R v Van Hong Pham

Crimes Act 1900 - s 310D(a) Crimes (Administration of Sentences) Act 1999 - s 174(1)(a) , 254 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - s 47, 50(1), 57(2), 57(3) Criminal Procedure Act 1986 - s 102 Sentencing Act 1989

Dinsdale v The Queen (2000) 202 CLR 321 House v The King (1936) 55 CLR 499 Lowndes v The Queen (1999) 195 CLR 665 R v A [2004] NSWCCA 292 R v Butler [2000] NSWCCA 525 R v Dickson (2002) 132 A Crim R 137 R v Jap NSWCCA 20 July 1998 R v Kain [2004] NSWCCA 143 R v Latumetan and Murwanto [2003] NSWCCA 70 CASES CITED: R v Mathieson [2002] NSWCCA 97 R v Pham [1999] NSWCCA 225 R v Plummer [2000] NSWCCA 363 R v Josef Regina [2000] NSWCCA 100 R v Smith [2004] NSWCCA 69 R v Tait (1979) 46 FLR 386 R v Thomson NSWCCA 21 May 1986 Regina v Wall [2002] NSWCCA 42 Shrestha v The Queen (1991) 173 CLR 48

J Girdham (Crown) COUNSEL: P Strickland (Respondent)

• 1 - IN THE COURT OF CRIMINAL APPEAL 2004/3008

WOOD CJ at CL HISLOP J JOHNSON J

Tuesday 22 March 2005 Regina v Van Hong Pham Judgment 1 WOOD CJ at CL: This is an appeal by the Director of Public Prosecutions against the sentence imposed by his Honour Judge JX Gibson QC, following the Respondent's plea of guilty to one count of escaping lawful custody, an offence for which a maximum penalty of imprisonment for 10 years is prescribed (Crimes Act 1900 s 310D(a)). 2 The sentence which was imposed on 22 October 2004 was one of imprisonment for 18 months commencing on 15 June 2004, and expiring on 14 December 2005, with a non-parole period of 12 months, also commencing on 15 June 2004. The Crown appeal is based upon the practical effect of that sentence when considered in the light of the Respondent's existing custodial position, arising by reason of his prior criminality.

Facts 3 On 13 February 1998, the Respondent was sentenced in the Sydney District Court to imprisonment for a minimum term of 3 years to date from 17 April 1997, with an additional term of 2 years and 6 months for an offence of armed robbery with wounding. The minimum term (non-parole) period was set to expire on 16 April 2000. The additional term was due to expire on 16 October 2002. An appeal against the sentence was dismissed by the Court of Criminal Appeal (R v Pham [1999] NSWCCA 225). 4 The Respondent was released to parole on 16 April 2000, but fell into breach about 2 months later after indicating to his parole officer that he was going into hiding in order to avoid deportation. This resulted in the formal revocation of his parole on 11 July 2000 with effect from 20 June 2000. He was at large until 26 February 2003, at which time he was arrested on charges of goods in custody and shoplifting. On 26 February 2003 he was sentenced, in respect of those charges, to a fixed term of imprisonment for one month, to commence from that day, and to expire on 25 March 2003. 5 On 7 May 2003, 43 days after the expiry of the fixed term of one month, while serving the balance of parole for the armed robbery offence, the Respondent escaped from custody when attending the Auburn District Hospital for treatment. He then remained at liberty for approximately 9 months until he was apprehended in Victoria and charged with one offence of theft and one offence of go equipped to steal or cheat. 6 For these offences he was sentenced in Victoria on 15 March 2004 to an aggregate term of 4 months imprisonment, of which one month of time in custody was reckoned as a period of imprisonment already served. 7 He was extradited to NSW on 15 June 2004, that is, at the expiration of the Victorian sentences. 8 Pursuant to s 254 of the Crimes (Administration of Sentences) Act 1999 the unexpired parole period referable to the sentence for the 1997 armed robbery with wounding offence was extended by the Parole Board until 27 July 2005, to take into account the period of 405 days during which he had been at large in Victoria, or held in custody in that state. 9 The effect of the sentence imposed by his Honour for the escape, being one involving imprisonment for less than 3 years, is that, by reason of s 50(1) of the Crimes (Sentencing Procedure) Act 1999, the Respondent is due to be released for that offence on 14 June 2005, that is, 13 days before expiry of the balance of parole for the earlier armed robbery offence. Thereafter he would be subject to supervision on parole for approximately 5 ½ months between 14 June 2005 and 14 December 2005, and to the possibility of having that parole revoked if he re-offends or fails to comply with any relevant condition of parole.

1. Deportation 10 The Crown first relies upon a submission that the exchanges between the bench and counsel, during the submissions on sentence, show that despite an observation by the Crown that the issue of deportation could not be taken into account when determining the length of the sentence, his Honour inappropriately factored, into the sentencing decision, his expectation that the Respondent would be deported as soon as the custodial portion of any sentence, which he imposed, was served. 11 This is not expressly stated in the exceedingly succinct reasons for sentence, and normally this Court will not find an error of principle from interchanges between the bench and counsel that indicate an apparent incorrect appreciation of the law, since those views do not necessarily reflect a considered decision: R v Kain [2004] NSWCCA 143 at [56] and R v A [2004] NSWCCA 292 at [12]. 12 The possibility that his Honour did take the factor of deportation into account, when fixing the sentence, is perhaps suggested by the concluding observation of his Honour concerning the non-parole period that was passed in so far as he noted, "that the Respondent was going to be deported", but is not otherwise evident. 13 It is established principle that the fact of deportation is irrelevant as a sentencing consideration, it being a matter exclusively for the Executive Government: R v Jap NSWCCA 20 July 1998 and R v Latumetan and Murwanto [2003] NSWCCA 70. Moreover the High Court has held that a foreign national should receive the benefit of being eligible for release on parole: Shrestha v The Queen (1991) 173 CLR 48 at 71 per Deane, Dawson and Toohey JJ. 14 The fact that the Respondent would be or might be deported to Vietnam, was accordingly an immaterial factor in structuring a sentence in this case and error would be demonstrated if it could be established that it became a factor in determining any aspect of the sentence including the selection of an appropriate commencement date. I am not however persuaded, particularly in circumstances where a period for potential release on parole was fixed, that his Honour erred in this respect.

2. Manifest Inadequacy 15 The Crown conceded that a sentence of 18 months imprisonment, with a non-parole period of 12 months, for the Respondent's escape was properly within range, and no complaint was made in that respect. Its submission as to the inadequacy of the sentence depends exclusively upon the practical effect of the backdating of the sentence to 15 June 2004, a date which his Honour selected upon the basis that the Respondent should have the benefit of the time which he had spent in custody in New South Wales, following his extradition. 16 The offence of escape has been regarded by the courts as a serious offence, which potentially jeopardises the future of minimum security facilities and threatens the continued provision to prisoners of beneficial and humanitarian custodial arrangements and opportunities. It may lead to additional restrictions being placed upon their access to external medical treatment, and it may also impede the progress of rehabilitation for offenders with favourable prospects, if conditions of detention are strengthened, in order to prevent escapes. 17 These considerations were noted, for example, in R v Thomson NSWCCA 21 May 1986 where, in a case decided before enactment of the Sentencing Act 1989, Street CJ observed that the ordinary sentence for an unremarkable escape "could be expected to approximate two years" (at a time when the maximum penalty for the offence was imprisonment for 7 years); and also in R v Mathieson [2002] NSWCCA 97 at [27]. 18 Where the offender has remained at large for a very lengthy period or has used the opportunity of being at large to commit further offences, as was the case here, then the overall objective seriousness of his criminality is potentially increased: R v Plummer [2000] NSWCCA 363 at [34] and R v Josef Regina [2000] NSWCCA 100. The elements of both personal and general deterrence are also important, it being essential that prisoners understand that any offence of escape or attempted escape will result in a meaningful overall increase in their detention: R v Butler [2000] NSWCCA 525 at [18] and R v Smith [2004] NSWCCA 69. That this is so is also demonstrated by the fact that the maximum penalty prescribed for the offence has been increased from imprisonment for 7 years to imprisonment for 10 years. 19 It is also for that reason that the legislature enacted, by way of s 57(2) of the Crimes (Sentencing Procedure) Act 1999, a requirement for sentences for escape to be served consecutively upon any existing sentence that has yet to expire, or upon any other sentence that is imposed in the same proceedings. 20 The present case is complicated by the fact that s 57(3) of the Act provides that the reference to a sentence of imprisonment in ss (2) upon which the escape sentence is to be served consecutively, is taken to be a reference to: (a) the non-parole period of the sentence, in the case of a sentence for which a non-parole period has been set, or (b) the term of the sentence, in the case of a sentence for which a non-parole period has not been set. 21 It is further complicated by the fact that s 47 of the Act provides: 47 Commencement of sentence (1) A sentence of imprisonment commences: (a) subject … to any direction under subsection (2), on the day on which the sentence is imposed, … … (2) A court may direct that a sentence of imprisonment: (a) is taken to have commenced on a day occurring before the day on which the sentence is imposed, or (b) commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment. … (4) The day specified in a direction under subsection (2) (b) must not be later than the day following the earliest day on which it appears (on the basis of the information currently available to the court) that the offender: (a) will become entitled to be released from custody, or (b) will become eligible to be released on parole, having regard to any other sentence of imprisonment to which the offender is subject. (5) A direction under subsection (2) (b) may not be made in relation to a sentence of imprisonment imposed on an offender who is serving some other sentence of imprisonment by way of full-time detention if: (a) a non-parole period has been set for that other sentence, and (b) the non-parole period for that other sentence has expired, and (c) the offender is still in custody under that other sentence 22 There are two distinct purposes apparent from these provisions: the first is to ensure that the offence of escape attracts an actual and meaningful accumulation of sentence; the second is to avoid the existence of a possible hiatus in custody which would arise if the offender was later released to parole for the existing sentence, before the date fixed for commencement of the fresh sentence. 23 The question which arises is whether these provisions required, or alternatively permitted, his Honour to commence the sentence from:

(a) the date on which the Respondent was first released to parole for the armed robbery with wounding offence, that is, 16 April 2000;

(b) the expiry of the balance of his parole for the armed robbery offence, recalculated to take into account the 405 days during which he was either at large, or in custody in Victoria, before his return to New South Wales, that is, 27 July 2005.

(c) the date of his return to custody in NSW, that is 15 June 2004;

(d) the date on which sentence was pronounced, that is, 22 October 2004, or

(e) some other date. 24 Had the sentence for the escape been directed to be served consecutively to the non-parole period for the armed robbery, then the full term of that sentence would have commenced on 16 April 2000 and expired on 15 October 2001, yet for almost the whole of that period, the Respondent would have been at large. To have allowed for that circumstance, by artificially enlarging the term of the sentence beyond that which, it is conceded, was properly within range for an offence of escape, would have infringed basic sentencing principles. 25 On the other hand, if his Honour had fixed the commencement date of the sentence for escape as the date of the expiry of the recalculated balance of parole for the armed robbery, namely 27 July 2005, that would have infringed against s 47, and possibly resulted in a hiatus between the custodial components of the original and new sentences. 26 That arises from the circumstance that, as a Prisoner serving the balance of parole for the armed robbery, it was always open for the Respondent to apply to the Parole Board for a review under s 174(1)(a) of the Crimes (Administration of Sentences) Act. The Parole Board, upon such a review, could have rescinded its original revocation order, at any time from 16 June onwards, and readmitted the Respondent to parole. 27 Although the revocation order had not been rescinded by the time that sentence was passed, if that was to occur at any later time prior to 27 July 2005, then there would potentially have been a hiatus of the kind which is not permitted by s 47. 28 It is evident that s 57 of the Act did not contemplate a case such as the present, being one in which the offender having been earlier released to parole, escaped at a time when, by reason of a breach of his parole, he was back in custody serving the balance of parole. 29 The present case, not being one where the escape occurred during the currency of a non-parole period, or during a term in respect of which there was no relevant non-parole period, I am of the view that s 57 of the Act did not apply, or dictate the selection of the commencement date. Rather, it seems to me that the discretion as to the selection of a commencement date was properly to be decided by reference to s 47, which permitted the sentence to be fixed to commence at the date on which it was passed, or backdated, but which did not allow its commencement to be postponed. Counsel for the Respondent and the Crown appear to have conceded as much, since neither submitted that the commencement date was required by force of law, to be either 16 April 2000, or 27 July 2005. 30 The question which then arises is whether in exercising his discretion to commence the sentence from 15 June 2004, his Honour erred. In substance this gives rise to the question whether the effect of the backdating to 15 June 2004 resulted in a sentence that was manifestly inadequate. 31 That is a question which needs to be determined in the light of the principles, including the discretion reserved for Crown appeals, which were discussed in House v The King (1936) 55 CLR 499, Lowndes v The Queen (1999) 195 CLR 665 at 671-2, Dinsdale v The Queen (2000) 202 CLR 321, and in Regina v Wall [2002] NSWCCA 42 at [70]. 32 The Crown has submitted that there was appellable error in this respect, and that the sentence that was warranted in law was one that would have commenced upon the date that the sentence was passed, namely 22 October 2004, although it later accepted that it would also have been open to his Honour to have selected 8 October 2004, in lieu of the first mentioned date. 33 This submission needs to be considered in the light of the Respondent's submissions that:

(a) any interference with the sentencing order would offend against the principle referred to in R v Tait (1979) 46 FLR 386, having regard to the position which the Crown took during the sentencing proceedings;

(b) any variation of the commencement date would work an unfairness to the Respondent, who had pleaded guilty from the outset, and who was not responsible for the delay between his plea and the final determination of the sentencing proceedings on 22 October 2004, and that;

(c) in the absence of any statutory constraint upon his Honour (beyond that contained in s 47), the Crown faced a special difficulty in demonstrating appellable error in what amounted to a discretionary exercise of judgment. 34 The final proposition may be accepted, but it does not provide any answer to the present appeal, if the result of the sentencing order was one that did not properly reflect the sentencing considerations that are applicable to offences of escape, or was one that resulted in a sentence that was appellably inadequate. 35 These submissions call for an examination of the course of the proceedings on sentence. It appears that the Respondent was committed for sentence under s 102 Criminal Procedure Act 1986 on 12 August 2004, followed by a first listing for mention in the District Court on 20 August 2004. The matter was called up for sentence on 30 September 2004, but stood over to 8 October because of the Respondent's need for an interpreter. 36 On 8 October there was some debate as to the effect of the legislative provisions which I have earlier mentioned in relation to the commencement date, but the proceedings could not be concluded that afternoon, and were then stood over to 22 October. On that day the Crown conceded that it would be incorrect in law for the sentence to commence on 27 July 2005, and observed: "In terms of whether your Honour backdates any sentence to take into account time spent in custody, that's an issue for your Honour",

although also making it clear that, "it's still open to your Honour, in our view, to commence the sentence from today." 37 While it was submitted that this amounted to a concession that it was open to his Honour, in the circumstances of the case to backdate the sentence, that involves, in my view, something of an overstatement. All that the Crown was doing was outlining to his Honour what it was that he had a power and a discretion to do. These observations and the position now taken by the Crown do not fall within the kind of case which was considered in R v Tait. 38 Secondly, I am unpersuaded that any unfairness would arise by reason of the period which passed between the date of committal and the date of listing for sentence in the District Court. This was not a matter which was urged upon his Honour, nor was it taken into account by him in exercising his sentencing discretion. In my view this was not a case involving any unreasonable delay, having regard to the work load of the court, let alone where any responsibility for that delay could be sheeted home to the Crown. 39 While it might have been possible for the sentencing proceedings to have been resolved earlier, with the consequence that the commencement date for the sentence would have been brought forward, the fact is that this did not occur. Nor was the parole revocation order rescinded in the meantime. 40 Where his Honour fell into error, it seems to me, was in not crafting a sentencing order that took into account the fact that the parole revocation order had not been rescinded at the time that sentence was passed, and that adequately punished the Respondent for his serious offence of escape. 41 While it was submitted that the seriousness of that offence was mitigated by the escape having been a spur of the moment decision, which was motivated by the respondent's concerns as to the health of his wife, I am unable to agree with that proposition. To the contrary the escape was one which involved a violation of the trust that was implicit in allowing the Respondent the opportunity of an external hospital attendance. The Respondent remained at large for a lengthy period, without any attempt to turn himself in, and he re-offended while at large. 42 In these circumstances I have reached the conclusion that the back dating of the sentence to 15 June 2004 resulted in a sentence that was manifestly inadequate. That was, in my view, an error in circumstances where the Respondent should have been required to serve a significant additional period of time in custody by reason of his earlier serious breach of parole, and his subsequent escape. 43 In my assessment, the sentence which was warranted in law and which should have been passed was the same as that passed by his Honour, subject however to a variation of the commencement date from 15 June 2004 to 8 October 2004. While it would have been entirely appropriate for the commencement date to have been 22 October, the Crown concession as to its commencement on 8 October, having regard to the court's inability to complete the proceedings that day, would justify the selection of the last mentioned date. That would result in the Respondent being taken to have been serving an additional period in custody of approximately 5 and a half months as a result of his breach of parole, and receiving a sentence involving a non-parole period of 12 months for the offence of escape with a balance of parole of 6 months. 44 I would accordingly propose the following orders:

2. Quash the sentence below, and in lieu sentence the Respondent to imprisonment for 18 months, with a non-parole period of 12 months, each to date from 8 October 2004.

3. Direct the Respondent's release on parole on 7 October 2005. 45 Finally, I observe that some of the potential problems with the application of s 57 were noted in R v Dickson (2002) 132 A Crim R 137, although without any resolution of assistance for the present case. The failure of the section to deal with a case such as the present requires legislative reconsideration, in order to address the difficulties identified in this case, as well as in the earlier decision mentioned. 46 HISLOP J: I agree with Wood CJ at CL. 47 JOHNSON J: I agree with Wood CJ at CL. **********

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.