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Supreme Court 13 May 2021

R v Pham (Sentence)

[2021] NSWSC 528

Homicide
CRIME SENTENCE MURDER OBJECTIVE SERIOUSNESS OF OFFENDING JUDGE ALONE TRIAL OFFENDER PLEADED GUILTY TO MANSLAUGHTER

Citation: R v Pham (Sentence) [2021] NSWSC 528
Court: Supreme Court of New South Wales
Date: 13 May 2021
Judge: Wilson J

Background

The offender was convicted of the murder of Goran Stevanovic following a judge alone trial. The victim had attended the offender's Sadlier apartment on 8 January 2019 to purchase methylamphetamine. The offender stabbed him in the back without warning while the victim sat facing away from him, then pursued and stabbed him a further three times as he lay defenceless outside the apartment.

After the victim died, the offender and his girlfriend dragged the body back into the apartment and concealed it in the shower recess. Over the following two days, the offender significantly mutilated the body in an apparent attempt to dismember it for disposal. He then abandoned that attempt, left the body in the apartment, and fled with the victim's wallet, mobile phone, and car.

The offender had pleaded guilty to manslaughter and claimed self-defence at trial. Both the plea and the self-defence claim were rejected; he was convicted of murder. The sentencing judgment followed that verdict.

  • What was the objective seriousness of the murder, and where did it fall within the sentencing range?
  • What weight, if any, should be given to the offender's remorse?
  • Whether the offender's drug use at the time of the killing could operate as a mitigating factor on sentence.
  • What role did general and specific deterrence play in fixing the sentence?
  • How the standard non-parole period of 20 years should inform the overall sentence.

Decision

Wilson J assessed the objective gravity of the offending as beyond mid-range, placing it in approximately the middle of the upper range. Key factors included the pre-meditated nature of the attack: the offender told police he had decided to kill the victim before he arrived, and armed himself with a large chef's knife in readiness. The victim was stabbed from behind without warning while seated, unarmed, and unsuspecting. The offender then pursued him and continued the attack after the victim had collapsed and was lying prone.

The mutilation of the body was treated as a seriously aggravating feature. Her Honour found it demonstrated a callous disregard for the victim's dignity and compounded the harm to his family, who were deprived of a meaningful opportunity to farewell him. The offender's removal of the victim from the public area outside the apartment, where passersby might have rendered aid, was also held against him.

On remorse, the Court found little of substance. The offender's expressions of regret were viewed as largely focused on his own circumstances rather than genuine sorrow for the victim or his family. A psychologist's report tendered on the offender's behalf was given limited weight, as it largely recorded the offender's own unverified assertions, some of which were contradicted by other evidence.

The offender's drug intoxication was expressly held to be unavailable as mitigation. Section 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the Court of Criminal Appeal's decision in R v Henry confirmed that self-induced intoxication cannot reduce the seriousness of the offence. The Court treated drug use as a neutral factor rather than a basis for increased specific deterrence, though it noted it could properly have been treated as calling for greater specific deterrence given the offender's persistent use. The offender's lengthy criminal history meant specific deterrence carried independent weight.

Orders Made

  • The offender was convicted of the murder of Goran Stevanovic on 8 January 2019.
  • Sentenced to 30 years and 7 months imprisonment, commencing 13 January 2019 and expiring 12 August 2049.
  • Non-parole period of 22 years and 11 months, expiring 12 December 2041.

Key Takeaways

  • Post-death mutilation of a victim's body, undertaken to frustrate identification and disposal of evidence, can significantly aggravate objective seriousness in a murder sentence and compounds the harm caused to surviving family members.
  • Under s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and consistent with R v Henry (1999) 46 NSWLR 346, self-induced drug intoxication is not available as a mitigating factor on sentence for a serious violent offence.
  • Pre-meditation need not be lengthy or elaborate to be treated as an aggravating feature. The Supreme Court found that a decision made in the period between a telephone call and the victim's arrival was sufficient to characterise the killing as planned rather than spontaneous.
  • A psychologist's report prepared for sentencing purposes will carry limited weight where its contents rest substantially on the offender's own unverified assertions that are contradicted by other evidence.
  • Where the evidence does not establish a clear motive for a murder, the sentencing court is not required to resolve that question. Wilson J acknowledged the motive may never be known and proceeded to sentence on the established facts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(5AA); Table to Division 1A of Part 4

Cases:
- R v Pham [2021] NSWSC 196 (the verdict judgment)
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- Knight v R [2006] NSWCCA 292; (2006) 164 A Crim R 126
- R v Qutami [2001] NSWCCA 353