Phanekham v The Queen - [2015] NSWCCA 295

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Phanekham v R [2015] NSWCCA 295
Hearing dates: 17 November 2015
Date of orders: 30 November 2015
Decision date: 30 November 2015
Before: Ward JA
Adams J
Bellew J
Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW – Appeal – Sentence – Applicant convicted of manslaughter – Where report of psychiatrist was tendered before the sentencing judge - No submission made that the applicant was an inappropriate vehicle for general deterrence on account of his mental state – No submission made that the applicant’s conditions of custody would be rendered more onerous as a result of his mental state – Where sentencing judge concluded that there was no causal connection between the applicant’s mental state and his offending – Where sentencing judge concluded that in light of the factual findings he had made regarding the offending considerations of general and specific deterrence remained significant – Whether sentencing judge erred in so concluding – Whether injustice arose from the failure of counsel at first instance to make submissions to the sentencing judge regarding the applicant’s mental state – Appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: Dicianni v R; Pintabona v R [2015] NSWCCA 201
Iskandar v R [2013] NSWCCA 235
Romero v R [2011] VSCA 45; (2011) 32 VR 486
R v Engert (1995) 84 A Crim R 67
R v Phanekham (No 3) [2014] NSWSC 508
Category: Principal judgment
Parties: Viengsavanh Phanekham - Application
Regina - Respondent
Representation:
Counsel:
Mr W Hunt - Applicant
Mr P Ingram SC – Respondent
Solicitors:
Legal Aid NSW – Applicant
S Hyland, Solicitor for Public Prosecutions - Respondent

File Number(s): 2012/193773
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

[2014] NSWSC 508

Date of Decision:

02 May 2014

Before:

Beech-Jones J

Judgment

THE COURT: On 20 November 2013 Viengsavanh Phanekham (“the applicant”) pleaded not guilty to an indictment alleging that on 20 June 2012, at Ambarvale in the State of NSW, he murdered Mark William Puffett (“the deceased”).
On 29 November 2013 the jury found the applicant not guilty of murder, but guilty of manslaughter.
On 2 May 2014 the applicant was sentenced to a non-parole period of 6 years imprisonment commencing on 20 June 2012, with a balance of term of 2 years imprisonment commencing on 20 June 2018: R v Phanekham (No 3) [2014] NSWSC 508.
By notice dated 7 August 2015 the applicant seeks leave to appeal against that sentence upon a single ground, namely that the sentencing judge erred by failing to have proper regard to the applicant’s mental health in a principled fashion.

THE FACTS

The sentencing judge found the facts to be as follows (commencing at [4]):

[4] As at 20 June 2012 the victim's de facto partner, Ms Calleja, her son aged 17, and her two youngest children lived at a house in Martha Way,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Phanekham v The Queen

Details

AGLC: Phanekham v The Queen [2015] NSWCCA 295
Case: [2015] NSWCCA 295
Decision Date: 30 November 2015

CaseChat Overview and Summary

Phanekham was convicted of manslaughter and sought to appeal against the sentence imposed. The appeal centred on whether the sentencing judge had erred in considering the applicant's mental state in determining the appropriate sentence. The key legal issues were whether the sentencing judge should have disregarded the applicant's mental state in imposing the sentence and whether the failure of counsel at first instance to raise submissions regarding the applicant's mental state led to injustice.

The court considered that there was no causal connection between the applicant's mental state and his offending. It concluded that in light of the factual findings made by the sentencing judge regarding the offence, considerations of general and specific deterrence remained significant. The court found that the sentencing judge had not erred in concluding that the applicant's mental state did not preclude the imposition of a sentence that took into account the need for general and specific deterrence. The court also held that no injustice arose from the failure of counsel at first instance to make submissions regarding the applicant's mental state, as the sentencing judge had already concluded that there was no causal connection between the applicant's mental state and his offending.

The appeal was dismissed. The court affirmed the sentence imposed by the sentencing judge and held that there was no miscarriage of justice in the proceedings.

Orders