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Phongthaihong v The Queen

Phongthaihong v The Queen

Case [2021] VSCA 317 18 November 2021

Appeal

Sentence

Culpable Driving Causing Death

Negligently Causing Serious Injury

Reckless Conduct Endangering Life

Manifest Excess

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0204

BRANDON PHONGTHAIHONG	Appellant
v
THE QUEEN	Respondent

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JUDGES:	KYROU and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 November 2021
DATE OF JUDGMENT:	18 November 2021
MEDIUM NEUTRAL CITATION	[2021] VSCA 317
JUDGMENT APPEALED FROM:	[2020] VCC 294 (Judge Pullen)

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CRIMINAL LAW – Appeal – Sentence – Culpable driving causing death – Negligently causing serious injury – Reckless conduct endangering life – Standard sentence – Whether judge engaged in two-stage sentencing in taking into account standard sentence – Manifest excess – Sentence of 12 years and nine months’ imprisonment with non-parole period of eight years and nine months manifestly excessive – Orders for cumulation not giving sufficient effect to principle of totality – Mill v The Queen (1988) 166 CLR 59, Brown v The Queen (2019) 59 VR 462 applied; Crimes Act 1958 ss 22, 24, 318(1), Sentencing Act 1991 ss 5A–5B – Appeal allowed – Resentenced to 11 years’ imprisonment with non-parole period of seven years.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D A Dann QC	Brian T D Cash
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
T FORREST JA:

The appellant pleaded guilty before a judge of the County Court to one charge of culpable driving causing death (charge 1), two charges of negligently causing serious injury (charges 2 and 3) and one charge of reckless conduct endangering life (charge 4).

On 18 March 2020 the judge sentenced the appellant to 12 years and nine months’ imprisonment with a non-parole period of eight years and nine months.

The appellant was aged 21 at the time of offending and 22 at the time of his plea hearing in the County Court.

The details and structure of the sentence imposed are set out in the table below.

Charge Offence Maximum Sentence Cumulation

1 Culpable driving causing death (Crimes Act 1958 s 318(1)) 20 years 9 years Base

2 Negligently causing serious injury (Crimes Acts 24) 10 years 4 years and 6 months 20 months

3 Negligently causing serious injury 10 years 4 years 18 months

4 Reckless conduct endangering life (Crimes Act s 22) 10 years 18 months 7 months

Total effective sentence: 12 years and 9 months’ imprisonment

Non-Parole Period: 8 years and 9 months

Section 6AAA statement: 17 years’ imprisonment with a non-parole period of 14 years

Other relevant orders: Licence disqualification for a period of 12 years

The appellant was granted leave to appeal by a judge of this Court on the following grounds:[1]

GROUND 1:
The Learned Sentencing Judge erred in her approach to the Standard Sentencing consideration that had to be undertaken in the Applicant’s case.
GROUND 2:
The total effective sentence and non-parole period are manifestly excessive.

[1]Phongthaihong v The Queen (Unreported, Victorian Court of Appeal, Priest JA, 19 March 2021).

At the leave hearing the appellant was also granted an…

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 Phongthaihong v The Queen

Details

AGLC: Phongthaihong v The Queen [2021] VSCA 317
Case: [2021] VSCA 317
Decision Date: 18 November 2021

CaseChat Overview and Summary

In the case of Phongthaihong v The Queen, the appellant was convicted for culpable driving causing death and negligently causing serious injury. The case was heard in the Court of Appeal of Victoria. The central issue before the court was whether the trial judge had engaged in a two-stage sentencing process when considering the standard sentence, and if the sentence imposed was manifestly excessive. Specifically, the appellant argued that the sentence of 12 years and nine months’ imprisonment, with a non-parole period of eight years and nine months, was manifestly excessive. The court was also tasked with examining whether the orders for cumulation appropriately considered the principle of totality, as articulated in Mill v The Queen and Brown v The Queen.

The court examined the sentencing principles outlined in the Sentencing Act 1991 and the Crimes Act 1958, focusing on the requirement for a coherent, principled approach to sentencing. It was established that the trial judge had indeed considered the standard sentence in a two-stage process, which is impermissible under sentencing law. Furthermore, the court found that the sentence was manifestly excessive, as it did not accord with the principle of totality and failed to provide sufficient weight to the orders for cumulation. The appeal was thus allowed on the basis that the sentence was disproportionately severe and did not appropriately reflect the principles of sentencing.

Consequently, the appellant’s sentence was reduced to 11 years’ imprisonment with a non-parole period of seven years. This resentence was deemed to better align with the principles of sentencing and the overarching requirement of proportionality. The court's decision underscored the importance of a unified sentencing approach and the need for sentences to be commensurate with the severity of the crimes committed.

Orders