Director of Public Prosecutions v Pham
[2019] VSC 245
•12 April 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0067
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THANH HUU PHAM |
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 December 2018 |
DATE OF SENTENCE: | 12 April 2019 |
CASE MAY BE CITED AS: | DPP v Pham |
MEDIUM NEUTRAL CITATION: | [2019] VSC 245 |
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CRIMINAL LAW – Sentence – Intentionally causing serious injury – Prohibited person carrying firearms – Accused shot victim multiple times with sawn off .22 calibre rifle – Guilty plea – Prior convictions – Diagnosed with Post-Traumatic Stress Disorder and Major Depressive Disorder – Guarded prospects of rehabilitation – Total effective sentence of seven years and six months’ imprisonment, with a non-parole period of five years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K Armstrong | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr A Patton | Valos Black & Associates |
HIS HONOUR:
On 25 October 2018, you pleaded guilty before Judicial Registrar Pedley to one charge of intentionally causing serious injury to Tye Wallis (maximum sentence 20 years’ imprisonment), and to a ‘rolled up’ charge of being a prohibited person carrying firearms (maximum sentence 10 years’ imprisonment) in circumstances which I will set out below.
On 17 December 2018, a plea was conducted on your behalf before me. The Prosecution Plea Opening was read on the plea and became Exhibit 1.
On 13 March 2016, you were living at your father’s house in Delahey. At about 8.00 pm that evening, Tye Wallis, an associate of yours, came to the house where he had been previously. He told the police that he had come there to collect money which he claimed that you owed him. At that time, you and your girlfriend, Sarah Cardona, were at the back of the garage and your brother, Winston, and his girlfriend were in Winston’s bedroom in the main part of the house.
Wallis, without identifying himself, sent Cardona a text seeking to buy drugs. This text was designed to get you out of the house. Wallis happened to be at the second garage door, which meant that when you came out of the family room into the carport area to check who was there, he was behind you. Cardona had followed you. You were armed with a black handgun (part of Charge 2). Wallis took the gun from you and Cardona saw it in his hand. He says that he threw it away. It was never recovered at the scene. He told you to sort out the money you owed him and you and Cardona went back inside the house.
Wallis stayed in the carport and you came out through the side door armed with a sawn-off .22 calibre rifle. Cardona says that Wallis still had the black handgun, although he was not doing anything with it. You were about two or three metres away from Wallis. Wallis says that you fired seven to ten shots, but he only felt the impact of the first shot. He fell to the ground and you continued to shoot at him. He got up and managed to escape down the driveway to a car being driven by his girlfriend, Candice Monichon, who drove him to the Western General Hospital where he was treated for multiple gunshot wounds.
Dr Morris Odell of the Victorian Institute of Forensic Medicine (‘VIFM’) found that Wallis suffered six wounds to various parts of his body, as follows:
(i) upper central abdomen;
(ii) right lower abdomen;
(iii) right upper thigh;
(iv)right upper arm;
(v) right side of the spine where the bullet lodged in the middle of the bank in L1 facet joint; and
(vi)right middle finger.
Dr Odell regarded the wounds as life threatening. Wallis’ abdominal injuries were the most serious and, in his opinion, Wallis could not have survived without surgical intervention.
You and Cardona left the scene in separate cars. Cardona later went back to the house where she collected clothes and her dog.
When the police attended the scene they found evidence of the shooting and Wallis’ presence there. It appears that Cardona made some attempts to help you and your potential escape, but largely unsuccessfully.
You were ultimately arrested on 16 May 2016. You were suffering from a foot injury sustained a few days earlier and were taken to the Western General Hospital. When interviewed, you largely sought to place the blame on Wallis by saying that he had come to the house armed with a black handgun, demanding money and said to you ‘You’re dead’.
Although it is not all that easy to follow, you said that you went back and armed yourself and when you came out you were afraid for your partner and just started shooting. You agreed that you fled the scene. In relation to the firearm you admitted was yours, you said you had it for your own protection.
You have been in custody since the date of your arrest, and there has been significant delay in the finalisation of the case and I have taken that into account.
You had been charged with attempted murder and the matter ultimately resolved for the present charge. I regard that settlement as appropriate. Although your plea was not early, it nonetheless has significant utilitarian value.
Tye Wallis has not submitted a Victim Impact Statement. Given the alleged likely criminal association between the two of you, that is not surprising. I make no finding adverse to you in that regard.
I have set out Tye Wallis’ injuries above. He was examined by Dr Lucy Bransom at VIFM on 9 May 2017 and she reported the following results on examination under the heading ‘Opinion’:
With respect to the above information and findings, I am of the opinion that Tye Wallis had the following longterm sequelae from the incident:
1. Constant paraesthesia to areas on the front of his thighs.
2.Anxiety about situations in which he was likely to encounter many strangers.
3. Pain on bending or carrying things with his right middle finger.
The nature of the lump to his lower back is unknown at this stage therefore I cannot determine whether it was related to the incident.
In terms of longterm function, the above issues are likely to affect:
1. The nature of employment that is available to Tye Wallis.
2. Aspects of his social life and psychological well-being.[1]
[1]Report of Dr Lucy Bransom, Victorian Institute of forensic Medicine, 9 May 2017, 4.
It appears, somewhat fortunately, from both your point of view and that of Mr Wallis, that his ongoing prognosis is reasonable. He was shot six times and underwent two significant operations. The persistent use of the firearm, taken together with the injuries sustained, makes this at least a reasonably serious example of intentionally causing serious injury.[2] It must be taken to have been quite deliberate with an intent falling short of intent to kill.
[2]Dieu Chol v The Queen [2016] VSCA 252 [5].
In relation to Charge 2 of you being a prohibited person carrying firearms, it is a rolled-up count covering both the black handgun and the sawn-off .22 calibre rifle. Even apart from the prohibition upon you because of your criminal history, you could not have lawfully had either of those weapons. It is significant that both the weapons are capable of being concealed. I have had regard to the fact that the use of the sawn-off rifle has been taken into account as aggravating your conduct of Charge 1. It is integral to that offending and it does aggravate it in that way.
Although you have said the possession of the weapons[3] (when speaking of only one of the weapons) was for your protection, I am satisfied that it was for only protection in the context of other criminal activity that you had it. The same cannot be said for the handgun which has no direct connection with Charge 1.
[3]The charge was actually that of carrying a firearm.
In an ordinary case, a rolled-up charge would be a basis for regarding the conduct as a more serious example of the offence alleged because it did not fall to be considered in isolation. For sentencing purposes when considering this charge, in your case, I have had regard to the seriousness of a person in your position having possession of a handgun. The significance of the rolled-up charge in this case will be that your criminal record will show that you ‘carried’ two firearms.
Your criminal history was admitted on the plea. Your history in that regard goes from December 2004, when you were 21, up until February 2015. Your prior convictions are somewhat typical of a person who has had a long time drug addiction which in your case was an addiction to heroin, although, in more recent times you have been involved with methylamphetamine.
You have prior convictions or findings of guilt for trafficking and using heroin, and dishonesty offences, presumably connected to your drug addiction. You have been released on a Community Based Order (‘CBO’) and a Community Corrections Order (‘CCO’) but have breached several orders. Although it appears that in December 2012, as a result of breaching one order, you were placed on a further order which you kept.
It seems fair to say that all of the orders were directed towards you doing something about your drug addiction. You also have prior convictions for the possession of prohibited weapons and dangerous articles. Ultimately, in April 2015, you were sentenced to a combination of one months’ imprisonment and a CCO, largely for drug offences. You breached that order and in February 2015 you were sentenced to be imprisoned for four months for a number of drug related and dishonesty offences. The present offences were committed on 13 March 2016. You have been given many opportunities by the criminal justice system. You have not taken those opportunities.
You are 36 years of age and you were born in Indonesia. You are the eldest of three children, having a sister and a brother. Your family migrated to Australia when you were either five or six years of age. Your father was a master builder and your mother worked in a factory. You had to help look after your brother and sister to support them.
You told your psychologist, Carla Ferrari, that you suffered some sex abuse but did not want to go into details. You are close to your family and the house where these events occurred is the family home, built by your father. Your mother died about six years ago after a long painful illness and that event had an adverse affect on your drug-taking.
You are close to your brother and sister, even more so since your mother’s death. You all but completed your schooling up to Year 12. You reported that you struggled at school having difficulty maintaining focus. After school you worked in a number of jobs, none of them for any length of time and you have preferred to support yourself by getting ‘easy money’ from illegitimate means.
You have a son from a two year, previous relationship and prior to these events you had visited him weekly. You were in a brief (two month) relationship, which has since ended, with Sarah Cardona at the time of these events.
From about the age of 18, as I have already mentioned, you became addicted to heroin, although you had used other drugs. Your preference was to smoke heroin and your period of abstinence since May 2016 has been your longest for some years. You are on methadone, which you regard as beneficial. In the past various attempts, of which there have been a number, at drug rehabilitation have proved unsuccessful.
On your plea, I received a report from Forensic Psychologist, Carla Ferrari, dated 12 December 2018 and a supplementary report dated 14 December 2018. Ms Ferrari diagnosed you as suffering from Post-Traumatic Stress Disorder (‘PTSD’) and Major Depressive Disorder. Although Ms Ferrari described your symptoms separately, it is clear to me that they are interrelated as those findings come also with a background of quite significant drug abuse.
In her first report, Ms Ferrari concentrated, to a large degree, on the proposition that your sentence would be harder for you than for some other person without your conditions. In her second report she said that your PTSD, although not causative of this behaviour, she said your reaction, or over reaction, was influenced by that condition.
Both you and your sister gave evidence on the plea describing several incidents in which you had been involved where your life, and the life of your family, had been threatened. The incidents arose out of your criminal behaviour and none of them were reported to the police. I received records of hospital admissions arising out of some of the incidents. You have the significant support of your sister and the rest of your family who visit you regularly.
I observed on the plea that it would be ironical if your moral culpability could be reduced by you being a less than innocent victim of criminal activity. But that is not the end of the matter. You do suffer from PTSD and that condition did underlie your conduct to a degree. I have taken that into account in your favour, but not to the degree that I might have, had you been an entirely innocent victim of the criminal behaviour of others.
I have also taken into account that, because of the conditions from which you suffer, your sentence will be more onerous upon you than other prisoners not suffering from your conditions.
I have taken your plea of guilty into account. I think you regret finding yourself in the position you are in. I do not regard you as remorseful.
Your prospects of rehabilitation are guarded, but it goes almost without saying that if you maintain your abstinence from drugs your prospects will be much better. Ultimately that will depend on your determination to remain drug free. That is, the hope that you can do, at 36 years of age, what you are not able to do at the age of 18.
When you were first admitted to custody, the conditions at the Melbourne Remand Centre were still difficult because of the events that occurred there in July 2015 and your incarceration at that time was more difficult for you than it might otherwise have been, and I have taken that into account.
This incident did involve the use of firearms where you were the person who introduced them into the dispute and you showed, by your conduct, that you were prepared to use them. Your attack was persistent, and although I accept the appropriateness of the plea, it was mainly fortuitous that you did not kill Mr Wallis but I do not in any way sentence you as though your crime was that of attempted murder.
The shooting occurred in an ordinary residential street during daylight hours and did represent a risk to members of the public, as I have already observed. I regard this as a relatively serious example of the crime of intentionally causing serious injury. The carrying of the two firearms, having particular regard to the handgun in the way I have described, is also a reasonably serious example of that offending.
I am obliged to have regard to just punishment and denunciation and both general and specific deterrence.
On the charge of intentionally causing serious injury, you are sentenced to be imprisoned for six years.
On the charge of a prohibited person carrying firearms you are sentenced to be imprisoned for three years and I order that 18 months of that sentence be served cumulatively upon Charge 1. That is a total effective sentence of seven years and six months and I fix a period of five years before you are eligible for parole.
I declare that pursuant to s 6AAA of the Sentencing Act 1991 that had it not been for your plea of guilty, I would have sentenced you to be imprisoned for nine years and six months, with a non-parole period of seven years.
I declare that you have served 1061 days, by way of pre-sentence detention. I direct that the fact of this declaration was made and its details be entered in the records of the Court.
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