Pham v The Queen

[2019] NSWCCA 211

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Pham v R [2019] NSWCCA 211
Hearing dates:	28 August 2019
Date of orders:	04 September 2019
Decision date:	04 September 2019
Before:	Gleeson JA at [1] Johnson J at [2] Fagan J at [3]
Decision:	1. Appeal allowed. 2. Sentences imposed in the District Court on 21 May 2018 set aside. 3. In lieu thereof: (a) On charge No H127586502/1 of aggravated break, enter and commit serious indictable offence, sentenced to imprisonment commencing 11 October 2017 for 4 years and 7 months with a non-parole period of 3 years and 6 months. (b) On charge No H127586502/3 of common assault sentenced to imprisonment commencing on 11 September 2017 for a fixed term of 4 months.
Catchwords:	CRIMINAL LAW – appeals – appeal against sentence – manifest excess – s 112(2) Crimes Act – aggravated break and enter and commit serious indictable offence – assault occasioning actual bodily harm – s 59(1) Crimes Act – difficulty placing objective seriousness on a scale for the offence under s 112(2) – appeal allowed
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 Dinsdale v The Queen (2000) 202 CLR 321 R v Meatuai [2016] NSWCCA 42
Category:	Principal judgment
Parties:	Hoang Huy Pham - applicant Regina - respondent
Representation:	Counsel: A Fraser - applicant D Patch - respondent   Solicitors: Legal Aid NSW - applicant Solicitor for Director of Public Prosecutions - respondent
File Number(s):	2017/276132
Publication restriction:	No
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 21 May 2018 Before: Culver DCJ File Number(s): 2017/276132

Judgment

1. GLEESON JA: I agree with Fagan J.

2. JOHNSON J: I agree with Fagan J.

3. FAGAN J: This is an application for leave to appeal against sentences imposed by her Honour Judge Culver in the District Court on 21 May 2018. Before her Honour the applicant pleaded guilty to two charges and consented to having two additional offences taken into account on a Form 1.

4. The first offence was an aggravated break and enter with commission of a serious indictable offence, namely, an assault occasioning actual bodily harm (s 59(1) of the Crimes Act 1900 (NSW)). The particulars were that the applicant forced his way into the home of Ms Thi Thu Phan at about 10:30 am on 11 September 2017. He forced the front timber door and a metal security door, damaging both. The applicant threw a bottle in the direction of Ms Phan and said, “You go die”. He then punched her to the back of the head two or three times, causing a small laceration to her neck and a bruise. Ms Phan did not require medical attention. She was 21 years old at the time and was known to the applicant. The offence was charged in its aggravated form contrary to s 112(2) of the Crimes Act, which carries a maximum penalty of 20 years and a standard non-parole period of 5 years. The aggravation was the intentional infliction of actual bodily harm: see s 105A(1)(d).

5. The second offence was a common assault perpetrated against Ms Phan’s 19-year-old brother, Mr Cao Phan. He resided with his sister. He responded to her cry for help when the applicant entered her bedroom. Mr Cao Phan saw one of the punches delivered by the applicant to his sister’s head. He pushed the applicant away, enabling his sister to flee. The applicant then pushed Mr Cao Phan, causing him to stumble. That push constituted the common assault, charged under s 61 of the Crimes Act and carrying a maximum penalty of 2 years.

6. One of the matters taken into account on the Form 1 in sentencing the applicant for the first offence was intentional damage to property. When Ms Phan fled from her bedroom she went via external stairs to the home of her neighbours who lived on the first floor of the building. After the applicant had pushed Mr Cao Phan as described earlier, the applicant left the building and Mr Cao Phan went upstairs to find his sister. The two victims and their neighbours then heard the sound of things being broken in the dwelling below. The applicant had returned and smashed a television, computer and mirror within the dwelling. The damage, together with what had been caused by the forced entry, was to a value of about $5,000. This matter was charged under s 195(1)(a) of the Crimes Act for which there is a maximum penalty of 5 years.

7. The upstairs neighbours were a couple in their fifties. They went downstairs to investigate and saw the applicant inside the ground floor dwelling damaging property. The husband of this couple struck the applicant in self-defence as the applicant left the house. The applicant then punched the wife, a 54-year-old woman, in the eye. This common assault was charged under s 61 of the Crimes Act as the second matter on the Form 1.

8. The applicant was arrested on these charges on 11 September 2017 and from that date was remanded in custody until her Honour passed the following sentences:

• For the first offence (aggravated break and enter), taking into account the two matters on the Form 1: 6 years and 1 month commencing on 11 December 2017 with a non-parole period of 4 years and 6 months.

• For the second offence (common assault of Mr Cao Phan): 9 months imprisonment commencing 11 September 2017, with a non-parole period of 6 months.

• As a result of the 3 months accumulation, the overall effective sentence was 6 years and 4 months with a non-parole period of 4 years and 9 months.

9. In arriving at this result her Honour allowed a 25% discount for the applicant’s early plea of guilty. The ratio of the non-parole period to the head sentence in respect of both the first and the second offences was expressly adjusted to ensure that the effective non-parole period of the overall sentence would be 75% of the effective full-term. Her Honour found special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) only to the extent necessary to achieve this proportion.

10. The sole ground of appeal is that the sentences imposed are manifestly excessive. The objective circumstances of the offending were the subject of a statement of agreed facts, which her Honour reproduced in full in her remarks on sentence. For the purpose of deciding the present leave application, the brief particulars of each offence as already recounted require very little elaboration. The applicant was six weeks short of his thirtieth birthday when he carried out this attack. In about 2011 he had married a cousin of Ms Thi Thu Phan. Ms Phan knew the applicant through that connection. The applicant had been estranged from his wife before these offences were committed, for a period that was not made clear in the evidence. He had been infatuated with Ms Phan for approximately the previous two years.

11. Evidence of the applicant’s subjective circumstances showed that he migrated to Australia from Vietnam in 1991, at the age of about four. He left school early, during Year 8, and had worked in unskilled capacities. He had been unemployed for six months prior to the offences. No substantial information concerning the applicant’s family relationships or personal background was presented in the sentence proceedings. The applicant’s subjective case concentrated upon his history of misuse of drugs from the age of 15 and an asserted mental health episode at age 28 (2015), when it was said that he had received treatment for anxiety and depression and possibly suffered psychotic symptoms. There was evidence that his wife had suffered a miscarriage in 2014 and had subsequently left him to live in Vietnam. They have one very young child, who is with the wife. The applicant did not give evidence. All of the subjective matters were presented second-hand through the reports of a forensic psychiatrist and a Community Corrections Officer.

12. The applicant’s criminal record of recent years disentitled him from lenience and required that the sentence imposed should give full weight to specific deterrence. In early 2014 (at age 23) he damaged the house and vehicle of a person with whom he had been involved in a long-running dispute over money. As a result of that incident, charges of destroying property and giving a false name were laid and were dealt with leniently, by fine only.

13. In December 2014 and on 1 January 2015 the applicant committed offences of stalking and intimidating, damaging property and using an offensive weapon. These offences were part of a violent episode involving his wife, his mother and his stepfather. This had developed from quarrelling over the applicant’s use of methyl amphetamine. The applicant’s criminal history contains conflicting entries about the penalties imposed but the end result, after an appeal to the District Court, appears to have been three concurrent sentences of which the longest was 4 months, served from 2 January 2015 to 28 March 2015.

14. On 14 January 2016 the defendant was in possession of a small quantity of methyl amphetamine for supply. In August of that year he was sentenced for that offence to 3 months imprisonment from 14 June 2016 to 13 September 2016. In the meantime he had been arrested on 14 June 2016 on two charges of common assault and two of destroying or damaging property, arising from another violent altercation with his parents. He demanded his mother’s car keys from her and when she refused to surrender them he assaulted and threatened her. He assaulted his stepfather when he came to the aid of his wife. The applicant chased both victims off their property and then damaged their car and smashed some of the contents of their home. For each property damage offence the penalty was 9 months imprisonment with 3 months non-parole and for each assault a fixed term of two months, all concurrent. The effective non-parole period of 3 months was served from the expiry of the term in respect of the drug supply charge, that is, from 14 September 2016 to 13 December 2016.

15. Her Honour was informed that the applicant has used cannabis consistently from the age of 15 years (about 2002). From the age of 27 (2014) he has used methyl amphetamine approximately every two days. The forensic psychiatrist’s report contains a diagnosis of poly substance abuse disorder. There appears little doubt that at the time of the subject offences the applicant was abusing methyl amphetamine to a significant extent and that he had been doing so and committing offences in which drug use played a large part for three years. Despite repeated contact with law enforcement over those three years, including full-time imprisonment for his most serious offences, the applicant on his own admission did not desist from the use of illicit drugs. Over that period his violent offending, evidently driven by his regular drug use, escalated to the point of the crimes now under consideration.

16. The applicant has made conflicting out-of-court statements regarding what caused him to break into Ms Thi Thu Phan’s house and assault her. One version was given in a recorded interview with police, another to the Community Corrections Officer for the pre-sentence report and a further version was contained in the history he gave to his forensic psychiatrist. Her Honour fairly concluded that she could not rely upon any of these divergent explanations of his thinking at the time. The applicant’s unreliable and conflicting reports of his conduct and thoughts also meant that her Honour could not be satisfied that the psychiatrist’s views were formed on the basis of sound information. Her Honour said:

It is difficult for the Court to see any significant impact on the assessment of moral culpability by virtue of the polysubstance disorder.

17. Her Honour accepted that the applicant had undertaken drug awareness and rehabilitation courses in custody during his remand and that his stated intention to continue addressing his drug habit was genuine. The applicant’s expressions of remorse were also accepted. In the pre-sentence report dated 11 May 2018 a Community Corrections Officer assessed the applicant’s risk of reoffending as medium to high and listed his criminogenic factors as aggression, limited education and restricted employment options, drug misuse, emotional and personal factors and the applicant’s “attitude/orientation”. These factors are clearly reflected in his prior offending from late 2014 and in the offences to which this leave application relates. Her Honour understandably adopted a guarded view of the applicant’s prospects of rehabilitation.

18. The learned sentencing judge categorised the second offence as “a serious example of a common assault”, taking into account that some force was applied to Mr Cao Phan and that this occurred within his own home and in the context of him coming to his sister’s aid. In my view care must be taken not to overstate the seriousness of the offence given that the applicant did not prolong his attention to Mr Cao Phan but left the building immediately after pushing him. The circumstance that this took place within Mr Cao Phan’s home is punished as an aspect of the aggravated break and enter.

19. With respect to the objective gravity of the aggravated break and enter her Honour said:

I am of the view that the objective gravity for [the break and enter offence] does fall within the midrange of seriousness, albeit that the objective gravity, given the broad range of offences and circumstances of aggravation that can be contemplated under s 112(2) of the Crimes Act, is probably in the lower end of midrange.

20. As her Honour recognised in that passage, when measuring the objective gravity of the applicant’s offending against the maximum penalty of 20 years one must bear in mind that one element of s 112(2) is the commission of a serious indictable offence in conjunction with the breaking and entering and that element may be constituted by any of a wide range of offences, committed in circumstances that may vary widely in their gravity. Further, the maximum 20 year penalty is to cover cases with greater or fewer of the aggravating circumstances (as prescribed in s 105A) present. Section 105A provides:

circumstances of aggravation means circumstances involving any one or more of the following:

(a)   the alleged offender is armed with an offensive weapon, or instrument,

(b)   the alleged offender is in the company of another person or persons,

(c)   the alleged offender uses corporal violence on any person,

(d)   the alleged offender intentionally or recklessly inflicts actual bodily harm on any person,

(e)   the alleged offender deprives any person of his or her liberty,

(f)   the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed.

21. Thus, in evaluating the objective gravity of the applicant’s offence, the Court must recognise that the maximum of 20 years is to cover cases of, for example, multiple offenders breaking into a home, brandishing offensive weapons (as defined in s 5) and holding occupants against their will for a duration. On the other hand, the degree of seriousness of an offence against s 112(2) is not to be downplayed upon the basis that the intruder refrains from wounding or inflicting grievous bodily harm or that he does not carry a firearm. Break and enter offences that involve those more serious elements are “specially aggravated” and would be charged under s 112(3), with a maximum penalty of 25 years.

22. The difficulty of placing any particular breach of s 112(2) on a spectrum of seriousness was recognized by this Court in R v Meatuai [2016] NSWCCA 42. Fullerton J said:

[6] In his Honour’s sentencing remarks it is clear that he [found the offending “well above the mid-range for an offence of this kind”] not by making a judgment on the seriousness of an offence under s 112 of the Crimes Act 1900 (NSW) per se, a judgment that could not sensibly be made in the abstract given the range of serious indictable offences that may be committed by an offender on breaking and entering the premises, but because of the particular serious indictable offences committed in this case, namely assaults occasioning actual bodily harm, where random and unprovoked serious violence was inflicted on both victims in their own homes, with the female victim assaulted after she sought to intervene on her partner’s behalf and suffering the more serious injuries in the process.

23. With respect to this difficulty of classifying the relative gravity of a particular offence RS Hulme J said:

[28] A judgment as to the seriousness of an offence under s 112 of the Crimes Act is by no means easy. The section makes it an offence to break and enter a building and commit any serious indictable offence therein (my emphasis). In the Respondent’s case the serious indictable offence was an assault occasioning actual bodily harm – an offence which under s 59 and considered in isolation carries a maximum penalty of 5 years’ imprisonment or, if committed in company, 7 years’ imprisonment. There are many and much more serious indictable offences, including, for example robbery where, under s94 of the Act the maximum penalty unless the offence is aggravated is 14 years, detaining for advantage where under s 86 the maximum penalty is 14 years imprisonment or, if committed in circumstances of aggravation 20 years imprisonment, and causing grievous bodily harm with intent to do so where, under s 33, the maximum penalty is 25 years. Section 112 prescribes the same maximum penalties whichever of these offences is the serious indictable offence committed.

[29] Although by the terms of s 54A et seq of the Crimes (Sentencing Procedure) Act, 1999 (NSW) Parliament requires that it be done, the breadth of the “serious offence(s)” also makes it practically impossible to make any sensible judgment as to where, in the words of s 54A of the Crimes (Sentencing Procedure) Act the “middle range of seriousness” falls.

24. In R v Meatuai the respondent broke into the home of a couple whom he did not know and perpetrated against each of them an assault occasioning actual bodily harm (s 59 of the Crimes Act). RS Hulme J described the assaults as follows:

[17]   … [T]he Respondent and another man entered the house of the victims through the closed unlocked front door. Upon entering the premises the Respondent went straight to the bedroom where Michael Lester was, and assaulted him [count 1] by punching him repeatedly to the face and body with great force. When Mr Lester had been knocked to the ground, the Respondent continued to punch him to the head.

[18]   Louisa Vickers entered the bedroom and attempted to intervene. The Respondent turned on her and [count 2] punched her several times to the face, then pushed her backwards into a glass wardrobe with such force that it shattered. The Respondent again punched her to the face, before taking hold of her hair and dragging her across the room. The Respondent continued to kick and punch her as she lay on the floor.

…

[20]   The force of the assaults was such that Mr Lester sustained injuries that included: a 10mm laceration to the inside of his lower lip; swelling above the right eye; lacerations to the face; swelling and tenderness to his right hand; a small avulsion fracture to the base of his right middle finger; 40mm diameter bruising to the left torso; a fracture to his nose; and a small fracture to his left 10th rib. He also suffered a septal deviation and a small step fracture to his right nasal bone. Mr Lester subsequently required surgery to correct the deviated septum.

[21]   Ms Vickers’ injuries included: a comminuted fracture of the nasal bones deviated left; a blow out fracture of the floor of the right orbital eye socket (which did not require surgery); extensive bruising to the right eye area; swelling to her face; various lacerations, bruises and grazes; undisplaced fracture to anterior of left second rib; and vertigo. Ms Vickers also suffered a bald patch where a clump of her hair was pulled out. She required surgery for a closed reduction of her nasal bones, and has ongoing dental treatment to re-align her bite which was pushed out of shape. The bodily harm occasioned was serious but not grievous. A victim impact statement indicates that not all of the consequences of the assault on her have resolved.

25. At [31] RS Hulme J assessed each of these assaults as “at or very close to the top of the range of offences of assaults occasioning actual bodily harm” contrary to s 59 of the Crimes Act. Each was very much more serious than the applicant’s assault upon Ms Thi Thu Phan. The subjective case of the respondent in R v Meatuai was also worse than that of the present applicant. The respondent was 27 years old and had a substantial record of violence (three assaults), robbery (three convictions) and breaches of prison discipline (fighting).

26. This Court does not decide leave applications such as the present by comparing the sentence sought to be appealed from with one other sentencing decision or a small number of other decisions. For such relevance as it may have for present purposes, the sentences imposed by this Court upon upholding the Crown appeal in R v Meatuai were 5 years 6 months (3 years 6 months non-parole) for count 1 and 5 years (3 years non-parole) for count 2. Although the assault on Ms Vickers in count 2 was slightly more serious than that upon Mr Lester, a lower penalty was imposed to avoid double counting the element of breaking and entering. Commencement dates were fixed to achieve 18 months accumulation on the lesser sentence. The total effective sentence was 6 years 6 months (4 years 6 months non-parole). A 10% discount for late pleas of guilty was allowed. The starting point sentences were therefore:

• For count 1, 6 years 1 month (3 years 11 months non-parole)

• For count 2, 5 years 6 months (3 years 4 months non-parole).

• Overall, 7 years 3 months (5 years non-parole).

27. In determining an appropriate sentence for the first offence in the present case her Honour was required to take into account the Form 1 matters in accordance with the principles stated in Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518. In doing so her Honour expressly considered the seriousness of each of the matters. It was noted that, with respect to the property damage charge, the applicant “did not just lash out in one very discreet moment of anger” but damaged a number of items in a rampage and that the assault on Ms Thi Thu Phan’s female neighbour was a punch to the eye, “a particularly vulnerable part of the body”. Taking into account this common assault on the Form 1 necessarily resulted in some uplift to what would otherwise have been the sentence for the first offence, because an additional victim was involved.

28. The sentences passed by her Honour (see [8] above) implicitly involved starting point sentences, before the discount for pleas of guilty, as follows:

• For the first offence (aggravated break and enter): 8 years 1 month with 6 years non-parole.

• For the second offence (common assault of Mr Cao Phan): 12 months with 8 months non-parole.

• Overall: 8 years 7 months with 5 years 3 months non-parole.

29. In order to succeed on his single ground of appeal the applicant must demonstrate that the sentences imposed by her Honour were “unreasonable or plainly unjust”; or at least that one of the sentences should be so characterised and/or that the degree of accumulation between the sentences led to an overall effective term of imprisonment that was “unreasonable or plainly unjust”: Dinsdale v The Queen (2000) 202 CLR 321 at 325. The stringency of this test and the latitude that must be allowed to District Court judges in exercising their sentencing discretion are recognised. Nevertheless, in my view both sentences imposed in this case were manifestly excessive.

30. Notwithstanding the difficulties of placing the first offence in a range of relative seriousness, her Honour’s view that it was at the lower end of mid-range is a reasonable approximation. Taking into account the Form 1 matters, the absence of any compelling subjective considerations and the need for general and specific deterrence, this crime did not warrant a starting point head sentence of 8 years and 1 month with non-parole period of 6 years. At that level the sentence was manifestly excessive. An appropriate starting point would have been no more than 6 years and 2 months with a non-parole period of 4 years and 7 months. After applying the 25% discount I would consider a sentence of 4 years and 7 months with a non-parole period of 3 years and 6 months appropriate.

31. The second offence was a common assault of moderate physical force. It did not involve a blow but rather a push and the consequence was a stumble rather than a fall or an impact. On the scale of seriousness of offences against s 61 this was no higher than in the midrange. The Court cannot treat this offence as aggravated by the circumstance that it occurred in the course of a home invasion as that would result in double punishment, the break and enter being already dealt with as part of the criminality of the first offence. The starting point for the common assault should be fixed term of no more than 6 months. This would reduce to 4 months (with rounding down) after discounting for the applicant’s plea.

32. This Court will not lightly interfere with a sentencing judge’s view about the appropriate degree of concurrence or accumulation of penalties. But as I propose that her Honour’s orders be set aside and that this Court should resentence, concurrence or accumulation may be considered afresh. The common assault constituting the second offence was integral to the aggravated break and enter. The force used was not great and did not involve a blow. It did not add significantly to the seriousness of the overall event. I consider accumulation of only 1 month is appropriate, in recognition that there should be some added punishment where the second offence has involved an additional victim. In contrast, the assault upon the female neighbour from upstairs did add materially to the total criminality of the matter and that is taken into account in the sentence I propose for the first offence.

33. The orders I propose are:

1. Leave to appeal granted.

2. The appeal is allowed.

3. The sentences imposed by Culver DCJ in the District Court on 21 May 2018 are set aside.

4. In lieu thereof:

1. On charge No H127586502/1 of aggravated break, enter and commit serious indictable offence on 11 September 2017 at Carramar, taking into account the offences on the Form 1, the applicant is sentenced to imprisonment for a non-parole period of 3 years and 6 months commencing on 11 October 2017 and expiring on 10 April 2021 and a balance of term of 1 year and 1 month expiring on 10 May 2022.

2. On charge No H127586502/3 of common assault on 11 September 2017 at Carramar, the applicant is sentenced to imprisonment for a fixed term of 4 months commencing on 11 September 2017 and expiring on 10 January 2018.

3. The earliest date upon which the applicant will be eligible for release on parole is 11 April 2021.

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Decision last updated: 04 September 2019