Citation: R v Van Hong Pham [2005] NSWCCA 94
Court: NSW Court of Criminal Appeal
Date: 22 March 2005
Judge(s): Wood CJ at CL, Hislop J, Johnson J
Background
The respondent had a significant prior criminal history, including a sentence for armed robbery with wounding imposed in 1998. He was released on parole in April 2000 but absconded two months later to avoid deportation, and remained at large for nearly three years. Following his re-arrest and further offending, he was serving the balance of his parole when, on 7 May 2003, he escaped from custody while attending Auburn District Hospital for medical treatment. He remained at large for approximately nine months, during which time he re-offended in Victoria.
After serving Victorian sentences, the respondent was extradited to New South Wales in June 2004. He pleaded guilty in the District Court to one count of escaping lawful custody, which carries a maximum penalty of ten years' imprisonment. Judge Gibson sentenced him to 18 months' imprisonment with a non-parole period of 12 months, backdated to commence on 15 June 2004, the date of his extradition.
The Crown appealed, arguing that the practical effect of backdating the sentence to 15 June 2004 meant the respondent received virtually no additional custodial time for the escape, given the time he had already spent in custody by the date of sentencing. The Crown did not challenge the length of the sentence itself, only its commencement date.
Legal Issues
- Whether the sentencing judge erroneously took into account the prospect of the respondent's deportation when structuring the sentence
- Whether backdating the sentence to 15 June 2004 rendered it manifestly inadequate, having regard to the respondent's existing custodial position arising from the parole breach
- Whether the sentencing judge gave adequate weight to the objective seriousness of the escape offence, general deterrence, and the principle of totality
Decision
On the deportation issue, the Court of Criminal Appeal acknowledged that interchanges between the bench and counsel during submissions suggested the sentencing judge may have had deportation in mind. However, the Court noted that such exchanges do not necessarily reflect a considered sentencing decision, and it was not persuaded that his Honour in fact erred in this respect, particularly given that a parole period had been fixed.
The Court confirmed the well-established principle that deportation is irrelevant as a sentencing consideration, being a matter exclusively for the Executive Government. Equally, a foreign national is entitled to the benefit of eligibility for release on parole, consistent with the High Court's decision in Shrestha v The Queen.
On manifest inadequacy, the Crown conceded that an 18-month sentence with a 12-month non-parole period was within range for this type of escape. The Court accepted, however, that backdating to 15 June 2004 neutralised any meaningful additional custodial consequence for the escape. The respondent had absconded to avoid deportation, breached his parole, escaped from custody in circumstances involving a breach of trust, remained at large for an extended period without surrendering, and re-offended while at large. In those circumstances, the Court held that the backdating produced a result that was manifestly inadequate.
The Court varied the commencement date to 8 October 2004, reflecting a Crown concession that this date was appropriate given procedural circumstances on the day of sentencing. This adjustment meant the respondent would serve approximately an additional five and a half months in custody attributable to the parole breach, alongside the escape sentence proper.
Orders Made
- Crown appeal allowed
- Sentence below quashed; respondent sentenced to imprisonment for 18 months with a non-parole period of 12 months, both to date from 8 October 2004
- Respondent directed to be released on parole on 7 October 2005
Key Takeaways
- The Court of Criminal Appeal confirmed that deportation is an irrelevant factor in sentencing: it is a matter for the Executive, and a sentencing court must not factor an anticipated deportation into its sentencing decisions.
- Foreign nationals are entitled to the benefit of eligibility for parole, consistent with the High Court's ruling in Shrestha v The Queen (1991) 173 CLR 48.
- Manifest inadequacy in a sentence can arise not from the head term alone but from the practical effect of the commencement date, particularly where backdating produces little or no additional custodial consequence for a serious offence.
- Escaping from custody is treated as a serious offence because it endangers minimum security facilities, risks curtailing beneficial arrangements for other prisoners, and involves a breach of trust when the offender was permitted to attend external medical treatment.
- Wood CJ at CL observed that the provisions of s 57 of the Crimes (Sentencing Procedure) Act 1999 fail to address adequately circumstances of the kind raised in this case, and called for legislative reconsideration of the section.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 310D(a)
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 174(1)(a), 254
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 47, 50(1), 57(2), 57(3)
- Criminal Procedure Act 1986 (NSW), s 102
Cases:
- Shrestha v The Queen (1991) 173 CLR 48
- R v Latumetan and Murwanto [2003] NSWCCA 70
- R v Jap (NSWCCA, 20 July 1998)
- R v Kain [2004] NSWCCA 143
- R v A [2004] NSWCCA 292
- R v Dickson (2002) 132 A Crim R 137
- R v Pham [1999] NSWCCA 225
- House v The King (1936) 55 CLR 499
- Dinsdale v The Queen (2000) 202 CLR 321
- Lowndes v The Queen (1999) 195 CLR 665
- R v Thomson (NSWCCA, 21 May 1986)
- R v Butler [2000] NSWCCA 525
- R v Plummer [2000] NSWCCA 363
- R v Mathieson [2002] NSWCCA 97
- Regina v Wall [2002] NSWCCA 42
- R v Josef Regina [2000] NSWCCA 100
- R v Smith [2004] NSWCCA 69
- R v Tait (1979) 46 FLR 386