REGINA v. PHAN [2001] NSWSC 1069

Reported Decision : 126 A Crim R 257

New South Wales Supreme Court

CITATION : REGINA v. PHAN [2001] NSWSC 1069 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC No. 70090 of 1998 HEARING DATE(S) : 09/11/01; 13/11/01; 22/11/01 JUDGMENT DATE : 22 November 2001

PARTIES : REGINA v. PHAN, Vinh Ngoc JUDGMENT OF : Greg James J at 1

COUNSEL : Crown: T. Hoyle, SC. Off: G. Wendler SOLICITORS : Crown: S.E. O'Connor Off: Van Houten CATCHWORDS : Criminal law - sentence - plea of guilty - accessory after the fact to murder - co-operation and undertaking to give evidence against co-accused - evidence assessed as valuable - extensive period of prior custody - bail refused on more serious charge now withdrawn - appropriate form of sentence. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Thomson & Houlton (2000) 49 NSWLR 383 CASES CITED : Darwiche [1999] NSWCCA 293 Leonard [2000] NSWCCA 28 DECISION : A sentence of two years to date from 22 November 2001. Suspend the execution of the whole of the sentence. Direct the offender be released from custody on condition that he enters into a good behaviour bond for the term of the sentence. Thta bond is to contain a condition that the offender informs the Office of the Director of Public Prosecutions of his address from time to time as it may be during the entire term of the sentence.

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION GREG JAMES, J. THURSDAY 22 NOVEMBER 2001 No. 70090 of 1998 - REGINA v. VINH NGOC PHAN SENTENCE 1 HIS HONOUR: The offender Vinh Ngoc Phan has pleaded guilty before me on 9 November 2001 to being an accessory after the fact to the murder by Bao Pham of the deceased Zi Qiang Jin (Jimmy Jin) on 11 July 1997. 2 At about 9:20 pm on that day, in an unnamed lane at Fairfield, the deceased died, having been shot three times to the head, neck and back. There was evidence that the deceased was shot in the head from different directions. There was evidence tending to suggest that more than one weapon was used in shooting. 3 At the time of the shooting he was seated in the driver's seat of a small sedan. The engine was running and the vehicle's transmission was in drive. He had apparently left his brother's home a short distance from the scene of the death shortly prior to his death after receiving a telephone call in which he had expressed his reluctance to go out but had agreed to go. 4 There was evidence to connect Bao Pham with the deceased. There was no evidence connecting this offender with the deceased, by way of prior association. 5 It was the Crown case against this offender on this charge that he was present at the scene, indeed in the car, that presence being admitted by him to the police eventually during the investigation, and no doubt admitted in consequence of the finding at the scene of his blood and of a fingerprint on the outside of the car. 6 The trail of blood left by the offender suggested that he had left the vehicle, in which the death occurred, to go to another vehicle, apparently to be driven by another person. 7 The day following the death the offender, who had suffered a laceration to his forehead at the scene, attended Dr. Le for treatment. He gave to Dr. Le a false account of what had occurred. He had given to the police, when the matter was initially investigated, false accounts seeking to distance himself from the scene and to conceal the manner in which he had received this injury. 8 On 6 May 1999, however, in an interview with police where he had attended the police station with his solicitor voluntarily, he admitted his presence at the shooting, but denying any involvement in the shooting himself. He asserted that he had been requested by his friend Bao to attend a meeting with him and that the shooting occurred during that meeting when Bao had an argument with the deceased. He says that whilst he was in the car there was gunfire in which he was injured, he lost consciousness and, in due course, was taken for treatment. 9 In particular, as going to support the charge to which he has now pleaded guilty, the Crown relies upon false statements made by him to police on 19 August 1997 concerning ownership of a mobile phone, which statements were made with the intent of deflecting police attention from both Bao and, it follows, from himself; a statement made on 13 February 1998 falsely stating to police that he did not know the deceased and that the scar on his forehead was from a bike accident; and the statement on 13 March 1998 falsely stating he had no knowledge of a Holden Commodore where that that knowledge was relevant to the investigation. 10 He was arrested on 7 August 1998. Subsequently, on 29 March and 6 May he deliberately withheld relevant information from the police with the intent of concealing Bao's involvement. I have already referred to what he told the police about his presence on 6 May. He sought to conceal from the police on the earlier occasion that he had been present at the relevant meeting. He sought to conceal from police on both occasions that he had been present at other meetings; that Bao and the deceased were engaged in the distribution and sale of illegal drugs and weapons, that he had been present when Bao had received the telephone call from the deceased shortly prior to the shooting occurring; that he and Bao had been driven to the scene and from the scene after the shooting by Jason Hanser in a yellow Holden Commodore sedan, that the following morning he heard Bao and Hanser discussing whether the weapons had been concealed. 11 It has also been put to me by the Crown as factual material upon which I should rely that he agreed to comply with a direction from Bao not to tell Dr. Le the truth as to how he had received the injury to his forehead. 12 Following his arrest on 7 August 1998 he remained in custody, except for a short period on bail until brought forward for trial for the murder of the deceased. 13 At that trial he pleaded not guilty. The trial was of himself alone, Bao not being brought to trial with him at that time. 14 After an extensive and costly trial to the community he was found guilty of murder. He appealed. The appeal was allowed principally for errors in directions given by the trial judge. A new trial was ordered. He came forward with the co-accused Bao Pham for trial before me last month. 15 A number of interlocutory steps were at that time indicated to me as appropriate to be undertaken prior to the empanelment of a jury. Pham had only been committed for trial quite recently prior to the matter coming forward for trial. The proceedings against him, on his application, have been stood over. 16 Whilst it was sought to resolve the pre-trial applications in connection with those interlocutory steps to which I have referred, it was indicated to me that it was proposed by the Crown that the accused plead guilty to the present offence, and that, should he so plead guilty and should he give an undertaking of an appropriate form to give evidence, it was the intention of the Crown that a nolle prosequi be entered in respect of the indictment for murder upon which he had been brought to trial, or a no bill, whichever was procedurally appropriate. 17 He has subsequently pleaded guilty, as I have said, on 9 November, and today the proceedings on the plea have continued. 18 Before me has been tendered a statement of the facts of the offence, to which I have referred already in these remarks. The offender's prior record has been admitted into evidence. That record includes offences of being an unlicensed driver, stating a false name and possessing a prohibited drug, for which he has been fined. They are not such as would otherwise deprive him of leniency. 19 There has also been tendered before me an undertaking to give evidence, coupled with an extensive transcript of an interview with police which transcript indicates, as far as I have been able to evaluate it, in the context of what was said in the Crown facts, that the evidence he might give at trial would be extremely valuable to the Crown, and that on the information presently put to me, his cooperation has been enthusiastic and detailed. He gave evidence that what he said to the police was true. 20 He has undertaken on oath to adhere to his promise to cooperate and give evidence on oath. He has, in addition, given evidence that he was frightened of his co-accused, who had a number of associates, and therefore the offender was willing to accede to his co-accused's wishes. It is accepted, and he has given evidence to this effect, that it is his family's intention, because of their fears, to move interstate once he has honoured his undertaking to give evidence. 21 He has explained his withholding of information from the police and his earlier erroneous information on the basis that he says he was frightened of Bao Pham and had fallen amongst bad friends. He said that he had to conceal the information but recognised that now is his final opportunity to tell the truth. He says he regrets having been involved and regrets that he has put his family in this position. He is worried both for himself and his family. He says that he received a phone call from the person Jason Hanser last night in which that person swore at him. He hung up. He said that this call was the first time he had been contacted by that person in a long while. I see no reason not to accept what he says. 22 He is presently aged 22, resides with his parents, was born in Vietnam and came to Australia at aged 13. He has one sister and three brothers; they are younger than he. He left school at Year 9, had difficulty finding employment because he had then and has now some substantial difficulty in reading and writing and in speaking English. He has, however, kept learning English in gaol and it has improved. He has been involved in learning printing work in gaol and would like to get employment as a printer. 23 He initially indicated a willingness to co-operate to an extent in May 1999 when he attended with his solicitor to be reinterviewed by the police, but from what I have already said it is apparent that then there was not full and frank co-operation; indeed, although he implicated himself as present at the scene, that, as I have said, may well have been because already, in the hands of the police, were the indicia of his presence at the scene. 24 He has subsequently been interviewed twice. In that material it appears he has fully and frankly co-operated with the police. 25 His plea was apparently accepted as soon as it was offered, and as a matter of practical utility must be regarded as accepted at the earliest practical opportunity. 26 He has spent in custody approximately one year and 10 months. That custody was referable to the murder charge, and it is submitted by the Crown that I should have regard to that custody when sentencing on this charge. Of course part of the reason why he has been in custody, as he was, was because of his own unwillingness to tell the truth to the authorities. I am not, however, prepared to speculate that the course now taken by the authorities might have been taken much earlier if he had told the truth. On the other hand, one cannot regard the time that he has spent in custody as being as a result of a mis-appreciation by the Crown of the true factual situation unless one has regard to the fact that he contributed to that misapprehension. 27 He now having given the undertaking, I understand it will be the intention of the Crown to terminate, in the manner I have referred to, the murder charge against him, but it is to be noted that his willingness to co-operate is given without the assurance of an indemnity protecting him from liability for any offence. It may be that a trial judge might give him a certificate under s.128 of the Evidence Act if the circumstances warrant it, but before me that possibility has not been mentioned. His co-operation seems to be wholehearted without the expectation that he will receive an immunity or indemnity. So that the value of his present and future co-operation is high, notwithstanding his earlier plea of not guilty and failure to reveal the truth has cost the community the value of the previous trial and appeal. I do not think that I should have regard to that latter matter when assessing the utilitarian value of his present plea, which for the purposes recognised both at common law and by the guideline judgment in Regina v. Thomson & Houlton (2000) 49 NSWLR 383 as a matter warranting a substantially reduced sentence. 28 It is clear law that on appeal, in the event that he should fail to honour his undertaking, the Court of Criminal Appeal might restore that proportion of the sentence reduced for that reason. Reductions of sentence on that basis therefore need to be quantified, at least generally, so that the Court of Criminal Appeal might be in the position to perform its function in the event of an appeal. The extent of such a reduction varies of course from case to case. There have been reductions as high as 50% as I here allow or more. The extent to which the value of assistance is to be measured is not only by reason of the risk at which the offender is put, the risk to his family, the assessment of the greater hardship to be suffered by him in consequence, but by reason of the intrinsic value of assistance to the State (see Regina v. Darwiche [1999] NSWCCA 293, per the Chief Justice at paragraph 18). 29 It is plain law that there must be substantial acknowledgement of mitigation of penalty in such cases, and it is good practice for the extent and nature of the acknowledgement to be made clear by the sentencing judge (see Regina v. Leonard [2000] NSWCCA 28 at paragraph 9). 30 Other matters which might sound in a reduced sentence I have already referred to. They include the additional hardship that might be suffered by reason of the course taken; I have referred to and have taken into account the fact of the plea and its timing and s.22 of the Crimes (Sentencing Procedure) Act 1999. 31 There have been a number of submissions put to me as to the available sentencing options. It is accepted by the Crown that if he is returned to custody he is at risk; but not only is he at risk, but also the evidence he might give and the assistance he might provide to the State would be at risk. It is a matter of notorious fact that persons in circumstances such as his, if returned to gaol, may require protection so strict as to require a gaol regimen, which is itself of dramatically cruel impact upon them. It was that fact that gave rise to the grant of bail between plea and this hearing. It is to that fact and the potential loss of what appears to be valuable evidence to the State to which I have regard in the selection of the particular sentence I will pass. 32 The maximum penalty provided for this offence is 25 years imprisonment. That is a maximum recently introduced into the law of this State. It would appear to have the effect of increasing the gravity with which the court should regard such offences. Nonetheless, the circumstances of this offence appear to me to be such, as they have been put to me, as to show an inadvertent involvement by the offender, a fear of the co-offender, and a fear for himself, based on entirely reasonable grounds, that his position would be misunderstood and that he was at risk of a murder conviction. I apprehend that there was a fair measure of consideration of self-preservation, as well as an apprehension of the co-accused underlying the untruthful statements and concealment constituting the offence, but it is accepted by the plea and the course the Crown proposes to take that he was not genuinely liable for the murder and that the period he has spent in custody should be taken into account as referable to the offence to which he has now pleaded. That seems, in the context of these events, only common justice. 33 It has been submitted by the Crown that he should not be returned to custody. That submission has also been made by counsel on his behalf. 34 Other sentencing options, such as periodic detention or community service, seem entirely inappropriate in the context of this offender's situation as it will be and the status he will have, once he has given evidence. They are inconsistent also with the family's attempt to make a new life in another State concealing what has happened and what he has had to do here. 35 A fine, in his circumstances, is totally inappropriate. Long term custody has the disadvantages, to which I have already referred, and to those I have been referred in particular as to the risk by the Crown and the defence. Nor do the facts seem to warrant it. 36 It would be inappropriate that there not be some continued form of sanction and supervision over the accused. A sentence of less than three years could provide a solution in that I would be required to nominate an automatic release date, which could be immediate and the sentence could backdate. 37 As a mechanism, effectively that would allow only one year two months of parole period and practically would be of limited utility. No doubt these considerations underlay the submission of the Crown that the appropriate course to take was, having regard to the period that the offender had already spent in custody I should, having determined that imprisonment is the appropriate course, then give consideration to suspending that term of imprisonment. Such a term of imprisonment, if imposed today, if it were to be suspended, would have to be a term of two years or less. It would provide for a longer sentence in that case than the option of a sentence of three years or less backdated, and it could provide for immediate release and, in addition, provide that the offender would be aware that the sentence would be suspended upon condition that he enter into a recognisance to be of good behaviour and such other conditions as the Crown and the offender's counsel might submit appropriately should be inserted in the recognisance. 38 In all the circumstances, I have concluded that that is the appropriate sentence for me to impose. I am minded therefore to sentence the offender to a sentence of two years to date from today and to suspend the execution of the whole of the sentence, directing that the offender be released from custody on condition that he enters into a good behaviour bond for the term of the sentence upon the appropriate conditions. For that reason, there will be no non-parole period. 39 Would you please rise, Mr. Phan. For the crime to which you have pleaded guilty and of which you stand convicted, I sentence you to imprisonment for two years to commence today. I suspend the execution of that sentence for the whole of its term, directing that you be released from custody today on condition that you enter into a good behaviour bond for the term of the sentence, which bond is to contain a condition that you inform the Office of the Director of Public Prosecutions of your address from time to time as it may be during the entire term of the sentence. ********