Citation: R v Pham [2025] NSWSC 180
Court: Supreme Court of New South Wales
Date: 6 March 2025
Judge: Rigg J
Background
The offender was convicted by jury of the murder of Taha Sabbagh, who was shot outside a gym at Sefton in the early morning of 2 March 2023, in front of a child. The offender was not the shooter, nor the driver of the vehicle from which the shooter emerged. He was convicted as a participant in a joint criminal enterprise to kill.
The offender's role was logistical. He transported the shooter and getaway driver to the car they used to carry out the killing, then waited at a unit complex in Bankstown for over an hour before driving them away from that location. He later sprayed bleach in his own car. He was arrested at Sydney Airport on 23 April 2023 while attempting to fly to Vietnam, having applied for an emergency passport on the morning of the murder.
Following his arrest, the offender made extensive admissions to undercover police officers posing as fellow detainees. He acknowledged knowing the two principal offenders, driving them before and after the shooting, and receiving an offer of money (stated variously as $10,000 or $20,000) for his involvement. The court accepted that the offender trusted the principal offenders and was not fully aware of how they were using him.
Legal Issues
- What facts were established to the requisite standard regarding the timing and extent of the offender's knowledge of the plan to kill?
- Whether the offender's conduct on 28 February 2023 (parking near the gym in a position with a clear view of the carpark) constituted surveillance in furtherance of the joint criminal enterprise.
- How the offender's mild intellectual disability bore on his moral culpability and the sentencing exercise.
- What weight to give to the offender's personal circumstances, including his limited prior record, his conduct in custody, and his prospects of rehabilitation.
- Whether special circumstances existed to justify varying the standard non-parole period ratio.
Decision
Rigg J sentenced the offender for murder, acknowledging that his role fell well below that of the principal offenders. The court found that, at a minimum, the offender drove the principals after the killing with knowledge that they had killed someone, and did something before the killing with knowledge that they intended to kill. The precise timing of when the offender gained that knowledge was a disputed factual question, with the court required to sentence on the basis most favourable to the offender where reasonable doubt remained.
The court found that the offender's mild intellectual disability was a significant factor in his involvement. He was assessed as vulnerable to exploitation and manipulation, likely did not fully appreciate the gravity of what he was doing, and was probably used by the principal offenders to insulate themselves. These findings reduced his moral culpability, though the court noted that intellectual disability does not extinguish it. His culpability was nonetheless elevated by the deliberate destruction of evidence (the bleach) and his attempt to flee the jurisdiction.
On rehabilitation and community protection, the court found the offender unlikely to reoffend. He had a limited prior record with no history of violence, was conducting himself well in custody, and had good prospects of rehabilitation, though he would require support upon release. The court noted that this was not a case where reduced moral culpability from intellectual disability increased concerns about community protection.
Special circumstances were found to exist, justifying a longer-than-standard parole period. The offender's intellectual disability meant he would need substantial assistance when reintegrating into the community, and the court considered that a longer period of post-release supervision would better serve both his rehabilitation and community safety.
Orders Made
- The offender was sentenced to 18 years imprisonment commencing 23 April 2023 and concluding 22 April 2041.
- A non-parole period of 12 years was imposed, commencing 23 April 2023 and concluding 22 April 2035, the date of first eligibility for parole.
- Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), the court noted that Act's potential application to the offender and directed his legal representative to advise him accordingly.
Key Takeaways
- A participant in a joint criminal enterprise to kill can be convicted of murder without being present at the scene, provided the jury is satisfied beyond reasonable doubt that the participant took steps in furtherance of the enterprise with knowledge that others intended to kill.
- Mild intellectual disability can reduce an offender's moral culpability for serious offences where it contributed to the offender's susceptibility to exploitation and impaired appreciation of the gravity of the conduct, even where it does not wholly excuse participation.
- Where facts relevant to the extent of an offender's knowledge remain genuinely in dispute at sentencing, the sentencing court proceeds on the version most favourable to the offender, provided that version is reasonably open.
- The Supreme Court identified this as a case where reduced moral culpability arising from intellectual disability did not, in the circumstances, increase concerns about community protection, given the offender's limited prior record, absence of violent history, and positive conduct in custody.
- Special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) were established by the combination of the offender's intellectual disability and the need for extended, well-established community support services upon his eventual release.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)
Cases
- Britton v R [2024] NSWCCA 138
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156