Regina v Pham [1999] NSWCCA 362

New South Wales Court of Criminal Appeal CITATION : Regina v Pham [1999] NSWCCA 362 FILE NUMBER(S) : CCA 60175/98 HEARING DATE(S) : 29 October 1999 JUDGMENT DATE : 29 October 1999

PARTIES : Regina Danh Thanh Pham JUDGMENT OF : Simpson J; Kirby J

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0288 LOWER COURT JUDICIAL OFFICER : Woods DCJ

COUNSEL : P G Berman (Crown) P Segal (Appl) SOLICITORS : S E O'Connor (Crown) T Murphy (Appl - LAC) CATCHWORDS : CRIMINAL LAW; Practice & Procedure; Appeal against severity of sentence ACTS CITED : Crimes Act 190 - s98 Sentencing Act 1989 - s5(2) CASES CITED: Bugmy v The Queen (1990) 169 CLR 525 R v Raymond A Phelan (1993) 66 A Crim R 446 DECISION : Appeal allowed; Refer para 29

IN THE COURT OF

CRIMINAL APPEAL 60175/98

SIMPSON J KIRBY J Friday 29 October 1999

REGINA v Danh Thanh PHAM JUDGMENT

1 KIRBY J: The applicant, Danh Thanh Pham, seeks leave to appeal against a sentence imposed by his Honour Judge Woods QC on 18 and 19 December 1997. 2 Mr Pham was one of four persons charged with several counts of robbery arising out of incidents which occurred on 22 October 1996. The others charged were as follows: Phuc Thien Tran Phuoc Nguyen Ngoc Huy Tran 3 By coincidence, I sat on an appeal by Phuoc Nguyen on 28 May 1999, the other members of the Court being Ireland J and Carruthers AJ. The charges against Mr Pham, and other members of the group, were in the same terms. There were two counts. The first count alleged robbery in company with wounding (s98 Crimes Act 1900). The maximum penalty for that offence is twenty-five years penal servitude. The second count alleged robbery in company (s98 Crimes Act 1900). The maximum penalty, where there is no wounding, is twenty years penal servitude. 4 The various accused differed, one from another, in respect of certain additional matters which they asked the sentencing judge to take into account in each case (Form 1), and also in respect of whether or not they pleaded guilty. Some chose to contest the charges, but were ultimately found guilty by the jury. 5 In respect of Mr Pham, his Honour imposed a sentence, on each count, of six years penal servitude, comprising a minimum term of four and a half years commencing on 14 March 1997, and expiring on 13 September 2001; together with an additional term of one and a half years, expiring on 13 March 2003. The sentences were concurrent. 6 The application for leave to appeal signed by Mr Pham raises an issue of parity with his co-offenders. He complains that, whereas he pleaded guilty, he received the same sentence as those who pleaded not guilty. That statement is not entirely accurate. The total sentences imposed upon those who pleaded not guilty were longer, although the minimum term imposed upon Mr Nguyen was the same as that fixed for Mr Pham (four and a half years). 7 I should say something about the circumstances giving rise to the charges. They are graphically set out in his Honour's remarks on sentence. His Honour did not differentiate between members of the group. He found that each shared in the common purpose, and that nothing done that evening was beyond the scope of that purpose. 8 A plan was hatched to abduct and rob a man called Billianson Siew. Mr Siew was a motor mechanic in the Cabramatta area. In circumstances which need not be described, Mr Billianson Siew was lured to a meeting at Cabramatta. He went by car. The group, including Mr Pham, were in another vehicle. They effectively ran the car of Billianson Siew off the road. 9 Having brought his vehicle to a halt, members of the gang entered the vehicle. They abducted Mr Siew, forcing him to accompany them to a secluded park at Lansvale near Fairfield. He was threatened with a gun. His wallet and other personal items were stolen. He was also viciously bashed with a piece of 4 x 2 timber. He suffered a number of injuries. His nose was broken. Certain bones in his right hand were fractured. Some of his teeth were knocked out, and he sustained multiple lacerations to his face. The gang, which included the applicant, placed the coat of Mr Siew over his head, so that he would not be able to recognise them. One can only imagine the terror of their attack. These events gave rise to the first count, the count of robbery in company with wounding. 10 The items of property said to have been taken from Mr Siew were, first, his car, a Toyota Hilux utility. Secondly, his watch and, thirdly, his wallet which included a driver's licence, membership cards of various clubs as well as cash ($30). 11 A demand was made upon Mr Siew that he produce $20,000. Someone within the gang, having examined his wallet, then asked him to identify his home. Wishing to protect his wife and young children, he instead nominated the home of his mother-in-law at Warwick Farm. The group then went to that address. Mr Siew accompanied the group, still bleeding. At about midnight, innocent citizens were awakened, and violently turned from their beds, as the group invaded the house. Two elderly people, and a deaf and dumb child, were forced to submit to the indignity of lying on the floor, bound and covered by a blanket, whilst the gang ransacked their home. A necklace and pendant was ripped from the throat of one of the occupants, Mrs Lay. Other items of property were stolen. These matters gave rise to the second count. It was asserted that Mr Pham, and the others, robbed Choi Heuang Lay of $2,200 cash, $US5, a neck chain with a jade pendant, as well as a quantity of Cambodian currency. 12 The Form 1 document signed by Mr Pham included other crimes committed the same evening. Other property belonging to other household members was identified as having been stolen. 13 These were obviously serious offences. His Honour, when fixing the sentence, emphasised the need for general and personal deterrence. No complaint is made about the length of the sentence imposed. Taking account of the subjective circumstances of Mr Pham, which I will shortly describe, his sentence was plainly appropriate. Indeed, it may be thought that the sentences imposed by his Honour upon Mr Pham, and other offenders, were lenient. 14 Mr Pham was born on 15 November 1995. He was twenty-one years, or only just twenty-one years old at the time of the incident. He is now almost twenty-four years old. 15 In recounting his story, one is left with a feeling of enormous waste. He is described as a person of real intelligence. He was born in Vietnam. He came to Australia with his family in 1981. His formative years were spent in a community which was profoundly disturbed following the Vietnam War. His family settled in Bundaberg, Queensland. He enrolled in the local school. He showed great promise. His sister, an accomplished woman, who gave evidence before his Honour, described him as a "straight A" student. 16 When the applicant was fourteen his family moved to Cabramatta. With hindsight that move was unfortunate. Mr Pham's academic performance plummeted. He fell in with bad company. He was repeatedly expelled from school. He began to offend and to indulge in cannabis. 17 Between that time and 1996, when these offences occurred, the applicant accumulated an unenviable criminal record. Many of the offences were dealt with by the Children's Court. He was subjected to control orders on a number of occasions. In 1993 he was charged with assault as well as stealing motor vehicles. 18 A reference provided by a community worker, who knew the applicant well, suggested that he was not beyond redemption. The person concerned, Mr Vincent Doan, said this: "I do not believe that Danh is a bad person. I do believe that, with his family's support, along with my support, supplemented by his own motivation, that in the future, as a group we can improve Danh's circumstances." 19 The primary submission made on Mr Pham's behalf is that, having regard to his youth, his potential, and the prospects of rehabilitation, a longer period of supervision than that contemplated under s5(2) is warranted. His Honour, therefore, ought to have found special circumstances. 20 Reference is also made to the treatment of other offenders involved in the same offence. In each case, including an offender dealt with by his Honour Judge Howie (Phuoc Nguyen), special circumstances were found. Such findings were, in part, based upon youth, upon difficulties in adjustment arising from cultural matters, and the consequent need for greater supervision. It is said with some force that each of these matters applies to this applicant. 21 More than that, although the applicant pleaded guilty, he was sentenced to the same minimum term as that which, after adjustment under s5(2), was determined in respect of those who had pleaded not guilty (even though their head sentences were longer). In fixing an appropriate discount for a plea of guilty, the sentencing judge, in my view, must be conscious of the impact which that discount will have upon the minimum term. 22 Although the minimum is but one aspect of the sentencing judge's task, it is the aspect of immediate relevance to the offender (cf Bugmy v The Queen (1990) 169 CLR 525). Even though the sentences imposed upon Mr Pham and other offences were lenient, in terms of their overall length, I am left with a sense of unfairness that Mr Pham's minimum term is the same as that of Mr Nguyen, who pleaded not guilty. Had his Honour found special circumstances and adjusted the minimum term, such unfairness may have been avoided. 23 The issue is, therefore, whether his Honour should have found special circumstances in Mr Pham's case. 24 I note that no specific submission was made, by experienced counsel appearing for Mr Pham, of the need to find special circumstances in his case. Mr Segal, appearing for Mr Pham, says in response, that the issues which are relevant to special circumstances, including the extreme youth of the applicant, were canvassed and referred to at some length, and it appears to have been in the minds of those who were addressing his Honour that the issue was before his Honour. 25 The Crown has drawn our attention to the words of Hunt CJ at CL in R v Raymond Anthony Phelan (1993) 66 A Crim R 446. In that case his Honour says this: (at 449) "What does constitute a matter as a special circumstance within the meaning of section 5(2) is its production of the need or the desirability for the offender to be subjected to an extended period of conditional release subject to supervision on parole. That need or desirability may arise from the prospect of particular difficulties in adjustment after long periods in custody, or from the greater prospect of rehabilitation if supervised whilst on parole than from a longer period of incarceration. Such will often be the case with young offenders who are facing their first custodial sentence." 26 The applicant entered custody in November 1997, at a time when he was subject to a sentence of four months imprisonment which had been imposed in that month by a Local Court. Mr Pham appealed against that sentence. He later withdrew his appeal. His Honour dated the sentence, which is the subject of the present appeal, from the expiration of the term of four months which arises from that offence. However, the effect of the accumulation of that four months, and the minimum term which Mr Pham was obliged to serve under the sentence imposed by his Honour, was a term in custody of four years and ten months. That is to say, four years and six months minimum term and the four months that he was already serving. 27 I believe that his Honour ought to have found special circumstances by reason of the youth of the applicant, by reason of the prospects of rehabilitation, and the need for prolonged supervision, and especially the length of the incarceration in an adult prison. 28 For that reason, I would give leave to appeal, and allow the appeal. In terms of re-sentencing the applicant, I would adopt the broad framework of his Honour, except in respect of the additional term. The commencement date 14 March 1997, should be the same, and the overall sentence of six years should likewise be the same, it not being challenged before this Court and plainly deserved, and indeed lenient, in my view. 29 The orders I would propose are these: