Pham v R

Court of Criminal Appeal (NSW)|2017-04-18|Before: Basten JA, McCallum J, Fagan J

Solicitors: George Sten & Co (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/250252; 2013/354497 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 5 August 2016 Before: Norton SC DCJ File Number(s): 2013/250252; 2013/354497

Judgment

BASTEN JA: On 5 August 2016 the applicant, Dinh Khong Pham, was sentenced by Judge Norton SC in respect of four counts of break and enter and steal, with a further 10 counts being taken into account on a Form 1. The applicant was also sentenced for a robbery involving the snatching of a handbag containing personal valuables, in the course of which the victim suffered actual bodily harm. The Form 1 with respect to that offence included a further offence of being carried in a stolen vehicle. The sentencing judge imposed a non-parole period of 7 years and 6 months, with an additional term of 3 years and 6 months.
Pursuant to an amended notice of appeal filed on 9 February 2017, the applicant alleged that the aggregate sentence was manifestly excessive and that the sentence did not "reflect parity with the sentence imposed upon the co-offender Daniel Gordon."
It was clear from written submissions filed on 25 January 2017 that the focus of the application was upon the alleged disparity between the applicant's sentence and that imposed on Mr Gordon. Although ground 1 was not abandoned, the emphasis on disparity was maintained at the hearing of the application for leave to appeal. For the reasons which follow, the proposed grounds were untenable and, at the conclusion of the hearing, the Court refused leave to appeal.

Ground 2 - disparity

The applicant's case turned squarely on the difference between the aggregate sentence imposed on him and the aggregate sentence imposed on his co-offender, Mr Gordon, who was sentenced for the same principal offences. Mr Gordon's sentence comprised a non-parole period of 3 years and 7 months, with a balance of term of 2 years and 5 months. The applicant therefore faced a total sentence of 11 years, as compared with Mr Gordon's sentence of 6 years. Counsel placed much weight on these figures. However, the reason for the differing sentences was fully explained when one had regard to the starting points for the indicative sentences for each offence and the discounts applied for the pleas and assistance.

(a) reasoning of sentencing judge

Beyond reference to these overall figures, the application ran into serious difficulty. First, both offenders were sentenced by Judge Norton, Mr Gordon having been sentenced one year earlier than the applicant. Secondly, in what was a careful and comprehensive judgment on sentence, explicit attention was paid to the question of parity. Thus, the sentencing judge noted the following points of difference between the applicant and Mr Gordon, as identified in the prosecutor's submissions on sentence: [1] "Mr Gordon entered pleas of guilty at the earliest opportunity in the Local Court with respect to the break and enter offences whilst this offender entered his plea at trial; Mr Gordon was entitled to a discount for assistance against the offender; Mr Gordon was not on conditional liberty at the time of commission of the offences and his time in custody is solely referable to the break and enters and robbery offence. Thus, it was submitted that a longer custodial sentence is warranted for this offender."
When making findings and considering an appropriate sentence, the judge explained her reasoning on parity in the following passage: [2] "The principle of parity requires that persons in like circumstances be dealt with in a like fashion. The offender is to be sentenced for substantially the same offences as Mr Gordon. The Crown submissions are correct insofar as Mr Pham is to [be] sentenced for two additional offences of aggravated break, enter and steal (on Form 1s) and two additional s 166 matters. Both offenders have lengthy criminal histories and both were equally culpable for the break, enter and steal offences. I found that the offender was fractionally more culpable for the robbery offence given his role as a passenger who physically grabbed the bag from the victim. The offender was on conditional liberty at the time he committed the offences, is entitled to a lower discount for his pleas of guilty, no discount for assistance. In all the circumstances having regard to the offender's conduct, his subjective circumstances and the principles of parity and totality I consider that the offender must receive a lengthier sentence than Mr Gordon."
The offence of robbery was treated as the most serious of the offences under consideration. Following the agreed facts, the judge described the offence as follows: [3] "At 2pm on [20 July 2013] Mr Gordon drove the stolen vehicle to the car park at Canley Heights. The offender was at that time hanging out of the rear window of the vehicle and grabbed a handbag which was on the right shoulder of the victim Ms Nguyen. Ms Nguyen's arm was caught in the strap of the bag and she was pulled along the ground for approximately seven metres before the handbag became disentangled and released her. Mr Gordon drove the vehicle away. Ms Nguyen suffered bruising to her [right] arm, grazes to her left arm and bruising and swelling of both knees. It is clear the event would have been one which caused her significant fear and emotional distress. The contents of her bag [included] a mobile phone, St George and NAB credit and debits cards, Medicare card, $400 in cash and a New South Wales driver's licence."
The need for a higher sentence in respect of the robbery was explained in the following passage: [4] "I agree that the bag snatching was a significant breach of the peace. The offence was partly opportunistic and I find that the offender did not set out to injure or intimidate anyone. I find that the offender's culpability for the offence is slightly higher than Mr Gordon's culpability as he personally grabbed the bag from the victim's shoulder. He therefore must have been aware of what was happening to Ms Nguyen."

(b) objective culpability

The objective circumstances led to a heavier sentence being imposed on the applicant, for two reasons. First, the differing levels of culpability with respect to the robbery led to the indicative sentence imposed on Mr Gordon being calculated by reference to a starting point of 5 years, whereas the starting point for the applicant was 5.5 years. [5] Secondly, the judge divided the aggravated break and enter charges into two groups, the first being the more serious offences and the second being the less serious. With respect to the more serious offences, the starting point for the indicative sentences for both the applicant and Mr Gordon was 5 years. With respect to the less serious offences, the starting point for the indicative sentences was 4 years 6 months in respect of the applicant and 4 years with respect to Mr Gordon. [6] The differential reflected the fact that the applicant had two more offences taken into account on Form 1s than did Mr Gordon.
There are different ways in which one can compare these figures. An addition of the starting points for each offence gave a total of 24 years 6 months with respect to the applicant and 23 years with respect to Mr Gordon. The total of the starting points thus reveals a 6.5% disparity for the applicant, over Mr Gordon. This element of the disparity was entirely justifiable in the circumstances. Indeed, no complaint is made in this respect.

The real difficulty for the applicant lay in the discounts accorded to each. Although no complaint was made in respect of the discounts themselves, their combined effect was to explain the remaining disparity in the final aggregate sentences. Thus, the applicant having entered pleas of guilty to all offences only after the trial was due to commence, obtained a discount of 12.5% for the late pleas. By contrast, Mr Gordon obtained a discount of 25% with respect to the aggravated break and enter charges and a discount of 12% with respect to his plea to the robbery charge. In addition, he obtained a discount of 25% for past and future assistance to law enforcement authorities. The total discount with respect to the offences of aggravated break and enter (four offences) was therefore 50% and in respect to the robbery, 37%. The average discount was therefore about 47% for Mr Gordon, as compared with 12.5% for each offence for which the applicant was sentenced.
So far as the applicant's aggregate head sentence was concerned, the starting point prior to discounting must have been 151 months. (That figure, reduced by 12.5%, is 132 months, or 11 years.) However, had that figure been reduced by 47%, the result would have been 80 months, being only 8 months more than the 6 year sentence imposed on the co-offender. The remaining difference is readily explained by the greater culpability of the applicant and therefore a lower starting point for Mr Gordon. Accordingly, there was no unwarranted disparity.

(d) non-parole periods

It is true that the disparity with respect to non-parole periods was greater, but that was because the judge sentenced Mr Gordon to a non-parole period which was 60% of the total sentence, whereas the equivalent figure in relation to the applicant was 68%. Those figures reflected the different findings with respect to prospects of rehabilitation and future offending. The judge found that Mr Gordon's assistance to police was "a positive sign with respect to prospects of rehabilitation". [7] With respect to the applicant, the judge found that there were "guarded prospects of rehabilitation and a high to moderate risk of reoffending." [8]
Once the calculations set out above have been taken into account, it is apparent that all but a small proportion of the differential sentences is explained by the respective discounts. The remaining differential is explained by reference to the higher moral culpability of the applicant (including taking into account two additional offences, the fact that the offences were committed whilst on conditional liberty and the greater culpability with respect to the robbery), which factors remove any basis for justifiable grievance.

(e) custodial conditions

Finally, the applicant submitted that greater consideration should have been given to the fact that he was to be held on protection and thus unable to associate with fellow prisoners for much of the day. That was a matter which the trial judge took into account, correctly construing the limited evidence before her as to his current status in the gaol system and his likely future status. [9]
To the extent that this was a factor sought to be taken into account with respect to disparity (which was not clear), it was addressed in sentencing both the applicant and his co-offender. When sentencing Mr Gordon, the judge noted that it was common ground between the parties that "as a result of his assistance to authorities the offender is likely to spend his time in prison in limited association and this will make his time in prison more onerous and will restrict his access to educational and other courses and lifestyle assistance that [are] available within the system." [10] While it was true that, in giving evidence at the sentencing hearing for Mr Pham, Mr Gordon said he was no longer in protection, [11] the proper comparison is between the factual findings upon which Mr Gordon was sentenced and the findings upon which Mr Pham was sentenced.

Manifestly excessive sentence - ground 1

Although the allegation that the sentence was manifestly excessive was not withdrawn, the submissions touched on it but lightly. That course was understandable. Each of the four counts involving aggravated break, enter and steal carried a maximum penalty of 20 years imprisonment, with a standard non-parole period of 5 years. The offence of aggravated robbery also carried a maximum penalty of 20 years, although with no standard non-parole period. Because the five primary offences were each entirely separate (although all were committed within a period of some six weeks), before having regard to the principle of totality, a significant degree of accumulation was warranted. Further, given the late pleas, the standard non-parole period remained a material guidepost.
As none of the starting points of the indicative sentences exceeded the 5 year standard non-parole period with respect to the aggravated break, enter and steal offences, it would be difficult to establish that the aggregate sentence was manifestly excessive. At least that is so in respect of sentences committed whilst on conditional liberty, by an offender with a substantial criminal record and having no claim for leniency, either by way of age or, for example, facing a first custodial sentence.
Far from being manifestly excessive, the aggregate sentence was manifestly within a range reasonably available to the sentencing judge.

Conclusion

There being no tenable basis upon which the sentence could be challenged, leave to appeal against sentence was refused.
McCALLUM J: I agreed that leave to appeal should be refused, for the reasons stated by Basten JA.
FAGAN J: I agree with Basten JA.

Endnotes

Sentencing judgment (Pham), p 21.
Sentencing judgment (Pham), pp 28-29.
Sentencing judgment (Pham), pp 10-11.
Sentencing judgment (Pham), p 27.
Sentencing judgment (Gordon), p 18; sentencing judgment (Pham), p 30.
Sentencing judgment (Pham), pp 29-30; sentencing judgment (Gordon), pp 18-19.
Sentencing judgment (Gordon), p 15.
Sentencing judgment (Pham), p 28.
Sentencing judgment (Pham), pp 15-16.
Sentencing judgment (Gordon), pp 15-16.
Tcpt, 04/03/16, p 26(30)-(35). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 April 2017

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Judgment (11 paragraphs)

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