Pham v R

Judgment

1. GLEESON JA: I agree with Fagan J.
2. JOHNSON J: I agree with Fagan J.
3. FAGAN J: This is an application for leave to appeal against sentences imposed by her Honour Judge Culver in the District Court on 21 May 2018. Before her Honour the applicant pleaded guilty to two charges and consented to having two additional offences taken into account on a Form 1.
4. The first offence was an aggravated break and enter with commission of a serious indictable offence, namely, an assault occasioning actual bodily harm (s 59(1) of the Crimes Act 1900 (NSW)). The particulars were that the applicant forced his way into the home of Ms Thi Thu Phan at about 10:30 am on 11 September 2017. He forced the front timber door and a metal security door, damaging both. The applicant threw a bottle in the direction of Ms Phan and said, "You go die". He then punched her to the back of the head two or three times, causing a small laceration to her neck and a bruise. Ms Phan did not require medical attention. She was 21 years old at the time and was known to the applicant. The offence was charged in its aggravated form contrary to s 112(2) of the Crimes Act, which carries a maximum penalty of 20 years and a standard non-parole period of 5 years. The aggravation was the intentional infliction of actual bodily harm: see s 105A(1)(d).
5. The second offence was a common assault perpetrated against Ms Phan's 19-year-old brother, Mr Cao Phan. He resided with his sister. He responded to her cry for help when the applicant entered her bedroom. Mr Cao Phan saw one of the punches delivered by the applicant to his sister's head. He pushed the applicant away, enabling his sister to flee. The applicant then pushed Mr Cao Phan, causing him to stumble. That push constituted the common assault, charged under s 61 of the Crimes Act and carrying a maximum penalty of 2 years.
6. One of the matters taken into account on the Form 1 in sentencing the applicant for the first offence was intentional damage to property. When Ms Phan fled from her bedroom she went via external stairs to the home of her neighbours who lived on the first floor of the building. After the applicant had pushed Mr Cao Phan as described earlier, the applicant left the building and Mr Cao Phan went upstairs to find his sister. The two victims and their neighbours then heard the sound of things being broken in the dwelling below. The applicant had returned and smashed a television, computer and mirror within the dwelling. The damage, together with what had been caused by the forced entry, was to a value of about $5,000. This matter was charged under s 195(1)(a) of the Crimes Act for which there is a maximum penalty of 5 years.