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Court of Criminal Appeal 27 February 2007

Phan v R

[2007] NSWCCA 42

Also reported as 169 A Crim R 22
DrugsFirearms & weapons
CRIMINAL LAW SENTENCING SUPPLY PROHIBITED DRUG POSSESSION PROHIBITED FIREARM PLEAS OF GUILTY SPECIAL CIRCUMSTANCES

Citation: Phan v R [2007] NSWCCA 42
Court: NSW Court of Criminal Appeal
Date: 27 February 2007
Judge(s): Simpson J (principal judgment); Howie J and Buddin J agreeing

Background

The applicant pleaded guilty in the District Court to three offences: supplying heroin (3.77 grams found in a vehicle), possessing a prohibited firearm (a shortened double-barrelled shotgun), and carrying that firearm in a manner likely to injure a person or property. The drug offence occurred in March 2005. The firearms offences occurred in August 2005, while the applicant was on bail for the drug matter.

The firearms offences arose from a deeply serious incident. At his home, the applicant produced a loaded shotgun and posed with it while friends photographed him. The weapon discharged and struck his best friend in the back of the skull, causing severe and lasting brain injuries. The applicant hid the gun and initially fled before being arrested.

Sorby DCJ sentenced the applicant to a fixed term of 12 months for the drug supply offence, a concurrent fixed term of two years for possession of the firearm, and a partially cumulative term of six years (non-parole period of four years, balance of term two years) for the carrying offence, commencing after the drug supply sentence expired. The applicant sought leave to appeal those sentences as manifestly excessive and also raised a procedural fairness ground.

  • Whether the overall sentences were manifestly excessive having regard to the applicant's subjective circumstances and the finding of special circumstances
  • Whether the sentencing judge erred in the structure of the sentences, including the proportions between non-parole periods and balance of term
  • Whether the accumulation of sentences was appropriate across multiple offences arising from related but distinct events
  • Whether the applicant was denied procedural fairness because the sentencing judge had indicated that concurrent sentences would be imposed, and then departed from that indication without giving counsel an opportunity to address the point

Decision

Simpson J, with Howie J and Buddin J agreeing, granted leave to appeal but dismissed the appeal in its entirety, finding no error in the sentences imposed.

On the question of manifest excess, the Court found the sentences were within the available range given the seriousness of the offences, the applicant's relevant criminal history, and the aggravating circumstances, including that the firearms offences were committed while the applicant was on bail. The Court accepted that the sentencing judge had properly considered the applicant's subjective circumstances, including his youth, his difficult upbringing in Vietnam, the disruption he experienced after arriving in Australia, his expressed remorse, and the psychiatric evidence.

On special circumstances and sentence structure, the Court found no error in how the sentencing judge adjusted the statutory proportions between non-parole period and balance of term. The partial accumulation of the sentences was consistent with the principle in Pearce v The Queen that distinct offences, even where related in time, generally warrant some accumulation to reflect the criminality of each.

On procedural fairness, the applicant argued that remarks made by the sentencing judge during proceedings had led counsel to believe all sentences would be made concurrent, and that counsel was therefore denied the opportunity to address accumulation. The Court distinguished this case from Fairbairn v R [2006] NSWCCA 337, where the sentencing judge had made an explicit and unequivocal statement that sentences would not be accumulated. Here, the Court found the exchanges were less definitive and that the judge's comments were best read as a recitation of Crown submissions rather than a firm indication. In any event, making the drug supply sentence wholly concurrent with the firearms sentences would have been an error, given that offence arose from a separate occasion. No procedural unfairness was established.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's in-court remarks about sentence structure will only give rise to a procedural fairness ground if they amount to a clear, unequivocal indication that the judge had settled on a particular approach, such that defence counsel could reasonably understand there was no need to address the point further.
  • The Court of Criminal Appeal distinguished Fairbairn v R, confirming that the strength of any procedural fairness complaint depends closely on how explicit and unambiguous the relevant indication was.
  • Where offences arise from distinct events (here, drug supply on one occasion and the firearms offences on a separate occasion months later), partial or full accumulation of sentences is generally appropriate to reflect the separate criminality involved, consistent with Pearce v The Queen.
  • Committing offences while on bail remains a significant aggravating factor in sentencing, capable of weighing against an applicant even where other subjective circumstances are sympathetic.
  • In dismissing the appeal, the Court confirmed that the overall sentencing structure, including adjustments for special circumstances, fell within the proper exercise of the sentencing judge's discretion and disclosed no error warranting appellate intervention.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 93G(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 4 Division 1A, ss 21A, 44(1), 44(2), 54B
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 25(1), 29, 32(1)
- Firearms Act 1996 (NSW), s 7(1)

Cases:
- Fairbairn v R [2006] NSWCCA 337
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Huynh [2005] NSWCCA 220
- R v Moffitt (1990) 20 NSWLR 114
- R v Musgrove [2007] NSWCCA 21
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Way [2004] NSWCCA 131; 60 NSWLR 168