R v Van Thi Kanh PHAM [2020] NSWSC 1951

Supreme Court New South Wales

Medium Neutral Citation: R v Van Thi Kanh PHAM [2020] NSWSC 1951 Hearing dates: 15 December 2020 Date of orders: 15 December 2020 Decision date: 15 December 2020 Jurisdiction: Common Law Before: Rothman J Decision: Bail refused Legislation Cited: Crimes Act 1900 (NSW), ss 33(1)(a), 33(1)(b), 43A(2) Category: Principal judgment Parties: Van Thi Kanh PHAM (Applicant) Regina (Respondent) Representation: Solicitors: Ly Lawyers (Applicant) Office of the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2020/00328164 Publication restriction: Nil

ex tempore Judgment 1. HIS HONOUR: Before the Court is an application for bail by Van Thi Kanh Pham. 2. Ms Pham is accused of three offences under the Crimes Act 1900 (NSW). First, failure to provide for a child and cause danger of serious injury. The maximum sentence for which is 5 years' imprisonment and which is a contravention of s 43A(2) of the Crimes Act. 3. The second offence is wound with intent to cause grievous bodily harm in contravention of s 33(1)(a) of the Crimes Act, which carries a maximum sentence of 25 years' imprisonment. The third matter is a contravention of s 33(1)(b) of the Crimes Act, namely malicious infliction of grievous bodily harm, that is the infliction of grievous bodily harm with intention so to do, which also carries a maximum sentence of 25 years' imprisonment. 4. None of the foregoing should be taken as an indication that the applicant is in a worst category of cases and that she would have imposed upon her, should she be found guilty, the maximum sentence. 5. Nevertheless, each of these offences relates to what can be said to be one or more courses of conduct relating to the applicant's son who is or was at the time of the offences something like five years of age. Before the Court are a number of pieces of evidence relating to these injuries. 6. The applicant says that the evidence before the Court does not indicate that she was in fact the perpetrator of the injuries, rather it is said the applicant is said to be liable on the basis of joint criminal enterprise. 7. It is important first to deal with the medical evidence by the Interim Medical Report of 16 September 2020. Dr Wong, Consultant Paediatrician at Westmead, describes the injuries of the victim as they presented on 29 August 2020. They include acute traumatic brain injuries, subdural bleeding, subdural haematomas, cerebral contusions, two rib fractures of the ninth and tenth rib, acute fracture to the left ulna, acute fracture to the spinal vertebral column at S4, acute soft tissue swelling at the left forehead and a number of other injuries being visible injuries to the face and body and neck and also injuries that may not have been visible, namely, damage to the eye, in particular bilateral retinal haemorrhage, which is generally consistent with the infliction of head injuries. 8. The report of the doctor says the following, the victim's injuries were almost certainly caused by inflicted abusive trauma. His injuries suggest inflicted abusive trauma on more than one occasion and via multiple mechanisms, including blunt force trauma, inflicted burns and use of ligatures. The brain injuries, in particular, have caused a number of significant neurological deficits which are likely to have ongoing and permanent impacts on his functioning. 9. The subsequent report of 12 November 2020 followed an MRI or follow-up MRI on 13 October that showed partial resolution of the intracranial haemorrhages. There was a volume loss of the cerebral hemisphere which is indicative of permanent loss of brain matter secondary to traumatic injury. 10. Part of the medical certificate that has been provided is a urinalysis conducted on this five-year-old child which shows, amongst other things, that no alcohol was detected in his system but what was detected was Midazolam, Amphetamine, Methylamphetamine, Morphine, Ketamine, Propofol and Lignocaine. 11. The fact is that the child has been subject to, on any analysis, the consumption of some drugs which may be prescribed but there is no evidence that they were, and certainly some drugs that could never be prescribed. 12. The child was in the care of the mother. The mother and her then partner were responsible for the child during the course of the period during which these injuries occurred. A schedule of the injuries that have been provided includes photographs that have been taken historically between the period 19 April 2020 and 21 August 2020 and there are 11 such photographs of various injuries during that period. 13. In the course of the investigation, a video was found on the telephone of the applicant which shows the applicant speaking to the child, a still of which has been provided to the Court, which shows evident injury. The transcript of the video provides the following: "Applicant: let me tell you something, all it takes is one more time, if I hear anyone at all say that they heard you talk like that, or if I hear you with my own ears talk like that or use that word, it won't have to come to the point where your dad will hit you, I will be the one carrying a stick and will hit you to the point that you remember, do you know?" 1. Later the applicant is saying, essentially threatening similar conduct and requiring the child to apologise to the applicant. 2. The evidence in the premises is of pieces of wood where blood spots could be observed. Other blood spots were located within the bedroom. Later analysis of these blood spots has identified them as belonging to the victim. 3. Further analysis of the house identified two metal poles and a plastic pole. One of the metal poles was found to have a burnt end to it. The police suspect that these poles were used as implements on the victim. The suspicion has been supported by expert Paediatric Physician, Dr Grace Wong, who treated the victim. DNA analysis on these items has identified them as belonging to both the victim and the male partner to the applicant. 4. The applicant submits, in the totality of her submissions, including the "Additional Facts" document, that the applicant was "unaware of the assaults being perpetrated against the complainant or otherwise was not approving of the assaults", yet in the course of submissions it also says that the applicant was seeking to stop the assaults. The two are inconsistent. Either the assaults were sought to be stopped or they weren't known about, they can't be both. 5. The applicant relies upon the fact that it was not the applicant who is said, on the material that is currently before the Court, to have inflicted many or all of the injuries or any of the injuries. Nevertheless, the circumstantial evidence before the Court, including the period of time over which it occurred and the attitude of the applicant to the infliction of the injuries, seems to me to be sufficient to enable an appropriately directed jury to come to the view that there was in fact a joint criminal enterprise and the applicant was in fact guilty of the two more serious charges, wound with intent to cause GBH and maliciously inflict GBH, each of which carry, as I said earlier, a maximum sentence of 25 years. 6. I do not consider that the time in prison between now and the time this matter will be on for trial is particularly lengthy and certainly not one which in and of itself would cause the Court some concern as to the conditional liberty of the applicant. I do consider that the overseas connections of the applicant and the seriousness of the offences with which she is charged are such that there is a serious concern of failure to appear. 7. I also take the view that the conditional liberty of the applicant and her capacity to contact, even if only telephonically, the victim and/or other witnesses, is such that there is a serious risk of interference with witnesses. 8. In my view, the bail concerns are significant, there is an unacceptable risk, and bail is refused.