R v Phan [2020] NSWDC 348 | Case summary

DNA EVIDENCE

The DNA swabs taken from the grip of the firearm and the airbags of the ute were analysed and the offender's DNA was identified.
It is accepted that some days before the offender was detected having possession of the prohibited pistol and relevant materials, that he and his family had been the subject of an attempted home invasion, during which three males wearing balaclavas had approached him shortly after he had returned home and fired a number of bullets at him, striking in the vicinity of him and also his young child. The offender has informed others, although he has not given evidence on sentence, that he then obtained thereafter the Glock 19 for the purpose of defending both himself and his family.
His motive in obtaining the weapon and having it in his possession are, of course, relevant to the objective seriousness of the offence, and also as to the level of his moral culpability, as referred to in Sumrein v R [2019] NSWCCA 83 by Hidden AJ, with Leeming JA and Ierace J agreeing. I have taken his motive into account in both of the ways suggested in that judgment - that is it lowers the objective seriousness of the offence and also lowers his moral culpability.
Nonetheless the offences are serious. The offender was driving a motor vehicle, having with him a prohibited pistol which was in fact loaded. There is no explanation for why he fled from the motor vehicle after the accident, leaving behind the pistol. There is no explanation for why he so poorly drove the motor vehicle as to run into a telegraph pole at 9.20am in the morning, when he would otherwise appear to have been in fact on his way to attend at the Liverpool Local Court for the purpose of answering a charge of driving a vehicle whilst there was an illicit drug present in his blood.
Although he had been charged with that offence and a further offence not then dealt with of owner not disclose identity of driver/passenger, he was not on conditional liberty in relation to either of those matters or any other matter.
Returning to the objective seriousness of the offences, individual members of the public who drive around with loaded prohibited pistols capable of being discharged and causing serious injury to others are of serious concern to the community. The Australian and New South Wales legislation significantly curbing the right of individuals to carry weapons has been of significant assistance in recent years to the general community by way of comparison to what happens in other countries where firearms are more freely available.
The offender had the pistol for the purpose of defending himself and/or his family. That includes obviously a premeditated intention that he would use it if necessary for those purposes. There is a serious risk in respect of any individual using a firearm at any time, whether it be in a public place or private premises. Use of a firearm may inflict injury on persons that it is not intended to inflict injury on, and even in respect to persons it is intended to inflict an injury to, whether it is self-defence or not, may constitute in itself a serious crime.
In Thalari v R [2009] NSWCCA 170 at 88 it was stated: "The fact that the pistol was loaded, and that the appellant possessed other ammunition, bore upon the seriousness of his crimes. The appellant's claim that he possessed the loaded pistol for his own protection was not a matter of significant, if any, mitigation, since the policy of the legislature evinced by the enactment of the offence under 7(1), with a maximum penalty of 14 years' imprisonment, was to act as a deterrent, and to punish possession of a pistol per se. The rule of law, and the authority of courts, depends upon the proposition that persons do not, by illegal means, take their protection into their own hands."
Before the Court is a report from Dr Nielssen, which includes a reference to the offender as stating: "He said that he took methylamphetamine to stay awake so that he could stand guard and the accident occurred after two weeks of continuous use of methylamphetamine with no sleep."
I note that shortly after he was arrested and admitted into custody he was determined to be suffering then from a psychosis, indicated by Dr Nielssen as being a drug-induced psychosis. It is of serious concern that the offender in the circumstances had been consuming methylamphetamine for a significant period of time prior to committing the offence, and shortly after having been taken into custody and imprisoned was determined to be in fact suffering from a drug-induced psychosis. In my view having a loaded pistol in a public place in those circumstances increases the seriousness of the offence because of the increased risk to public safety; Lamis v R [2016] NSWCCA 274 at 49, where the Court observed that at the time of the offence, the offender was affected by drugs: "… (he) had taken over the course of the preceding five days, during which he had not slept. Given that he had armed himself with a loaded and lethal pistol, which he was prepared to use, as well as a knife...that he posed considerable risks to public safety is undoubted."
The only difference in this matter appears to be that the offender was not armed with the additional knife.
Having abandoned the motor vehicle, inevitably someone would attend to inspect it and/or remove it. If that was a member of the public who was not familiar with firearms, there was a significant risk that on discovering the firearm it would be accidentally discharged, potentially causing injury to the person discharging it or some other person or property.
In my view, the objective seriousness in relation to the offending in this matter and in relation to each of the three offences for sentence, which need not to be considered entirely separately in that regard as it was the one prohibited pistol on the one occasion, as approaching the midrange of objective seriousness but not at it.
As to subjective matters, before the Court is a Sentencing Assessment Report under the hand of Tara Schmidt, dated 31 March 2020, a New South Wales Criminal History, a New South Wales Department of Corrective Services Conviction, Sentence and Appeals Report as of 26 March 2020, a report from Dr Nielssen, psychiatrist, dated 6 March 2020, a report of Mira Azar, psychologist, dated 14 January 2016, a further report from her dated 9 November 2016 and a letter from her dated 27 March 2020. In addition there is a statement from the offender's de facto partner, Sarah Cao, dated 23 March 2020, and a letter from the John Morony Correctional Centre, dated 31 March 2020.
The offender did not give evidence on sentence. Subjective matters are drawn from the material that is before the Court.
The offender was 28 years of age at the time of the offending. His criminal history indicates that he was twice dealt with in the Children's Court, on one occasion for three counts of robbery being armed with an offensive weapon and on another occasion in respect of stalk, intimidate with intent to cause fear of physical or mental harm. Those were of course offences committed when he was a juvenile in 2006.
As an adult there is an offence of supply a prohibited drug, more than indictable quantity, not cannabis, dealt with in the Downing Centre District Court on 17 March 2017, in respect of which he received an Intensive Correction Order of two years, expiring on 16 March 2019.
There are otherwise a number of driving offences, being three offences committed on the same occasion of drive etc when visiting privileges withdrawn, drive behind other vehicle too closely to stop safely, not give particulars to police, and the offence that I have previously referred to of drive vehicle with illicit drug present in the blood committed in March 2019, and an offence of owner not disclose identity of driver/passenger in June 2019.
The offender has never spent any time in any form of custody either as a juvenile or as an adult until being arrested in respect of this offence. He has been in custody now since the date of his arrest, being 3 July 2019 solely in relation to this matter.
The New South Wales Department of Corrective Services Conviction Sentences and Appeals Report indicates that since having been taken into custody in respect of this matter, he has on three occasions been detected in possession of a drug while in custody, being on 9 October 2019, 22 January 2020 and 1 March 2020. There is no indication as to what particular drug was involved on any of those three occasions.
It is of concern that the offender, who on other material before the Court has been using drugs for a number of years, and having committed these offences and being in custody, has even in custody continued to use some form of drug.
The Sentencing Assessment Report states: "Mr Phan appears to have connections with anti-social associates, of whom he appeared to obtain a firearm from...Mr Phan attributed his involvement with criminal behaviour to be influenced by illicit drug use and negative associates."
He is noted as having taken responsibility for the offences, as I note he did when first spoken to by the police. He: "claimed he acquired the firearm to protect himself from unknown men he believed were trying to harm him...Mr Phan stated he did not plan to use the firearm for violence, however appeared to contradict this statement, advising he planned to use the firearm to scare three men he believed to be targeting him for reasons he could not explain."
What apparently appeared as a contradiction to the author of the Sentencing Assessment Report may be explained by the offender believing that the sight of the firearm would be enough to scare them. However, that would not require a loaded firearm, that is, one ready to be discharged by simply pulling the trigger, as is the case of a Glock 19, once a bullet has been chambered into the firing position.
The report also notes: "Throughout the interviewing pertaining to the report, Mr Phan appeared to be withholding information around his connection to the criminal associates relevant to circumstances leading to his arrest."
He was assessed as being a medium, low risk of reoffending.
The reports from Mira Azar indicate that he first sought assistance from her when he had been charged with the indictable drug supply offence that I have previously referred to; that is prior to being dealt with at Court. He has had a number of consultations with her over the years, although those consultations initially appeared to cease prior to being finally dealt with for the drug supply offence.
He apparently had a normal upbringing and a happy family, his parents having come to Australia from Vietnam. He was born in Australia. Unfortunately his family had a small business which eventually ended in their becoming bankrupt and homeless for a period of time, being provided accommodation from place to place with friends and family.
He has been in a long term relationship with his present partner, Ms Cao, which commenced at about the age of 18 or 19 years. He has apparently suffered from anxiety and depression for many years, and he has had a substance abuse problem since at least 2006, his experimentation with drugs commencing in approximately 2006. Even in Ms Azar's first report it is indicated that his substance abuse, while providing some temporary relief from his anxiety and depression, had exacerbated his depression and anxiety and that he realised this because: "Mr Phan stated that the substance abuse has impaired his judgment, ability to make decisions, aggravated or caused interpersonal relationship difficulties and impaired his ability to problem solve effectively. Mr Phan has identified the underlying problem and has sought psychological support."
In the report he is referred to as having previously attempted to enter rehabilitation programs, though the waiting lists were extensive. His failure to enter them he excused by explaining his having sought help from the Fairfield Drug and Alcohol Clinic, and having been told that they would call him back, they did not do so, and he had being told to go home and sleep it off, so that he was not going to attend any programs unless he was convinced they were effective before attending. He had, however, recognised his need for assistance and accordingly attended counselling with Ms Azar as indicated.
As to the strategy used by her in his treatment, she states that the therapy: "consisted of diagnostic assessment, psycho educational strategies, cognitive behavioural therapy, behavioural interventions, relaxation strategies and skills training. Mr Phan responds well to therapy and has made some progress...Mr Phan has implemented strategies that were developed during counselling and stated that his overall wellbeing had improved when he maintained counselling on a regular basis."
He has also said to have been, in relation to the earlier offence: "remorseful for the stress he has now placed on his employees, their families and his immediate family due to their concerns about the sustainability of their employment. Mr Phan presents as authentic in regards to attitude and remorse and is making a genuine commitment to modify his behaviour."
Finally in that report she recommended that he attend a court approved drug abuse dependence program and recommended three different programs. There is no evidence that he attended any of those programs, whether as a result of voluntary attendance, as recommended by her, or as part of the Intensive Correction Order imposed in March 2017.
In her second report of 9 November 2016, it refers to him having attended again for a number of counselling sessions, but noting that he had admitted to relapsing and taking drugs since January 2016, although claiming that the frequency was less and the quantity significantly lower, with some periods of abstinence.
I have previously referred to Dr Nielssen's report of 6 March 2020, in which he refers to the offender as having suffered a psychotic episode triggered by the methylamphetamine he took in the period prior to the offence.
The offender had no learning or serious conduct problems at school. At the time that his family was forced to sell the family home due to the bankruptcy, he dropped out of school partway through Year 10. He claimed to have been very affected by the death of a close friend from his childhood, who he understood had become involved in drug activity and was murdered after being blamed for the theft of some drugs. For some unstated reason he had blamed himself in relation to his friend, for not helping him more. His own use of methamphetamines is said to have increased after his friend's death.
After being received at prison, he was medicated with an anti-psychotic and his psychosis eventually cleared. Although he is said to have used alcohol from his teenage years, occasionally in excess, he has no reported complications from alcohol use. He has apparently been a regular cannabis user from around the time he finished school and "it was daily for the past 15 years". Of course it has been long recognised that cannabis use in itself may lead to psychosis in the vulnerable.
He acknowledged that his use of methamphetamine was his main problem and referred to having made a number of attempts to stop, particularly after his previous offence, and he said, "I am nine months clean now which is the longest for eight years. This time I will definitely kick it...it does not interest me...I don't crave it...I don't want it."
As to being clean, this is of course in relation to the period that he has been in custody, and I note that although he has been on three occasions breached for being in possession of drugs, there is no indication in the Corrective Services report that it is in relation to methamphetamine rather than any other drug available in prison, which includes most of the drugs available in the community but also restricted drugs which are not prescribed for individual prisoners, so it may be in fact correct that he has not for nine months used methamphetamine.
He has also over the time occasionally used opioids and the opioid replacement buprenorphine. At the age of approximately 17 there was a period when he was abusing anabolic steroids. Clearly the offender has a significant history of abusing prohibited drugs and/or restricted drugs. Whatever his intentions have been from time to time to deal with these problems he has to date not managed to do so.
Dr Nielssen noted the offender's reported intention not to return to drug use and opined, "Mr Phan's prognosis is closely related to the future course of his substance use disorder". Provided he was able to remain drug free and did not face further threats, he was assessed to have good prospects for rehabilitation based on the support from his wife and his devotion to their young son, and his gainful employment in two viable businesses. The viable businesses are a trucking transport business that he has set up together with his brother, and an interest that he has, as I understand it, in his brother's motor workshop.
Ms Cao's statement indicates that the absence of the offender from the businesses has caused a significant setback. She also refers to him as having taken his first serious steps to try and get clean of drugs when he was arrested for drug supply in August 2014.
I note in respect of Ms Azar, that in her letter of 27 March 2020 she indicates that as a result of the then recent home invasion she did what she refers to as an "emergency intervention" on 2 July 2019, which is of course the day before the offending, by attending at the offender's residence.
She states, "Mr Phan stated he was self-medicating to cope, however he did not elaborate any further during this session." According to the information in Dr Nielssen's report, he had been self-medicating for a significant period of time with methamphetamine on a daily basis. Any effect that that might have had on him on 2 July 2019 was not noticed by Ms Azar, nor did he inform her that he had returned to a significant degree of use of methamphetamine.
I accept that he has managed to support his family, including his parents, through his business activities, together with his brother and his wife, who has now had to step in in his absence, and I accept that there has been a downturn in the business as a result of his unavailability while in custody, and I accept that his absence having caused the downturn in the business, life has become more difficult for his partner because of the fall in income, although in current times COVID-19 may have had the same effect. I accept that the emergency counselling indicates that he was affected to a significant degree by the home invasion.
It is unfortunate that although he has acknowledged in the past that he has a problem with prohibited drugs and sought to do something about it, that he has not pursued such avenues and has continued, noting of course that he refers to abusing cannabis on a daily basis for approximately 15 years. Whatever efforts he has made to abstain in relation to any other prohibited drug that is of serious concern to the Court.
While in custody he has been attending what is referred to as the Alternative Sanction Program conducted by Offender Services and Programs of Corrective Services. This appears to be a pilot program consisting of a number of separate programs referred to as the RUSH program, Remand Addictions, Narcotics Anonymous and Crystal Methamphetamine Anonymous.
A report of 31 March 2020 indicated he started the program on 2 March and has attended at least a number of programs up to that date in relation to several modules of RUSH, Remand Addictions and Narcotics Anonymous. He is described as having insight into his criminal offending and an awareness of how those behaviours impact on his life and family, and having shown motivation toward positive changes. He is said to have not displayed any disrespectful behaviour towards staff or other participants, and there have been nil reasons for concern in that regard.
There is no evidence that he has continued with that program, but it is now only 8 April and I will presume that he has in fact continued to attend the program. There is no indication as to how long it takes, however I take it as a sign that there is some hope that the offender can be rehabilitated, noting of course Dr Nielssen's prognostication that if he is able to remain drug free he would have good prospects of rehabilitation.
Dr Nielssen also relied in part on the support from his wife, but I note they have been together for a significant period of time now and what support she has provided in the past has not been sufficient to deter him. I find it difficult to understand that she would not have been aware that he has been smoking marijuana for a 15 year period on a daily basis. She was clearly aware that he was using, as she refers to it in her statement, methylamphetamine at least for the period from the home invasion until his arrest.
However, I also note that it is constantly the fact before this Court that those who have problems with the abuse of prohibited drugs, even when they have strong desires to cease such use and make some endeavour to do so, frequently fall off the rails in the process of trying to do so. That is, of course, a matter that is very relevant to the question of special circumstances. It has not been argued on sentence that the offender's use of prohibited drugs were in any way causative in relation to the commission of these offences.
Mr Boulten SC, on behalf of the offender, has argued that because of his state of anxiety, serving a term of imprisonment will be harder for him than for an ordinary or average prisoner. I have difficulty in understanding the basis of that submission. Almost every offender who comes before the Court comes before the Court with at least a psychological report indicating they are suffering from anxiety and depression. So that in my view the average prisoner must also suffer significantly from anxiety and depression. It is, however, no doubt a matter to be taken into account in relation to the determination of the sentence that he suffers from anxiety and depression.
Having entered a plea of guilty at the earliest opportunity, he is entitled to a 25% discount in relation to the sentence in respect of each of the offences as referred to in Thomson and Houlton (2000) 49 NSWLR 383.
I accept that he was not in possession of the prohibited pistol for the purpose of some criminal offending. As indicated I have accepted that he was motivated to possess it because of the home invasion and his perception that he needed a weapon to protect both himself and his family. I have taken into account that that has an ameliorating effect on the objective seriousness of the offence, as well as his moral culpability.
I find that the offender is genuinely remorseful and contrite.
His past criminal history is not in my view one that can have a significant impact in relation to the sentence to be imposed; it is more part of the general background.
I have taken all of those matters into account and I have taken into account, of course, the purposes of sentencing as referred to in s 3A of the Crimes (Sentencing Procedure) Act. I have also reviewed the statistics. As generally unhelpful as they are, they are of some assistance. It has been accepted by Mr Boulten SC, on behalf of the offender, that the s 5 threshold has been passed and that there is no alternative other than a sentence of full time imprisonment, although Mr Boulten has submitted that a sentence of moderation could be imposed.
I have also, of course, had regard to the maximum provided in respect of the individual offences and also, in respect of the possess prohibited pistol charge, the standard non-parole period as a guideline.
I intend to proceed by way of an aggregate sentence and in those circumstances I am required to express an indicative sentence in relation to each of the offences. First of all, Mr Phan, you are convicted in respect of each of the three offences before the Court for sentence. OFFENDER: Yes, your Honour.
HIS HONOUR: The indicative sentence in relation to the offence of possess unregistered firearm, for greater transparency I will indicate that in the absence of the plea of guilty the sentence would have been two years. I have reduced that by 25% to give it an indicative sentence of 18 months.
In relation to the offence of possess loaded firearm in a public place, the starting point was four years, having applied a 25% discount to that. The indicative sentence is three years.
In relation to the offence of possess prohibited pistol, also taking into account each of the two offences contained on the Form 1, the starting point is a sentence of four years eight months, having applied 25% to that starting point. The indicative sentence is one of three years and six months. I find special circumstances and in those circumstances I will indicate that the indicative non-parole period is 50% of that period, that is, a period of 21 months.
That then leaves the aggregate sentence. The aggregate sentence is a non-parole period of two years, with a balance of term of two years on the basis that the statutory relationship between the non parole period and the parole period has been varied in the offender's favour by reducing the statutory relationship by one-third, so that the non parole period will represent 50% of the total term.
The term of the sentence is four years with a non-parole period of two years, commencing on 3 July 2019. The offender will be first eligible for parole on 2 July 2021. The balance of term is two years and the full term will expire on 2 July 2023.
Mr Phan, you should understand that your release on or about 2 July 2021 at the conclusion of the non-parole period will be dependent on what the authorities make of your progress while in custody. OFFENDER: Yes, your Honour.
HIS HONOUR: You have started relevant programs and you would be well advised to continue those programs to completion, and take advantage of any other program while in custody to deal with your difficulty with prohibited drugs. OFFENDER: Yes, your Honour.
HIS HONOUR: In terms of prospects of rehabilitation and reoffending I think there is a reasonable possibility of your being rehabilitated, but only if you get on top of the abuse of prohibited drugs. I think there is a low prospect of you reoffending in the same manner that you have on this occasion. You are, however, very much at risk of reoffending in relation to prohibited drugs because you have clearly not yet managed to curb your urges in that direction. OFFENDER: Yes, your Honour. HIS HONOUR: All right. Is there anything of significance that I have missed, Mr Boulten or Madam Crown? MCKENZIE: No, your Honour. BOULTEN: No, your Honour. HIS HONOUR: All right, thank you. MCKENZIE: Your Honour, just one matter however, I don't know if the Court requires it still, but the destruction of a firearm.
HIS HONOUR: Yes, well if it's necessary to make an order to destroy the firearm I'll happily make such an order. MCKENZIE: Thank you, your Honour. HIS HONOUR: Thank you. Just go off screen and we'll adjourn.

R v Phan

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Judgment (7 paragraphs)

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Cases Cited (4)