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Supreme Court 22 November 2001

REGINA v. PHAN

[2001] NSWSC 1069

Also reported as 126 A Crim R 257
HomicidePublic order & justice offences
CRIMINAL LAW SENTENCE PLEA OF GUILTY ACCESSORY AFTER THE FACT TO MURDER ACCUSED EVIDENCE ASSESSED AS VALUABLE

Citation: Regina v Phan [2001] NSWSC 1069
Court: Supreme Court of New South Wales (Criminal Division)
Date: 22 November 2001
Judge(s): Greg James J

Background

The offender pleaded guilty to being an accessory after the fact to the murder of a man shot three times in a Fairfield laneway in July 1997. The offender had been present at the scene, sustained an injury during the shooting, and was subsequently driven away by a third party. Physical evidence, including blood and a fingerprint found at the scene, connected him to the incident.

Following his arrest in August 1998, the offender had initially provided false accounts to police on multiple occasions, seeking to conceal both his presence and the involvement of the principal offender. He was charged with murder, stood trial, was convicted, successfully appealed on the basis of misdirections, and was then brought back for a retrial. In the lead-up to that retrial, the Crown accepted a plea of guilty to the lesser charge of accessory after the fact, with the murder indictment to be discontinued.

Central to the sentencing proceedings was the offender's cooperation with police. He had given a detailed voluntary interview, provided an undertaking on oath to give evidence against his co-accused, and acknowledged fear of that co-accused as a reason for his earlier concealment of information.

  • What weight should be given to the offender's cooperation with authorities, including a sworn undertaking to give evidence against a co-accused?
  • How should an extensive period of prior custody, served under a charge that was ultimately not pursued, factor into the sentence?
  • What was the appropriate form of sentence, having regard to time already served, the nature of the offence, and the need for ongoing supervision?

Decision

Greg James J accepted that the offender's cooperation had been genuine, detailed, and enthusiastic, and that his evidence was likely to be extremely valuable to the Crown. The court also accepted the offender's explanation that fear of his co-accused had driven his earlier concealment, noting that he had ultimately come forward voluntarily with police and given truthful evidence about the events. The undertaking on oath to give evidence at the forthcoming trial was treated as a significant mitigating factor.

The court noted that the offender had spent a substantial period in custody, first following his 1998 arrest and then throughout the original murder trial and appeal process. Bail had been refused on the murder charge, a charge that was ultimately withdrawn. This extended pre-sentence custody weighed heavily in the sentencing calculus.

Greg James J considered various sentencing mechanisms, including a backdated term of less than three years (which would have produced only a limited parole period) and a suspended sentence. The court concluded that a two-year sentence, suspended in its entirety, best balanced the seriousness of the offending, the extended prior custody, and the need to maintain a practical mechanism to ensure the offender's continued cooperation and availability as a witness.

Orders Made

  • The offender was sentenced to two years imprisonment, commencing 22 November 2001.
  • Execution of the entire sentence was suspended.
  • The offender was directed to be released from custody on the condition that he enter into a good behaviour bond for the term of the sentence.
  • The bond included a condition requiring the offender to notify the Office of the Director of Public Prosecutions of his address throughout the entire two-year term.

Key Takeaways

  • A plea of guilty to accessory after the fact to murder, combined with an assessed-valuable undertaking to give evidence against a co-accused, can result in a substantial reduction in sentence, including a fully suspended term.
  • Extensive pre-sentence custody on a more serious charge that is subsequently withdrawn is a relevant and weighty consideration at sentencing, capable of effectively exhausting the custodial component of the sentence.
  • Where imprisonment is deemed appropriate but a backdated sentence would produce only a limited supervisory period, a fully suspended sentence of two years or less may represent a more effective mechanism for maintaining oversight of the offender.
  • The Supreme Court treated ongoing fear of a co-accused as a contextual factor explaining earlier non-cooperation with police, rather than as a complete mitigating factor, while still crediting the offender's eventual voluntary cooperation.
  • Conditions attached to a good behaviour bond accompanying a suspended sentence can be tailored to ensure the offender remains locatable and accountable to prosecuting authorities during the bond period.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Thomson & Houlton (2000) 49 NSWLR 383
- Darwiche [1999] NSWCCA 293
- Leonard [2000] NSWCCA 28