R v Anh Huy Pham
[2013] VCC 1350
•23 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-0122
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANH HUY PHAM |
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JUDGE: | HER HONOUR JUDGE LEWITAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 and 11 September 2013 | |
DATE OF SENTENCE: | 23 September 2013 | |
CASE MAY BE CITED AS: | R v Anh Huy Pham | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1350 | |
REASONS FOR SENTENCE
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Subject: Affray
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms Elizabeth Ruddle (3 September 2013) | Craig Hyland |
| Ms L Featonby (11 September 2013) | Solicitor for Public Prosecutions | |
| For the Accused | Mr L Gwynn | Marich Legal |
HER HONOUR:
You, Anh Huy Pham have pleaded guilty before me to one count of affray. The maximum penalty for this offence is five years' imprisonment.
At approximately 4.30 pm on Wednesday 13 April 2011 Patrick Brown (also known as Pat Banks) met two friends, Puusan Yu and Kevin Trinh, and was sitting at a table outside Max Brenner’s Café, at the QV Centre, Lonsdale Street Melbourne.
At the time of the offence, you were a member of a group which call themselves “Family Til Death” also known as FTD. You and other persons associated with FTD were angry with Mr Brown as a result of an altercation at a night club called Cho Gao in early April 2011 and his perceived links to a gang known as “Fitzroy”.
At approximately 4.45pm, you and a group of approximately ten young Asian males approached Mr Brown and fought with him. During the affray Mr Brown was hit over the head with a glass bottle and with plates, glasses and chairs. Mr Brown was also kicked and punched during the affray a number of times. The affray lasted approximately ten seconds before the group ran away. You were involved in the affray. It is not alleged by the prosecution that you personally hit or caused any injury to Mr Brown.
There was a large number of people in the area at the time who witnessed the affray.
Mr Brown was 18 at the time of the incident and was a full time student. Mr Brown was taken to the Royal Melbourne Hospital. He sustained multiple deep lacerations to the left parietal region (scalp), the right shoulder, right wrist and right thigh. He underwent surgery to repair the lacerations and was admitted to hospital for four days.
A search warrant was executed on the premises where you lived with your parents on 9 May 2011. During the warrant, police seized a laptop computer from your bedroom.
Messenger Plus! Chat logs were downloaded from your laptop computer. You had spoken with various people via Messenger Plus! about your anger towards the victim prior to the affray. You made admissions about being involved in the affray. The relevant conversations include:
(a) At 11.06pm on 4 April 2011, you asked a person using the name Joe "would there be trouble” if you hit Pat Banks and that you were “probs gonna hit him in the city”.[1]
[1]Messenger Plus transcript, page 857 of the depositions.
(b) On the day before the assault, at 3.36 am on 12 April 2011, you told a person using the name of Khalifa that you were going to hit Mr Brown either tomorrow or Wednesday and that you saw him every day in the city.[2]
[2]Messenger Plus transcript, pages 803-804 of the depositions.
(c) On the day following the incident, you spoke via Messenger Plus! with a number of unidentified people about the assault, including sending and receiving links to articles about the assault on Mr Brown[3] as well as indicating that you believed another member of the group had stabbed Mr Brown in the head with a bottle.[4]
(d) At 10.43 pm on 14 April 2011 you asked a person using the name Vania.s to find out whether Mr Brown was paralysed because you had heard a rumour that he was. Mr Pham said “Okay we did get Pat pretty bad I guess. As long as he’s not paralysed that sounded fucked when I heard it” ”To do that you need to stab through the skull. We didn’t do that”.[5]
[3]Messenger Plus transcript, page 847-8 of the depositions discussions with “Joe” and 894 of the depositions, message of “Ro”.
[4]Messenger Plus transcript, page 847-848 of the depositions.
[5]Messenger Plus transcript, page 953 of the depositions.
You participated in a record of interview on 9 May 2011. During that interview, you denied that you were present during the alleged assault. You admitted that you had an argument with Mr Brown and his friends the day before the assault at the Cho Gao bar. You said that the argument was about a fight that had happened previously during which your friends were assaulted. You said that you had reason to believe that Mr Brown caused the fight. Mr Brown told you that he did not cause the fight and you shook hands on the day before the assault.
You were released without charge after you were interviewed on 9 May 2011. You were charged on summons on 16 November 2011. You remained on summons until you were committed for trial on 16 July 2012 when you were released on trial bail.
The matter ran as a contested committal on 8 June and 16 July 2012 and was listed for trial on 1 July 2013. You pleaded guilty to one count of affray on 16 May 2013, having indicated a willingness to plead to such a count approximately one week earlier.
The facts in this case are very serious and disturbing. The aggravating aspects include the element of pre-planning and the use of weapons that were picked up from the café in question such as a bottle, chairs, articles of crockery and the like.
No victim impact statement has been tendered in this matter. I have been informed that the victim was offered the opportunity of making such a statement but chose not to do so. It is clear from the depositions and the evidence I do have before me that there was considerable suffering on the part of the victim as a result of the incident.
As has been pointed out by your counsel, there are however some mitigating factors. You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial. Further, I take it into account in your favour that you intimated early your intention to plead guilty to this charge. Your counsel submitted that the committal went very well for you on the issue of identification. The CCTV footage does not identify you, and the victim did not want to attend Court to give evidence. I also take into account in your favour that your plea of guilty has facilitated the course of justice.
I have been told something of your personal history and your circumstances. You were born on 1 June 1991 and are 22 years old. At the time of the offence you were 19 years old. You have two sisters aged 26 and 24.
You live at home your parents. You come from a strong and supportive family. Your parents own and operate a clothing and packaging factory. Your father and mother were in court to support you. Two of your friends (John and Tram) also attended court. No one in your family has had any dealings with police.
You were educated at Melbourne High School. You completed VCE in 2009, receiving an ENTER score of 89. You were accepted to Melbourne University. In 2011 you transferred to civil engineering at RMIT. You withdrew from those studies in 2012. During your VCE you worked as a waiter. In 2011 you were employed at the Mint Group (Crown Casino) in hospitality on a casual basis. You commenced an apprenticeship in June 2012 at Lance Dixon Jaguar Land Rover, Doncaster.
You have no prior convictions. I sentence you as a person of previous good character. I take into account the reference dated 28 August 2013 by Dan Hartney, the Workshop Controller at Lance Dixon Jaguar Land Rover[6] and a reference by Andrew Jakimiuk[7], service manager for Lance Dixon Jaguar Land Rover. Mr Hartney said that you are currently enrolled in a Jaguar apprentice training program and you travel to, and stay in, Sydney for a week every month to study and receive brand-specific training. He said that you are dedicated to your studies and your job and that you have a “bright future here with us”. Mr Jakimiuk said that you have been employed with Lance Dixon Jaguar Land Rover since 25 June 2012 and are now a second year apprentice. He said that you are an honest and hard working employee. I also take into account the letter by your older sister, Jennifer Pham.[8]
[6]Exhibit 1.
[7]Exhibit 2.
[8]Exhibit 3.
You have been in no further trouble since this matter. Before the incident, you were a member of the “Family Til Death” group which was an association of school friends. After this incident, the FTD group disbanded and it is not part of your life.
I am, on balance, satisfied that the chances of your rehabilitation are good. You are in stable employment as evidenced by the references tendered. You are highly regarded by your employers who are aware of the offence. You come from a strong and supportive family environment. Your family is aware of the offending and has responded well to your involvement in this matter. You are intelligent and have the capacity to learn from your mistakes.
Your co-offenders have not been caught or dealt with by a court and as a result I am unable to take into account parity of sentence.
However, as well as those matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.
You were 19 years old at the time of the offence and a young offender. I take into account your youth to the extent that you are 22 years old and are still a young man. There is a responsibility on judges in dealing with young offenders who have committed criminal offences to impose sentences which take into account youth and the need to give more emphasis to the need for rehabilitation than with adult offenders.
Since you committed these offences, there has been delay in the matter coming before me. Your counsel did not submit that the delay was the type of delay that should be visited upon the Crown. There was a gap between the arrest and interview on 9 May 2011 when the chat logs were seized. You were not summonsed until 16 November 2011. It is now 29 months since the offence occurred. The charge of intentionally causing serious injury on which you were committed could not be heard in the Magistrates Court. As you are now 22, the delay has meant that a Youth Justice Order is no longer available. I accept in your favour that you have had this hanging over your head and that this has caused you a considerable amount of anxiety.
The prosecutor, in sentencing submissions, submitted that the appropriate sentence would be a term of imprisonment with the head sentence in the range of 12 to 18 months. The prosecutor submitted that having regard to your current employment, a suspended sentence is within the range.
Your counsel submitted that it is not necessary to encumber your future by recording a conviction in this case given the matters in mitigation, the principles relevant to young offenders and the considerations in s.8 of the Sentencing Act (1991).
Section 8 of the Sentencing Act (1991) provides that:
(1)In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including –
(a)the nature of the offence; and
(b)the character and past history of the offender; and
(c)the impact of the recording of a conviction on the offender’s economic or social well-being or his or her employment prospects.
Your counsel submitted that the nature of the offence includes the maximum penalty which, in the case of affray, is five years' imprisonment. Your counsel submitted that although the offence is serious, it only lasted for ten seconds. The evidence and the tendered material indicates that you are a young man of good character and standing. You would be required to disclose whether you have any convictions when applying for future positions. He also said that you would have to disclose any convictions if you wanted to travel to the United States of America.
Your counsel referred to DPP v Candaza[9]. Candaza was a Director’s appeal on the issue of a sentence imposed by this court on four young men for an armed robbery which involved the use of a screwdriver. The offenders, all in their late teens, were given the opportunity to avoid a conviction. However the facts in that case were different from the facts in this case. The offences in Candaza were committed “almost on the spur of the moment” and no one was injured. In this case there was an element of preplanning and the victim sustained serious injuries requiring surgery and was hospitalised for four days.
[9][2003] VSCA 91.
The Crown accepted that you have taken good steps towards rehabilitation and that is why the sentencing instructions changed from an immediate term of imprisonment to a suspended term of imprisonment. However, the Crown’s position is that a conviction is required in this matter. The Crown’s position in relation to this offence is that it is a serious example of an affray. It was in the middle of the day and in a highly public area. A person was badly injured as a result of the affray, although it is not the Crown’s position that the injury was directly caused by you. There is a significant pre-planning element to this offence; it was not like a pub brawl. The prosecutor submitted that because the offence was committed in the context of alleged gang rivalry, general deterrence plays a significant role in sentencing considerations. The prosecutor was instructed to say that but for your youth and rehabilitative efforts over the last two years, an immediate term of imprisonment would be the appropriate sentencing range.
The Crown submitted that s.8(1)(c) of the Sentencing Act requires something over and above some speculation that a conviction may cause some concern in the future. Every person brought before the Court will have some difficulty by virtue of a conviction recorded against him. You are not in a situation where you either instruct that you currently wish to travel overseas or wish to pursue a job overseas and you are not in one of those careers (for instance, teaching or working with children where a conviction is a specific impediment). The Crown’s submission is that the recording of a conviction is appropriate in this case.
Having regard to all the circumstances of the case and the submissions made by counsel, in my judgment the nature of the offence requires that a conviction of the offence be recorded. Whilst I accept Mr Gwynn’s submission that the offence “only” carries a maximum period of five years' imprisonment, the offence was not at the lower end of the range. The time taken for the commission of the offence was certainly long enough for Mr Brown to be significantly injured. The defence conceded that you were involved in and assisting in the affray spectacle without striking any blows. This is a serious example of affray because it was in a public place. It was during daylight hours. There were a number of citizens in the CBD and shoppers and the like in the area of the QV precinct who were disturbed by what they witnessed. It involved the use of weapons. Your counsel conceded that there was a degree of pre-planning and that you were aware that Mr Brown regularly attended that area and was likely to be there. You attended with your group for the purposes of being involved in unlawful fighting. Your counsel conceded that the affray involved elements of cowardice because the groups were not equal.
Your counsel submitted that this offending for a young man, albeit a serious example of affray, does not call for the imposition of a term of imprisonment. Your counsel submitted that the appropriate disposition in the circumstances of this case is to release you on a community corrections order.
In the alternative, your counsel submitted that an appropriate disposition would be the imposition of a fine. In my judgment, the imposition of a fine for this offence would not give sufficient effect to the principles of general deterrence, the community's denunciation of your conduct and the need to impose a just punishment.
As you know, I have sought and received a pre-sentence report in this matter. In that report the assessing officer, Mr Richard Temple-Camp, indicated that you are not considered a suitable candidate for a Community Correction Order for the following reasons:
"Mr Pham is currently enrolled in a training program as part of his employment development. This program is referred to in the letter from Mr Hartney dated 28/08/2013. The training program takes place in Sydney for one week on a monthly basis. The standard terms of a Community Correction Order (CCO) stipulate any travel outside the State of Victoria must be approved by Community Correctional Services (CCS).
Mr Pham was initially advised that this travel could not be guaranteed. The assessing officer then contacted Box Hill CCS, the office where
Mr Pham’s CCO would be supervised, to gauge the attitude towards such travel. The General Manager of CCS for the East Metropolitan Region Ms Carol Smith was consulted and it has been advised that such approval would not be granted.
Therefore, if a CCO was imposed and Mr Pham wanted to continue travelling interstate for this training, he may be required to return the CCO to Court on application to vary or cancel.
It is also noted that if a CCO was imposed, Mr Pham would only be in the state of Victoria for three-quarters of the time. This would heavily impact the ability of CCS to effectively monitor Mr Pham for the duration of his CCO".
Mr Richard Temple-Camp gave evidence at a further hearing of the plea on
11 September 2013. He said that the Community Correctional Services considers many factors in granting permission travel. One of the considerations is whether the defendant is complying with the order. In cross-examination Mr Temple-Camp conceded that you could be required to provide confirmation of return airfare tickets, the address where you would be staying in Sydney and the telephone numbers of your employers in New South Wales.
On your behalf, your solicitor contacted Mr Jakimuik from Lance Dixon Land Rover. Mr Jakimuik advised that it might be possible to defer your monthly Sydney training for up to three (3) months (which would require a request on behalf of Mr Jakimuik to the Sydney operators).
Having considered the evidence given by Mr Temple-Camp, I have decided to convict you and place you on a Community Correction Order for 18 months. The decision by Community Corrections to allow you to travel to Sydney will depend on your compliance with the conditions of the order. If you do not comply with the terms of the Community Correction Order, the Court will not look favourably upon any application to vary the order.
Could you please stand? Thank you.
I need to explain to you the terms of the Community Correction Order, as I can only make it if you agree. If I make this order, there are certain things that you must do, and certain things you must not do. What you must do is:
· Within two days, you must go to the Community Correction Centre listed on the notice you will be given before you leave today;
· Next, you will be allocated a Community Correction Officer who will look after you. You must report to that officer when you are told to do so;
· You must also tell that officer if you change your address or if you get a job or change that job;
· You must also do what the Community Correction Officer tells you to do.
What you must not do during the order is:
· Commit any offence which could result in a prison sentence; and
· You must not leave Victoria during the order without the permission of the Community Correction Officer.
I am also going to place some extra conditions on your order. Those conditions will be that:
· During the order you will be under the supervision of a Community Correction Officer;
· You will perform unpaid community work in the amount of 180 hours over the 18 months;
· You will undergo assessment and treatment as to your mental health;
· You will undergo programs or courses aimed at addressing the factors relating to your offending behaviour, such an anger management program.
If you do not keep all of these conditions, you can be charged with an offence and you will have to come back to court. If you commit another offence, apart from not keeping the conditions, that will breach this order. That will almost certainly mean that you will receive a term of imprisonment. So do you understand what will happen if you commit another offence during the 18 months of the order, or if you do not keep the conditions?
ACCUSED: Yes, I understand.
The prosecutor has sought ancillary orders for the disposal of property. That application was not opposed. I make an order pursuant to s.78(1) of the Confiscation Act (1977) for the forfeiture to the State of the property referred to in Schedule 1 of the Order I have signed this day.
I order that you be convicted of Charge 1 and ordered to serve a Community Correction Order for a period of 18 months, containing all the conditions I have mentioned.
Section 6AAA of the Sentencing Act (1991) requires me to state the sentence and non-parole period that I would have imposed but for the plea of guilty. Your plea has saved time, expense and the need for witnesses to give evidence, and is reflective of remorse. But for your plea of guilty, I would have sentenced you to a term of imprisonment of 18 months with a non parole period of 12 months.
MS RUDDLE: Your Honour, if I may, whilst Your Honour mentioned the condition not to travel in Your Honour's initial comments, you failed to list it in - formally announce it as one of the conditions that would be put on the community corrections order when seeking Mr Pham's consent to that order. So it is the provision under s.45(1)(e).
HER HONOUR: You may take a seat, Mr Pham, for a moment. I read out in my charge "You must not leave Victoria during the order without the permission of a community corrections officer". Is that what you are referring to?
MS RUDDLE: Yes, Your Honour. I did not - when I made my note it did not seem that you had read that component.
HER HONOUR: I had two sections; what you must do is and what you must not do during the order is you must not leave Victoria during the order without the permission of the community corrections officer.
MS RUDDLE: I am sorry, Your Honour, just when making my notes I did not catch it.
HER HONOUR: Yes, very well. And it is also in the order.
MS RUDDLE: Yes, Your Honour.
HER HONOUR: Thank you.
MR McCLURE: Thank you, Your Honour. That looks to be in order.
HER HONOUR: Yes, if you could ask Ms Pham to read it.
MR McCLURE: Mr Pham has read that, Your Honour.
HER HONOUR: Yes. Do you want to leave the dock and come down and sign it at the Bar table?
(Orders signed and acknowledged.)
MR McCLURE: Thank you, Your Honour.
HER HONOUR: Yes, I have signed that order. Take a copy of that - Mr Pham will take a copy of that order with him too.
MR McCLURE: Thank you, Your Honour.
HER HONOUR: Are there any further matters?
COUNSEL: No, Your Honour.
HER HONOUR: Thank you. I will leave the Bench.
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