Director of Public Prosecutions v Pham
[2010] VSCA 181
•19 July 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| v | |
| HO KIEM PHAM | S APCR 2010 0066 |
| TOAN PHAM | S APCR 2010 0067 |
| DANG QUACH | S APCR 2010 0068 |
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JUDGES: | BUCHANAN, ASHLEY JJA and BEACH AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 July 2010 | |
DATE OF JUDGMENT: | 19 July 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 181 | |
JUDGMENT APPEALED FROM: | Unreported County Court of Victoria, Judge Hannan, 18 February 2010 | |
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CRIMINAL LAW – Crown appeal – Aggravated burglary and recklessly causing serious injury – Home invasion by three men – Offenders believed that the householder had raped a relative – Powerful plea material – Total effective sentences of 32 months wholly suspended for three years not manifestly inadequate.
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| APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr B L Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
For the First Respondent | Mr M J Croucher | Borchard and Moore |
For the Second Respondent | Mr O P Holdenson QC with Mr S P Zebrowski | Balmer & Assocs Pty |
For the Third Respondent | Mr D A Dann with Ms J Fallar | Chris McLennan & Co |
BUCHANAN JA:
Kiem Pham is the brother of Toan Pham and the brother-in-law of Dang Quach. Kiem Pham’s wife told him that his sister, whom the respondent later told police was ‘a bit slow’ had been sexually assaulted by Huy Du. Kiem Pham told the other respondents and at about nine o’clock at night all three went to the house in which the victim resided. Huy Du was in the house with his eight year old daughter. They were in the sitting room. Du was watching television and his daughter was doing her homework when the power went out.
Du got a torch and went to the front door. Through the security door he could see one of the respondents standing at the door with the other two behind him. The victim retreated to the sitting room and armed himself with a black collapsible baton. He told his daughter to ring the police. Pot plants were thrown through the sitting room windows. The respondents invaded the house, although the victim tried to prevent them by hitting their legs with the baton.
The victim was pushed onto a sofa. One of the offenders sat on him and put his hands round his throat and started choking him. Another of the offenders put his hand down Du’s pants and took hold of his penis and said they were going to ‘cut it off’. Another offender pulled at Du’s legs. The victim was punched to the face several times. The baton was taken from him and he was struck a hard blow to the head. Du’s daughter tried to ring the police using his mobile telephone. Kiem Pham took the phone and put it in a bowl of water.
Police attended the scene. The victim was transported by ambulance to hospital. His injuries included bruising to the left eye, bleeding from the nose, a laceration to his middle finger, a comminuted fracture of the right ring finger, a fracture of the parietal bone on the right side of his skull, a fractured sinus on both sides of his face and a facture to the orbital wall of his left eye socket. Du remained in hospital for two days. Later a metal plate screw was inserted into his finger. He suffered double vision and ultimately underwent surgery to repair the floor of the orbital wall of his eye.
The respondents were arraigned in the Count Court and pleaded guilty to a presentment containing a count of aggravated burglary and a count of recklessly causing serious injury. After a plea, each respondent was sentenced to be imprisoned for a term of 24 months on each count. It was ordered that eight months of the sentence on the count of recklessly causing serious injury were to be served cumulatively upon the sentence on the count of aggravated burglary. The total effective sentence in each case was 32 months. The sentencing judge ordered that each sentence be wholly suspended for a period of three years.
The Director has appealed against the sentences. The first ground of appeal in each case is that the individual sentences and the total effective sentence are manifestly inadequate and the order to wholly suspend the sentences resulted in a manifestly inadequate sentence. In particulars of that ground the Director has alleged that the sentencing judge failed to have sufficient regard to the gravity of the offences and relevant sentencing considerations such as general deterrence and denunciation and the features of the offending alleged to be aggravating, and gave too much weight to mitigating factors.
The second ground of each appeal is that the lack of sufficient cumulation in respect of count 2 constituted an error in that the total effective sentence failed to reflect the totality of the offending conduct.
Ho Kiem Pham is now 38 years’ old. He arrived in Australia as a refugee when he was ten years’ old, after spending two years in a refugee camp in Thailand. He was the eldest son in his family and took responsibility for them. The sister, who it was alleged was sexually assaulted by Du, was intellectually handicapped. The respondent is a hairdresser and operates his own salon. He is married with three small children. A psychologist attested to the respondent’s remorse, as did an Evangelical Church minister, who had known the respondent for many years.
Toan Pham is now aged 31 years. He was born in Vietnam and came to Australia at the age of 12 years. He left school in year ten and returned to Vietnam to visit his mother and other relatives. The poverty in which they were living affected him and he determined to leave school to try and find work to help them. He returned to Australia and obtained employment in a succession of factories. He sent money to Vietnam on a regular basis to support his family. The respondent married in 2006 and has an infant daughter. The respondent’s wife is the daughter of the minister of the Vietnamese Evangelical Church in which the respondent is an active member. He studies at the Churches of Christ Theological College.
Dang Quach is 32 years’ old. He came to Australia with a brother in 1983 at the age of 15 years after spending two years in a refugee camp. He completed secondary school education and two years of a degree in computer science at Monash University. His parents and siblings joined him in Australia and apparently agreed that the respondent would find work to allow them to continue with various studies. The respondent worked as a factory hand and then established his own trucking business. His brothers used the opportunity provided by the respondent. One brother became a lawyer, another a doctor. The respondent is married and has four children aged between 16 and four years. In the course of the plea a report by a psychologist was tendered. The psychologist was of the opinion that the respondent was extremely remorseful and was highly unlikely to commit a like offence in the future.
None of the respondents has any prior convictions and a number of persons gave evidence or provided references testifying to their industry, community work and general good character.
The potential gravity of the offences of aggravated burglary and recklessly causing serious injury is illustrated by the maximum sentences of 25 and 15 years’ imprisonment stipulated by parliament. Generally speaking, an invasion of a dwelling house by three men and the infliction of serious injuries, both physical and psychological, upon the householder calls for condign punishment. In the present case, the attack was aggravated by occurring in the presence of a child.
On the other hand, the offences were not planned. The prosecutor at the plea said that the respondents had gone to the house to find out precisely what had happened and to warn the victim so as to ensure that nothing like that happened again. They knocked at the door of the house and the victim opened it carrying a torch. He left and returned with a baton. The respondents commenced to leave.
The prosecutor, evidently relying upon the records of interview with the respondents, said the victim shouted out insults and Kiem Pham ‘lost it’. It was then that the home invasion and physical violence occurred. None of the respondents entered the house armed.
Although the sentencing judge and counsel for the appellant characterised the respondents’ conduct as that of vigilantes, that description must be placed in context. I accept that the victim was innocent, but the respondents held another view. The relationship between Kiem Pham and his sister imposed a cultural obligation upon the respondent to take the matter up with the victim for the purpose of ensuring his sister’s future protection. His co-offenders were bound to him by ties of blood and marriage.
The respondents could rely upon mitigating factors which were significant: They pleaded guilty; they made full admissions; they were remorseful; their prospects of rehabilitation were good; there was no demonstrated need for personal deterrence. In the case of each respondent, it did appear that the offending was out of character. Not only did the respondents have unblemished records, there was no indication in their past lives of any tendency to violence. The sentencing judge said that the material placed before her was ‘capable of satisfying me that they were and continue to be, apart from this matter, of good character who made significant contributions.’
The appellant does not contend that the sentencing judge disregarded altogether any factors relevant to the exercise of her discretion. Rather, the complaint is that the sentencing judge failed to give due weight or alternatively gave excessive weight to relevant factors. As Callaway JA said in The Queen v Bernart:
Where the complaint is made in terms of weight, an appellate Court must be especially cautious not to substitute its own opinion for that of the judge in the absence of identifiable or manifest sentencing error.[1]
[1][1997] 1 VR 271, 277.
Moreover, as this is a Crown appeal, manifest inadequacy alone will not be sufficient to warrant appellate intervention. As Redlich JA said in the Director of Public Prosecutions v Bright[2]:
The inadequacy of the sentence must be “clear and egregious”, [3] the sentence being so disproportionate to the seriousness of the crime as to shock the public consciousness [4] and “undermine public confidence in the ability of the Courts to play their part in deterring the commission of crime.” [5]
[2](2006) 163 A Crim R 538.
[3]See DPP v Oversby 2004 VSCA 2008.
[4]See The Queen v Clarke [1996] 2 VR 520, 522.
[5]See Everett v The Queen (1996) 181 CLR 295, 206.
In my opinion, the individual sentences and the degree of accumulation fixed by the sentencing judge were open in the reasonable exercise of her sentencing discretion. Counsel for the appellant conceded that:
The individual sentences imposed matched the median sentences fixed for the respective offences.
In my view, the cumulation ordered by the sentencing judge was appropriate given the overlapping of critical elements of the offences. I am also of the opinion that in the light of the powerful evidence of mitigating factors placed before the sentencing judge, which the prosecutor at the plea described as ‘high quality plea material’, her decision to suspend the sentences did not constitute error. As Winneke P said in Director of Public Prosecutions v Carter:
The authorities make it clear that it is wrong to assume that a sentence of imprisonment albeit wholly suspended does not play a role in deterring others.[6]
[6][1998] 1 VR 601, 607.
In the circumstances, I think it is surprising that the Crown brought this
appeal. The appeal should be dismissed.
ASHLEY JA:
I entirely agree with what has fallen from my brother Buchanan. I would add only two matters.
First, it was not in debate that the learned sentencing judge fully and clearly articulated the various considerations bearing upon the sentence which should be imposed upon each offender. And, in what in my opinion was a convincing way, her Honour explained why a distillation of relevant considerations yielded the sentences which she imposed. I am not at all persuaded that a necessarily dispassionate consideration of all the circumstances of the offending and of the offenders should reasonably have culminated in the institution of these appeals. I agree with the submission of counsel for the first and second respondents to that effect.
Second, on the plea the prosecutor, in response to the judge’s repeated requests, submitted that the appropriate range for sentence in the case of each offender was a total effective sentence of five to six years’ imprisonment. Nothing was advanced in support of that submission - which counsel for the Director in effect conceded today was insupportable having account of current sentencing practice. The prosecutor’s submission, presumably acting on instructions, was worse than useless, although fortunately the judge was not distracted. It is quite inappropriate that invited submissions as to sentence range should degenerate into a bidding war, with the Crown advancing an insupportably high range. Emphatically, that is not the case.
BEACH AJA:
I also agree and have nothing further to add.
BUCHANAN JA:
The order of the Court is each appeal is dismissed and certificates will be granted to each of the respondents.
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