Citation: Regina v Hung Van PHAM [1999] NSWCCA 225
Court: NSW Court of Criminal Appeal
Date: 2 August 1999
Judge(s): Levine J; Smart AJ
Background
The applicant pleaded guilty in the Sydney District Court to robbery in company with wounding, an offence carrying a maximum penalty of 25 years imprisonment. The offending occurred in April 1997 when he and two co-offenders entered a Surry Hills shop in the early hours of the morning and violently robbed the 67-year-old owner. The applicant was armed with a Ghurkha-style knife and participated in assaulting the victim, who sustained severe injuries.
Three men were involved. One co-offender, Tho Than Le, was found to have been the instigator who pre-planned the robbery by obtaining a loaded pistol and a vehicle. A third co-offender kept watch and struck the victim with a bottle. The applicant was discovered hiding in a cupboard at the rear of the shop when police arrived and arrested him.
Morgan DCJ sentenced the applicant to the same term as Tho Than Le: a minimum term of three years and an additional term of two and a half years. The applicant also asked the court to take into account three charges of goods in custody and one charge of receiving, relating to separate conduct in November 1996. He applied out of time for leave to appeal against the severity of that sentence.
Legal Issues
- Whether the sentencing judge erred in imposing the same sentence on the applicant as that imposed on Tho Than Le, given differences in their respective roles in the offending
- Whether the overall sentence was manifestly excessive having regard to the applicant's personal circumstances and the additional offences taken into account
Decision
The Court of Criminal Appeal found no error in Morgan DCJ's approach to sentencing. While Tho Than Le was identified as the instigator who pre-planned the robbery, the sentencing judge had found that there was not a great deal of difference between the applicant's involvement and that of Le. The applicant had willingly participated while armed with a knife, most probably to fund a drug habit, and that willing, armed participation was treated as an aggravating feature.
The sentencing judge was found to have had regard to a psychological report, the applicant's personal history in Vietnam, Hong Kong and the Philippines, and the circumstances of the additional offences taken into account. The Court noted that, given the gravity of the primary offence and those additional matters, parity with Le's sentence was appropriate rather than erroneous.
The Court also noted positive steps the applicant had taken in custody, including learning English, but these matters did not alter the conclusion that the sentence was correctly imposed. The application for an extension of time and leave to appeal were both granted, but the appeal itself was dismissed.
Orders Made
- Extension of time to apply for leave to appeal: granted
- Leave to appeal: granted
- Appeal against sentence: dismissed
Key Takeaways
- No error was established in imposing equal sentences on co-offenders where the sentencing court found their roles, while not identical, were not materially different in terms of culpability.
- Willing participation in a violent armed robbery while personally armed with a weapon is properly treated as an aggravating factor, even where another co-offender is identified as the primary instigator.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the additional offences taken into account at sentencing were a relevant consideration supporting the sentence imposed.
- A sentencing court is entitled to weigh psychological reports and the offender's personal background without those matters necessarily reducing the sentence where the offence is of a sufficiently serious character.
- The Court of Criminal Appeal granted both the extension of time and leave to appeal before dismissing the appeal on its merits, a procedural pathway available where arguable grounds exist but ultimately do not disclose error.
Legislation and Cases Referenced
Legislation:
- No specific legislation was cited in the judgment beyond reference to the offence of robbery in company with wounding (maximum penalty: 25 years imprisonment).
Cases:
- No cases were cited in the judgment text provided.