REGINA v. PHAM [2005] NSWCCA 314

REGINA v. PHAM [2005] NSWCCA 314 - NSWCCA 2005 case summary — Zoe

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The facts 7 On Monday 3 May 2004, the applicant arrived at Sydney Kingsford Smith Airport aboard a Thai Airlines flight from Bangkok. He was subjected to a frisk search conducted by Australian Customs Service Officers. The importation related to 244.6 grams pure of heroin valued at a wholesale value of $120,000 and a street value of between $611,500 and $856,100 which, as the sentencing judge observed, was 122 times the traffickable quantity of heroin (two grams). 8 The applicant made full admissions that he had imported the heroin after buying it in Bangkok and that his intention was to sell the heroin upon arrival in Australia. However, several of the answers given during the interview, he claimed in evidence before the District Court, were false. He claimed that he had given false information because he was scared and concerned that if he were to reveal the identity of persons with whom he dealt, there would be serious personal repercussions to himself. In the pre-sentence report dated 19 August 2004, he is recorded as saying that, upon returning to Australia, he would be contacted by "someone" who would collect the drugs from him. 9 In recorded interviews, he stated that he was acting alone and had raised US$6,000 to buy the heroin but he stated in evidence that this, in fact, had not been the case. He stated that he had agreed to carry the drugs into Australia because he needed the money to pay for legal representation in relation to another matter. He said that he was to be paid AUD$5,000 for the importation. 10 The applicant's criminal history noted convictions from 1994 (as a child) and continuing until 2004 (including a drug offence, driving offences and stealing motor vehicles). 11 At the sentence hearing, the pre-sentence report from the Probation and Parole Service was tendered. In it is recorded the applicant's regret and stated that he felt "ashamed of his behaviour". He expressed both his regret and shame in terms of the hurt that he had occasioned to his family. 12 The available evidence indicates that the applicant had a supportive family, notwithstanding his rebellious and subsequent unlawful behaviour during his teenage years and thereafter. 13 In 1996, a significant event occurred involving the applicant. In that year, he was involved in a motor vehicle accident when he was the driver of a stolen vehicle. The collision resulted in the death of a passenger who had shared a close friendship with the applicant. On 30 May 1997, a nine month sentence was imposed by Fairfield Local Court in relation to the accident. He was released on parole on 20 February 1998. 14 The applicant was born in Vietnam, the second of three children. His father and family travelled to Australia in 1987 after spending approximately two years in a refugee camp in Indonesia. In Australia, the family spent some two months in Villawood Detention Centre. The applicant was aged eight years upon his arrival in Australia. 15 He prematurely ceased secondary schooling Year 11, having been sentenced to imprisonment in respect of the 1996 motor vehicle accident. Upon completion of his custodial sentence he undertook a post-secondary studies course at TAFE, completing an IT certificate course of some six months duration in 1998. He undertook an advanced IT certificate six months course in 1999. 16 There is no history of substance abuse. 17 At the sentence hearing, the report of Ms. Kerry Watson, forensic psychologist, dated 18 August 2004 was tendered. I will refer to the report later in this judgment.

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Ground 1: adopting a "two-stage" approach to sentencing 18 It is not in dispute that the sentencing judge adopted a two-stage approach to sentencing contrary to the principle enunciated in Regina v. Wong & Leung (2001) 207 CLR 584 per Gaudron, Gummow and Hayne, JJ. at [74] to [76]. There, the High Court criticised an approach to sentencing which involved a mathematical approach involving increments to or decrements from a pre-determined range of sentencing, stating:- "… that kind of approach, usually referred to as a 'two-stage' approach to sentencing, not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted." 19 Gaudron, Gummow and Hayne, JJ. elaborated on the point by stating that such an approach departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong:- "… we say 'may be' is quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. This is what is meant by saying that the task is to arrive at an 'instinctive synthesis' …" (at [75]) 20 The submission on behalf of the applicant is that the sentencing judge erred in coming to a decision as to the appropriate sentence she would have imposed and then determining the discount that she would apply stating in the remarks on sentence, at p.4:- "I have taken into account the plea of guilty which was entered at a very early stage. I have reduced the otherwise appropriate sentence by 25% to reflect the offender's remorse, acceptance of responsibility and a willingness to facilitate the course of justice." 21 The applicant's additional submission is that it is not clear to what extent the sentencing judge took into account all the factors required by the provisions of s.16A of the Crimes Act 1912 (Cth) in arriving at the "otherwise appropriate sentence". 22 In its written submissions, the Crown stated that it did not dispute the matters set out in paragraphs 7 and 8 of the applicant's outline of written submissions. However, in conceding an error of principle in this respect, the Crown submits that it does not concede that it automatically follows that the court will interfere in the sentence imposed. It contends that in all of the circumstances of the case, both objective and subjective, a lesser sentence should not be imposed: Regina v. Dodd (1991) 57 A. Crim. R. 349 at 354. The Crown also relies in this respect upon the submissions it has made in respect of Ground 3 of the grounds of appeal. 23 The significance or implications of the error in approach of the sentencing judge is a matter dealt with later in this judgment in relating to Ground 3 (the sentence imposed was manifestly excessive). I will accordingly return to Ground 1 at a later point in this judgment

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Ground 2: The sentencing judge erred in dealing with the applicant's mental condition 24 The evidence relied upon by the applicant is the report of Ms. Kerry Watson (Exhibit 1). The author of that report was not cross-examined at the sentencing hearing. The factual material relied upon by Ms. Watson is based upon the applicant's own account given to her. 25 It is reasonable to accept that the motor vehicle accident in which the applicant was the driver and a friend of his was killed was a traumatic event which had ongoing effects upon him. The extent to which those impaired his capacity to reason and cope with the stresses of life is more problematical. It is sufficient here, without detailing all of the conclusions expressed by Ms. Watson, to say that, based on a clinical assessment on one occasion, the psychologist concluded that the applicant had suffered serious psychological harm including impairment of his emotional functioning and that this contributed to progressive behavioural and emotional difficulties. In particular, what is described as the applicant's maladaptive behaviour and criminal involvement was said to be a manifestation of the long-term emotional consequence of unresolved emotional turmoil and reactive trauma related symptomatology. Ms. Watson expressed the view that the applicant exhibited symptoms which were consistent with a post-traumatic stress disorder which manifested itself in a wide range of symptoms which are detailed in the report. 26 The submission in support of Ground 2 is essentially that the sentencing judge considered that the psychological report was only of "limited assistance". The contention is that there was no obvious reason why the matters contained in the report ought to be rejected and yet no findings were made by the sentencing judge one way or the other as to the applicant's mental condition or specific matters contained in the report. This, it is said, is so, notwithstanding the fact that the sentencing judge expressed the view that the applicant would clearly benefit from some counselling whilst in custody. The submission on behalf of the applicant is essentially that the sentencing judge must have accepted the contents and the findings of the report. 27 Even accepting the submissions in relation to Ground 2 thus far, the critical question remains whether or not the evidence in fact established that the applicant suffered from a recognised mental or psychological condition which, as submitted, rendered him an inappropriate vehicle for general deterrence. Reliance was placed by the decision of this Court in Regina v. Hemsley [2004] NSWCCA 228 at [33] to [36]. 28 In relation to this ground of appeal, the following points are noted:-

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• There is no indication in the remarks on sentence as to whether or not the sentencing judge accepted or did not accept Ms. Watson's analysis or conclusions in determining sentence or, if they were accepted, whether some weight was considered appropriate in the circumstances. 29 In the Crown submissions, it is contended that certain of the matters contained in Ms. Watson's reports were inconsistent with other evidence in the proceedings and that it must be borne in mind that the applicant was not accepted in relation to his sworn evidence in certain respects and that the sentencing judge found that "the offender is now trying to minimise his role" (ROS p.2). 30 I do not consider that the matters of detail contained in Ms. Watson's report are to be so readily dismissed, although it is necessary to take into account that the sentencing judge was unable to determine where the truth lay concerning the circumstances in which the applicant travelled overseas, given that he had lied to police on certain matters. 31 A difficulty in relation to this matter is that whilst the sentencing judge did have regard to certain matters referred to in the Ms. Watson's reports and made reference to the psychological consequences arising from the death of the applicant's close friend, there is no finding or conclusion expressed as to whether and the extent to which those psychological effects impaired the applicant's capacity, in particular, his judgment in agreeing to enter into the illegal activity which constituted the offence. It will shortly be necessary to review Ms. Watson's opinion on that matter. 32 In Hemsley (supra), Sperling, J. (at [26]) stated that there was no obvious reason in that case for rejecting the history given to the psychologist, given that no objection to the tender of the report had been made and nor had any application been made to limit the use of the report. Further, there was no obvious reason for rejecting the psychologist's diagnosis concerning the applicant's mental state or his opinion concerning the significance of it in relation to the offence, in the absence of any challenge to the opinion that respect. Similarly, in the present matter, Ms. Watson stated:- "Accordingly, Mr. Pham's history of maladaptive behaviour and criminal involvement is seemingly a manifestation of the long-term emotional consequence of unresolved emotional turmoil and reactive trauma related Symptomatology. The protracted nature of Mr. Pham's distressed psychological functioning indicates a necessity of an integrated approach to treatment in order to help him cultivate more adaptive coping/defensive patterns, and subsequently live a more functional life." (p.6) (emphasis added) 33 Accordingly, on the state of the evidence, and in the absence of challenge, some weight had to be given to this expression of opinion, given its terms and given that there was no obvious reason for rejecting the significant elements of history relied upon by Ms. Watson and no obvious reasons for rejecting her diagnosis or conclusion. 34 The second ground of attack, in essence, a failure by the sentencing judge to take into account the mental condition of the applicant pursuant to s.16A(2)(m) is made out. However, in the nature of sentencing, that conclusion does not necessarily lead to the result that this Court must intervene. It is necessary to determine the significance of the failure to take that matter into account in determining the sentence to be passed. 35 The failure to take into account an offender's mental condition as a mitigating factor may arise in one or more of three ways:-

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