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Court of Criminal Appeal 4 February 2005

Regina v Pham

[2005] NSWCCA 9

HomicideFirearms & weapons

Citation: Regina v Pham [2005] NSWCCA 9
Court: NSW Court of Criminal Appeal
Date: 4 February 2005
Judge(s): Sully J; Dunford J; Hidden J

Background

In July 1997, a man was shot three times at close range in a laneway in Smithfield, NSW, and was found slumped behind the wheel of a running motor vehicle. Post-mortem examination confirmed that any one of the three entry wounds was potentially fatal, with ballistic evidence suggesting either two weapons or one weapon with different ammunition were used.

Two men were separately charged with the murder. One man pleaded guilty to being an accessory after the fact under an agreement with the Director of Public Prosecutions, and subsequently gave evidence for the Crown at the appellant's trial. The appellant was tried before Hulme J and a jury in the Supreme Court between April and May 2002, was found guilty of murder, and was sentenced to 25 years' imprisonment with a non-parole period of 20 years.

The appellant filed a notice of appeal in April 2004, seeking both an extension of time to appeal against conviction and leave to appeal against sentence. Both matters were heard together by the Court of Criminal Appeal.

  • Whether an extension of time should be granted to permit the conviction appeal to proceed
  • Whether the conviction for murder was sound, having regard to the evidence at trial (including the evidence of the Crown's key witness, who had himself pleaded guilty to an accessorial charge)
  • Whether the sentence of 25 years with a 20-year non-parole period was manifestly excessive, having regard to the objective gravity of the offence, the sentencing judge's findings of fact, and the appellant's youth

Decision

The Court granted the extension of time required for the conviction appeal to proceed. On the conviction appeal itself, the Court dismissed the grounds raised and upheld the jury's verdict. The Court found no basis to disturb the conviction.

On sentence, the Court concluded that the sentence imposed by Hulme J was manifestly excessive. That conclusion rested on three considerations: the sentencing judge's own limited findings about the objective gravity of the offence, concerns about some of those findings of fact, and the need to give some weight to the appellant's youth.

Sully J referred to comparative sentencing material, including the principle drawn from Reg v Toki [2003] NSWCCA 125 that a sentence exceeding 20 years would be unusual for a non-premeditated killing unless the circumstances were very bad or there were other aggravating features. Having regard to that range and the circumstances of this case, the Court considered that a sentence of 20 years better reflected the appropriate outcome.

The Court re-sentenced the appellant to 20 years' imprisonment, maintaining the same proportional approach to the non-parole period that Hulme J had applied, resulting in a non-parole period of 16 years.

Orders Made

  • Extension of time granted to permit the conviction appeal and leave application to proceed
  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence allowed; sentence passed at first instance quashed
  • Appellant re-sentenced to imprisonment for 20 years, commencing 5 October 2000 and expiring 4 October 2020, with a non-parole period of 16 years commencing 5 October 2000 and expiring 4 October 2016, on which date the appellant first becomes eligible for parole

Key Takeaways

  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that the use of a Crown witness who had himself pleaded guilty to an accessorial charge, under an agreement with the Director of Public Prosecutions, did not of itself undermine the validity of the guilty verdict.
  • A sentence exceeding 20 years for murder was identified as unusual where the killing was not premeditated, unless the circumstances were very bad or additional aggravating factors were present, following the principle stated in Reg v Toki [2003] NSWCCA 125.
  • Manifest excessiveness in a murder sentence can be established by reference to comparative sentencing outcomes, the sentencing judge's own findings of fact, and mitigating factors such as the offender's youth.
  • Where a sentence is found to be manifestly excessive, the Court of Criminal Appeal will quash it and re-sentence in accordance with the appropriate range, rather than remitting the matter for resentencing below.
  • The Court's approach to the non-parole period preserved the same ratio to the head sentence that the original sentencing judge had applied, indicating that the apportionment method was not itself criticised.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW)

Cases
- Maxwell v The Queen (1996) 184 CLR 501
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen [2002] 213 CLR 606
- R v Linh Le [2000] NSWCCA 49
- Reg v Tangye (1997) 92 A Crim R 545
- Reg v Taylor [2003] NSWCCA 194
- Reg v Tran [1999] NSWCCA 109
- Reg v AEM Snr [2002] NSWCCA 58
- Reg v Townsend and Cooper (unreported, NSWCCA, 14 February 1995)
- Reg v Toki [2003] NSWCCA 125
- Irani [2002] NSWCCA 153