Regina v Hung Van PHAM [1999] NSWCCA 225

New South Wales Court of Criminal Appeal CITATION : Regina v Hung Van PHAM [1999] NSWCCA 225 FILE NUMBER(S) : CCA 60148 of 1998 HEARING DATE(S) : 2 August 1999 JUDGMENT DATE : 2 August 1999

REGINA

PARTIES : v

HUNG VAN PHAM JUDGMENT OF : Levine J at 1; Smart AJ at 20

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0510 LOWER COURT JUDICIAL OFFICER : Morgan DCJ

C Maxwell Q.C. COUNSEL : (Crown)

Applicant In Person SOLICITORS : S E O'Connor (Crown) CATCHWORDS : Criminal Law - sentencing - robbery in company DECISION : See paragraphs 19-21

IN THE COURT OF CRIMINAL APPEAL

60148/98

LEVINE J SMART AJ

MONMDAY 2 AUGUST 1999

REGINA v HUNG VAN PHAM JUDGMENT

1 LEVINE J: The applicant (who appears in person aided by Mr Coen, interpreter) seeks an extension of time for his application for leave to appeal against the severity of a sentence imposed in the Sydney District Court by Her Honour Judge Morgan on 13 February 1998. 2 Mr Pham was sentenced for the offence of robbery in company with wounding, a crime for which the maximum penalty is 25 years. At the time of being sentenced for that offence, to which Mr Pham pleaded guilty, through his legal representatives he asked that other offences committed by him on 6 and 7 November 1996 be taken into account, being three charges of goods in custody and one charge of receiving. 3 The offence happened in these circumstances. That at about 1:10am on 17 April 1997 Mr Hadjisavvas who was 67 years old, was working in his shop in Surry Hills. Tho Than Le and the applicant entered the shop and went to the back. The victim approached the two men to ask whether he could assist them. Tho Than Le produced a pistol and demanded the money kept in the store. The applicant was armed with a Ghurkha style knife. The applicant and Tho Than Le then set about assaulting the store keeper, the applicant hitting him with the handle of the knife. 4 Not long after, the third person involved, Thanh Long Pham came inside, closed the shutter and kept a look out. He attempted to open the cash register and he, Thanh Pham, whilst Mr Le and this applicant were assaulting the shop keeper, struck him with two blows to the rear of the head with a bottle which he, Thanh Pham, had taken from one of the shelves. He continued to keep a look out whilst Le and this applicant continued assaulting the shop keeper and he removed a sum of money from his back pocket. 5 A passer by noticed what was happening and called the police who arrived and arrested Tho Than Le and Thanh Long Pham. 6 The applicant was discovered hiding in a cupboard at the rear of the shop and was also arrested. 7 Two hundred and fifty dollars belonging to the shop keeper was found on the footpath and police found a .32 calibre Browning pistol under a bucket in the rear toilet of the shop and that pistol was found to be loaded. The Ghurkha knife was found under a newspaper on some stairs at the rear of the shop premises. Tho Than Le's car was found parked nearby. 8 The shop keeper was taken to hospital where he was found to have suffered severe injuries. 9 In her remarks on sentence, having recited the facts generally as I have outlined them, her Honour dealt with Tho Than Le first and found him to have been the person who was in charge of the enterprise giving orders to the applicant to shut the door and to assist in the assault. Her Honour dealt with Tho Than Le's personal background and was very conscious of the seriousness of his conduct. He was sentenced to a minimum term of three years and an additional term of two and a half years. 10 Her Honour then dealt with this applicant who she found willingly agreed to take part in the robbery whilst armed with a knife, which she found was an aggravating feature or something that made it more serious. 11 A report apparently from Mr John Taylor, a clinical psychologist, was available to the judge who, it appears to me, had regard to it, although it appears that it did not have much to say because of the applicant's lack of memory at that time. 12 Importantly, her Honour did not regard this applicant as being the ring leader but she did find that he willingly participated, armed with a knife, most probably to obtain money to satisfy his drug habits. She found that, on balance, there was probably not a great deal of difference between this applicant's involvement and that of Mr Le. 13 Mr Le, she found, was the instigator who pre-planned the robbery by obtaining a pistol and borrowing a van. 14 Her Honour was well informed of this applicant's personal history in Vietnam, Hong Kong and the Philippines and the unfortunate things that happened to him before he came to this country. 15 Mr Taylor, the psychologist, expressed the hope that while in goal the prisoner will feel sufficiently motivated to take classes in English. I interpose from what the applicant has here today said he has taken that step and I add further, speaking for myself, I appreciate that he really wishes to work hard to become a good citizen. 16 As I have said the applicant was given the same sentence as Mr Le and I am of the view, particularly taking into account the goods in custody and receiving offences which her Honour was asked to take into account and given the very serious nature of the crime, that no mistake or error was made by her Honour in relation to this applicant, or in relation to this applicant compared to the other two people involved. 17 I have read the report of Gillian Tulloh, the psychologist at Goulburn, which seems to me to make clear, in its own way, the type of information that Morgan DCJ had at the time she sentenced the applicant. This was a very serious crime and the learned sentencing judge took into account all relevant matters relating to the crime itself, all relevant matters relating to the applicant himself and in the end made no mistake, in my view, in coming to the sentence she imposed. 18 The sentence she imposed also, I would add, particularly by reason of complaint being made about it in relation to Mr Le's sentence, was one that properly related to it and was in the end correct in being the same. 19 It will be for Mr Pham, this applicant, to continue his work in goal before he is released on 16 April next year and to continue to help himself after that date. No error, however, having been shown to have been made by Morgan DCJ, I am of the view that the application for extension of time be granted, the application for leave to appeal be granted, but that the appeal be dismissed. 20 SMART AJ: I agree. 21 LEVINE J: The orders, therefore, will be as I have proposed. ***********