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Court of Criminal Appeal 29 October 1999

Regina v Pham

[1999] NSWCCA 362

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW PRACTICE & PROCEDURE APPEAL AGAINST SEVERITY OF SENTENCE

Citation: Regina v Pham [1999] NSWCCA 362
Court: NSW Court of Criminal Appeal
Date: 29 October 1999
Judge(s): Simpson J; Kirby J

Background

The appellant was one of four men convicted of serious offences arising from a planned robbery in October 1996. The group abducted a motor mechanic, forced him to a secluded location, threatened him with a gun, and subjected him to a violent assault with a piece of timber, causing multiple injuries including a broken nose and fractured hand bones. They then invaded the home he nominated, binding elderly occupants and a deaf and dumb child while ransacking the premises.

The appellant faced two counts under s 98 of the Crimes Act 1900: robbery in company with wounding (maximum 25 years) and robbery in company (maximum 20 years). Unlike some co-offenders, he pleaded guilty. District Court Judge Woods QC sentenced him to six years penal servitude on each count, with a minimum term of four and a half years and an additional term of one and a half years, to be served concurrently.

The appeal turned on whether the sentencing judge erred by failing to find "special circumstances" (which under the Sentencing Act 1989 allows the court to increase the additional, or parole, component of a sentence beyond the standard one-third ratio). The appellant argued that parity with co-offenders who had been found to have special circumstances, combined with his youth and rehabilitation prospects, demanded the same finding in his case.

  • Whether the sentencing judge erred by failing to find special circumstances warranting a longer additional (parole supervision) term under s 5(2) of the Sentencing Act 1989
  • Whether the appellant's minimum term was inconsistent with parity principles, given that co-offenders who had pleaded not guilty received the same minimum term after their longer head sentences were adjusted for special circumstances
  • Whether the guilty plea was given adequate weight in the structure of the sentence, as distinct from simply the total length

Decision

The Court of Criminal Appeal held that the sentencing judge ought to have found special circumstances. Kirby J identified three reasons: the appellant's youth at the time of the offences (just 21 years old), his prospects of rehabilitation, and the need for extended supervision following a lengthy period in adult custody. Each of those same factors had supported findings of special circumstances for the co-offenders.

The Court also accepted the parity argument, at least in its structural effect. Because the co-offenders who pleaded not guilty had longer head sentences that were then re-proportioned to reflect special circumstances, their minimum terms ultimately matched the appellant's, despite his guilty plea. Kirby J held that a sentencing judge fixing a discount for a guilty plea must be conscious of the impact that discount has on the minimum term actually to be served.

Importantly, the Court made clear that the total six-year sentence was not challenged, was plainly deserved, and was arguably lenient given the gravity of the offending. The re-sentencing exercise therefore preserved the six-year head sentence while restructuring the balance between the minimum and additional terms.

The Court's re-sentence reduced the minimum term from four and a half years to three years and nine months, and extended the additional term from one and a half years to two years and three months, keeping the overall sentence at six years. This gave the appellant a longer period of supervised parole while not disturbing the overall penalty.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Original sentence quashed and replaced, on each of counts 1 and 2, with a minimum term of three years and nine months commencing 14 March 1997 and expiring 13 December 2000, together with an additional term of two years and three months commencing 14 December 2000 and expiring 13 March 2003.
  • Both sentences to be served concurrently.

Key Takeaways

  • A finding of special circumstances under s 5(2) of the Sentencing Act 1989 may be warranted where an offender is young, has genuine rehabilitation prospects, and faces a lengthy first period in adult custody, particularly where co-offenders received the same finding on comparable grounds.
  • Parity in sentencing is not confined to the total length of a sentence. Where co-offenders receive a longer head sentence re-structured through a special circumstances finding, an offender who pleaded guilty may nonetheless be left with an equivalent minimum term, producing an unjust result.
  • The discount for a guilty plea must be considered in terms of its concrete effect on minimum terms, not merely on the headline sentence figure.
  • In re-sentencing for failure to find special circumstances, the Court of Criminal Appeal preserved the total six-year sentence while restructuring the minimum and additional terms, confirming that the re-sentencing exercise need not disturb an unchallenged and appropriate head sentence.
  • Subjective circumstances including a difficult upbringing, cultural dislocation, and a community worker's assessment of rehabilitation potential are relevant to sentence structure, even where the objective seriousness of the offending is high.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 98 (robbery in company with wounding; robbery in company)
- Sentencing Act 1989 (NSW), s 5(2) (special circumstances and the structure of minimum and additional terms)

Cases
- Bugmy v The Queen (1990) 169 CLR 525
- R v Raymond A Phelan (1993) 66 A Crim R 446