Thi Pham [at the Blair Athol address]. This envelope was found in the offender's briefcase which was found on the driver's seat of the vehicle. The envelope was, when found by police, closed but not sealed. The envelope contained a letter dated 3April 2008 from My T Nguyen, Solicitors addressed to Dung Thi Pham [at the Blair Athol premises] confirming that her purchase of that property was settled on 7March 2008. The letter also contained various attachments, including the contract of sale for those premises, in which she was nominated as the purchaser." 12His Honour further said: "The offender's claim that he was not aware that the house at [Blair Athol], at the time of his arrest, belonged to his wife is simply unbelievable. His wife had purchased the property and the settlement of that property had occurred on 7 March 2008, over two months prior to the offenders' arrest for the present offence. At the time of his arrest the settlement letter sent to his wife with attachments, including the contract for the sale of that property, was found in an unsealed envelope, addressed to his wife, in his briefcase found on the driver's seat of his car. The offender's claim in evidence that he did not think the person whose name was on the envelope was his wife, because it was a very common name in Vietnamese, is in all the circumstances, simply unbelievable and implausible. His evidence that he had seen the envelope in the letterbox at [Blair Athol] for a number of days before taking it, up to two weeks before his arrest when it was slightly raining, in order to give to the person Elton, is also unbelievable and implausible. His evidence that he was not aware of the contents of the unsealed envelope is also implausible. It is relevant to note that a gas bill in the name of D Pham was also located in the house by police after the offender's arrest. The offender's evidence that he first learned that his wife had purchased [Blair Athol] only after his arrest, when his wife visited him in gaol, is also implausible." 13The applicant, in his written submissions, contended his Honour had erroneously proceeded on the basis the written agreed facts referred to the premises at Blair Athol and not the St Helens Park premises. It was this evidence which was the starting point for his Honour's incredulity as to the applicant's version of the facts and which led his Honour to disbelieve him overall. 14However, it is apparent that his Honour was distinguishing in his remarks on sentence between the agreed facts as to the documents relating to the St Helens Park premises and additional evidence given during the hearing relating to the Blair Athol premises. 15Senior counsel for the applicant acknowledged the error in the written submissions. He then submitted: "Against that background [ie the background in which the additional evidence came before the court] my sole submission on the fact finding is it was an unsatisfactory basis upon which to make such an adverse finding to the applicant." 16He contended the basis for his Honour's fact finding was unsatisfactory because: (a) the situation arose for the first time in cross examination; (b) his Honour operated on the basis of an assurance given by the prosecutor that she had been told something by an officer and this could be proceeded on as an accepted fact; (c) the applicant did not accept the yellow envelope contained the contract for the purchase of the Blair Athol property; (d) the applicant's legal representative sought to ask questions of the police officer which was precluded by his Honour as the applicant was then in his own case; (e) the police officer was not called and there was no cross examination of him. 17A review of the transcript discloses, in short, that: (a) the additional evidence was first raised by the Crown following a luncheon adjournment. At the time the Crown case had closed, the applicant had given evidence in chief and had been cross examined. The Crown had indicated it had no further questions of the applicant. His Honour, however, suggested the Crown may wish to consider whether certain other matters should be put to the applicant; (b) on resumption the Crown said: "...Constable Kral has shown me just today the - a yellow envelope which was found during a search warrant which was conducted after Constable Kral arrested the offender and took him back to the police station. Now number one in that exhibit book entry is documents relating to purchase of house located in the car. Those documents are exhibit - are, sorry, numbered one and are in our possession, they're a yellow envelope addressed to the offender's wife and they're the congratulating documents and the contract for the sale of [the Blair Athol premises]. They're also addressed to his wife at [the Blair Athol premises]." (c) the proceedings were then adjourned at the request of the applicant's counsel for the purpose of obtaining instructions from the applicant. Those instructions were obtained and the court was informed: "The accused's position is that the envelope with some contents...was in his car at the time...We agree that this envelope with material in it was there but we don't know - but we're not prepared to agree that it was this contract." His Honour said "Well, the police officer can give evidence if that's the case, as to what was..." (d) counsel for the applicant informed the court he would need to ask the police officer some questions and look at the video and that he wished to ask his client some further questions in chief. His Honour said that so far as cross examining the police officer "You won't be asking him now, you're in your case". His Honour granted leave to counsel to ask further questions in chief of the applicant; (e) the applicant then gave further evidence, inter alia, as follows: "Q. I just show you firstly an envelope which is addressed Dung Thi Pham. Do you know whether that was in your motor vehicle on the day you were arrested. A. Yes it was in my car on the day of my arrest. Q. Did you open that envelope at any stage? A. No I never opened this envelope because I understand that according to the Australian law, nobody is allowed to open an envelope which belong to somebody else. Q. So you did not look at the contents of the envelope, that's your evidence? A. I did not look inside the envelope, I only knew that it was the yellow envelope. There was some paperwork inside but I didn't look at it. Q. Was the envelope sealed or unsealed, do you know? A. I didn't pay attention to whether or not the envelope was sealed or not sealed." He was shown a letter and attachments which he said he had not seen before that day. The letter and attachments were tendered in the applicant's case and admitted without objection as Exhibit8. Those documents related to the purchase by the applicant's wife of the Blair Athol premises and included the contract for sale; (f) the applicant's evidence was completed at the end of the day. On the following day the Crown, by leave, reopened its case. The arresting officer, Detective Kral, was called. His statement was already part of ExhibitA. A DVD recording of the search of the appellant's car was tendered through him and admitted without objection. The DVD had been previously seen by counsel for the applicant; (g) the DVD was played to the court. The following description was recorded: "WITNESS [Detective Kral]: If I may assist your Honour. HIS HONOUR: If you can. Q. The briefcase just been taken out of the car? A. By Detective McGarry. Q. Can you see that? A. Yes, I can. The yellow envelope is located. Q. In the briefcase? A. In the briefcase. Q. Yes, it is? A. And pulls out the documents which relate to - Q. That's the yellow envelope that has been tendered? A. That's right and the documents which he has in his hand which he will now read onto the video. Q. He took from the envelope? A. Straight out of the envelope. HIS HONOUR Q. Yes, that's right, it's the material that has been tendered? A. Now the item will be given to the exhibit officer and the rest of the car is searched where the remainder of the items which have been mentioned... HIS HONOUR: There's no doubt the envelope was located in the briefcase is there Mr Peluso [counsel for the applicant]. PELUSO: Absolutely no doubt at all your Honour. HIS HONOUR: That's the envelope with his wife's name on it and the accompanying documents from the solicitor's office. PELUSO: Yes, correct. HIS HONOUR: There's also no dispute is there that that was the accused's briefcase. PELUSO: That's correct, your Honour... HIS HONOUR: So according to that commentary the briefcase was found on the driver's seat and the envelope was found as I understand it inside the briefcase. PELUSO: Yes, your Honour. HIS HONOUR: Do you agree with that? PELUSO: Yes." (h) Detective Kral was not cross examined; (i) his Honour was unable to observe whether the envelope was opened and Detective McGarry was called. His Honour stated: "Detective McGarry gets here we'll resume and then his evidence presumably won't be very long. [CROWN]: No. HIS HONOUR: And it will be confined essentially to I take it the envelope and whether it was opened or not and where it was. [CROWN]: Yes. HIS HONOUR: And there's no other issues about any other documents is there? [CROWN]: No. HIS HONOUR: Mr Peluso? PELUSO: No, your Honour." (j) Detective McGarry gave evidence as follows: "Q. You indicate to the court that that was you present and you were actually the officer that located a yellow envelope? A. Yes. Q. Could you just outline to the court where you located the envelope and the status of the envelope as to whether it was closed or open at the time you located it? A. Okay the envelope was located in a black bag which was on the driver's seat of the accused's car. And the envelope was closed but not sealed. Q. So when you say it was 'closed but not sealed'? A. It was just a matter of pushing back the flap and pulling out the documents inside it." Detective McGarry was not cross examined. 18Having regard to the above review, it is apparent that there was no error by his Honour in relation to the adducing of this evidence. The conclusions reached by his Honour as to the implausibility of the applicant's version of events were well open to him and soundly based. There was no miscarriage of justice. These grounds fail. Ground 1: The sentence is excessive in the circumstances 19Senior counsel conceded that this ground could be relied upon only in the event error was established in relation to grounds 2, 3, 4 and/or 5. Such error was not established. This ground fails. Ground 6: The sentence proceedings miscarried by virtue of the conduct of the legal representative for the prosecution 20Counsel for the applicant at the sentencing hearing had complained to the sentencing judge that the Crown had made inappropriate emotional comments in the vernacular. Senior counsel for the applicant on appeal did not, in terms, press this ground of appeal. He was correct not to do so. His Honour appropriately dealt with the matter, observing that he was not sitting as a jury and that "anything of that nature just has to be disregarded and I've done that." No miscarriage of justice resulted. This ground fails. Conclusion 21In my opinion, no error on the part of the sentencing judge has been demonstrated nor was the sentence such that a lesser sentence should have been imposed. Accordingly, I propose the following orders: 1. Leave to appeal granted; 2. Appeal dismissed. 22PRICE J : I agree with Hislop J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 February 2011