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Court of Criminal Appeal 4 September 2019

Pham v R

[2019] NSWCCA 211

Assault & violenceTheft & propertyDomestic & family violence
CRIMINAL LAW APPEALS APPEAL AGAINST SENTENCE MANIFEST EXCESS S 112(2) CRIMES ACT ASSAULT OCCASIONING ACTUAL BODILY HARM

Citation: Pham v R [2019] NSWCCA 211
Court: NSW Court of Criminal Appeal
Date: 4 September 2019
Judges: Gleeson JA, Johnson J, Fagan J (Fagan J delivering the principal judgment)

Background

The applicant pleaded guilty in the District Court to two offences arising from a violent home invasion on 11 September 2017. He forced his way into the home of a young woman he knew, punched her to the back of the head, and pushed her brother when the brother intervened. Two further offences were taken into account on a Form 1: intentional damage to property (the applicant returned to the home and smashed a television, computer, and mirror) and a common assault on a female neighbour who had come downstairs to investigate the destruction.

Judge Culver of the District Court sentenced the applicant to 6 years and 1 month imprisonment (with a non-parole period of 4 years and 6 months) for the aggravated break and enter, and 9 months (with a non-parole period of 6 months) for the common assault, accumulated by 3 months. The effective overall sentence was 6 years and 4 months with a non-parole period of 4 years and 9 months. A 25% discount for an early guilty plea had already been applied.

The applicant's background included a history of methamphetamine and cannabis abuse from a young age, a deteriorating criminal record involving violence and property damage, and limited subjective circumstances in mitigation. The sole ground of appeal was that the sentences were manifestly excessive.

  • Whether the sentences imposed by the District Court were manifestly excessive in all the circumstances.
  • How to correctly assess the objective seriousness of an offence under s 112(2) of the Crimes Act 1900 (NSW) (aggravated break and enter and commit serious indictable offence) relative to the range of conduct that provision covers.
  • Whether the degree of accumulation applied between the two sentences was appropriate.

Decision

Fagan J (with whom Gleeson JA and Johnson J agreed) found the sentences manifestly excessive and allowed the appeal. The central difficulty the Court identified was one of scale: s 112(2) covers an enormous range of conduct, from relatively minor break-ins accompanied by minor assaults up to the most extreme home invasions involving prolonged, sadistic violence. Placing the applicant's offending accurately on that scale was essential to avoid overstatement of its objective seriousness.

Fagan J accepted that the offending was serious. The applicant forced two doors, targeted a young woman in her home, punched her to the head, and later returned to cause substantial property damage. The assault on the upstairs neighbour was an additional aggravating feature properly taken into account via the Form 1. However, the Court found that, assessed against the full range of conduct captured by s 112(2), the applicant's offending fell below the midpoint. The punches were limited in number, the victim did not require medical attention, and the Form 1 matters, while adding to the overall criminality, did not elevate the offending into the higher range of seriousness.

The Court also considered the common assault of the brother. That assault involved a push rather than a blow, caused a stumble rather than a fall, and was integral to the primary break and enter offence. The Court fixed the appropriate starting point for that charge at a fixed term of no more than 6 months before the plea discount, reducing to 4 months after rounding down. On accumulation, only 1 month of accumulation was warranted, given that the second offence involved a further victim but was not independently grave.

On resentencing, the Court imposed a non-parole period of 3 years and 6 months (balance of term 1 year and 1 month) for the aggravated break and enter, and a fixed term of 4 months for the common assault, accumulated by 1 month.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentences imposed by Culver DCJ on 21 May 2018 set aside.
  • On the aggravated break, enter and commit serious indictable offence charge (taking into account Form 1 matters): non-parole period of 3 years and 6 months commencing 11 October 2017 (expiring 10 April 2021), balance of term of 1 year and 1 month expiring 10 May 2022.
  • On the common assault charge: fixed term of 4 months commencing 11 September 2017 (expiring 10 January 2018).
  • Earliest eligible release on parole: 11 April 2021.

Key Takeaways

  • Assessing objective seriousness under s 112(2) of the Crimes Act requires a court to locate the specific offending within the very wide spectrum of conduct that provision captures, from minor to extreme. Failure to calibrate correctly on that scale can produce a manifestly excessive sentence.
  • Where a break and enter offence is already charged in its aggravated form because the offender inflicted bodily harm, a sentencing court cannot treat the fact that the offence occurred during a home invasion as an additional aggravating feature for a related assault charge, as this risks impermissible double punishment.
  • The Court of Criminal Appeal confirmed that accumulation decisions attract a degree of deference on appeal, but on resentencing the Court may reconsider concurrence or accumulation entirely.
  • Significant criminal histories involving repeated violence and drug-related offending may preclude leniency and justify full weight being given to specific deterrence, even where some subjective mitigating factors are present.
  • A 25% discount for an early guilty plea, combined with a finding of special circumstances limited only to achieving a specific non-parole-to-head-sentence ratio, were accepted features of the original sentence that the Court of Criminal Appeal carried forward in its resentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 59(1), 61, 105A(1)(d), 112(2), 195(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 37, 44(2)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Dinsdale v The Queen (2000) 202 CLR 321
- R v Meatuai [2016] NSWCCA 42