R v Jame Phan (also known as Van Linh Dang)

[2016] NSWSC 483

Supreme Court

New South Wales

Medium Neutral Citation:	R v Jame PHAN (also known as Van Linh DANG) [2016] NSWSC 483
Hearing dates:	18 March 2016
Date of orders:	21 April 2016
Decision date:	21 April 2016
Jurisdiction:	Common Law - Criminal
Before:	Mathews AJ
Decision:	1. Sentenced to an aggregate term of imprisonment consisting of a non-parole period of 14 years, commencing on 12 October 2013 and expiring on 11 October 2027, together with a balance of term of six years, commencing on 12 October 2027 and expiring on 11 October 2033. 2. The first date on which the Offender will be eligible for release on parole is 11 October 2027.
Catchwords:	CRIMINAL LAW – Sentencing – murder together with four offences of aggravated armed robbery – felony murder and accessorial liability – very low level of objective culpability for murder – offender with difficult background – a number of relatively minor previous offences – four robberies committed within one week – aggregate sentence imposed for all five offences.
Legislation Cited:	Crimes Act 1900, s.97(2) Crimes (High Risk Offenders) Act 2006 Crimes (Sentencing Procedure) Act 1999, s.21A
Cases Cited:	JM v R [2014] NSWCCA 297 Muldrock v R [2011] HCA 25; (2005) 228 CLR 357 R v Jacobs and Mehajer (2004) 151 A Crim R 452
Category:	Sentence
Parties:	Office of the Director of Public Prosecutions (Crown) Jame PHAN (also known as Van Linh DANG) (Offender)
Representation:	Counsel: S Herbert (Crown) S Corish (Offender) Solicitors: Director of Public Prosecutions (Crown) Purcell Lawyers (Offender)
File Number(s):	2013/307179

REASONS FOR SENTENCE

1. MATHEWS AJ:

Introduction

2. On 8 October 2015 Lance Murdoch and Van Linh Dang (who prefers to be called Jame Phan) were indicted on two charges: first that on 12 October 2013 they murdered Kamran Yousaf; second, that on the same date they robbed Dianne Torro of a sum of cash while armed with a dangerous weapon, namely a pistol. Mr Murdoch pleaded not guilty to both charges. Mr Phan pleaded not guilty to the charge of murder, and guilty to the charge of armed robbery. A jury was duly empanelled, and a trial proceeded in relation to the charges to which the particular accused had pleaded not guilty. On 29 October the jury returned a verdict of guilty in relation to each of those charges.

3. Accordingly, both men are to be sentenced in relation to those charges. However the sentencing proceedings in relation to Mr Murdoch have been adjourned for a lengthy time. Accordingly, all parties have agreed that it would be appropriate to continue with the sentencing of Mr Phan, as quite different considerations apply in relation to each of the two men.

4. Mr Phan had already pleaded guilty to three further charges of robbery whilst armed with a dangerous weapon in relation to offences which were committed on 5, 7 and 10 October 2013. He is accordingly to be sentenced in relation to all five offences.

Circumstances of the Offences

5. I shall first describe the two offences which were the subject of the trial. They arose out of the same incident, which took place at the Villawood Fruit Market on the afternoon of Saturday 12 October 2013. The deceased, Mr Yousaf, was an employee at the store. At about 3.30 that afternoon two men arrived at the store, entering through the rear lane. They had surgical masks covering the lower part of their faces and were wearing hooded tops, with the hoods covering their heads, so that most of their faces were concealed. They were also wearing high visibility yellow vests, of the type that workmen often wear. One of them was wielding a hammer, and the other a small silver pistol. Two employees of the market were having lunch in the back lane, outside the rear entrance to the shop, when these two men approached them and demanded to be taken inside and to the till.

6. The following account is a very brief encapsulation of a great deal of detailed evidence which was given at the trial by a number of witnesses, who were store employees, people who worked nearby, and members of the public who happened to be in or near the store at the time. As is often the case in relation to events which happen quickly and unexpectedly, there were a number of differences in the details of their descriptions. However there was general agreement as to the overall course of events after the two men came into the store. One thing we now know with absolute certainty is that the man with the hammer was the offender Phan; and the gun man, as the jury’s verdict confirms, was the offender Lance Murdoch. Henceforth, therefore, I will be referring to them by name.

7. Having entered the store through the rear entrance, the two men demanded to be taken to the till. Once there, Mr Murdoch demanded that one of the employees give him the till. She refused to do so. Very shortly afterwards Mr Phan jumped into the other till register area and reefed out one of the two tills. He was running towards the rear of the store, holding both the till and the hammer, when Mr Yousaf grabbed him from behind. At one stage during the confrontation which followed, Mr Phan struck Mr Yousaf’s forehead with the hammer, causing a laceration to the left side of his head. Unfortunately for Mr Yousaf, that was the least of the injuries he sustained during this episode. They were already in the rear lane outside the shop, and Mr Yousaf was holding Mr Phan from behind, with his arms around his waist, when Mr Murdoch, who had run on ahead, returned and fired a shot at him. At that time Mr Phan was leaning forwards and down, so that the upper part of Mr Yousaf’s body was exposed from the front. As the post mortem report later showed, the bullet entered his right, mid abdomen and caused extensive internal injuries. It was estimated to have been fired at very close range, namely from a distance of between 10 centimetres and a metre.

8. In spite of the seriousness of this injury, Mr Yousaf remained upright for some little time after this, and maintained his grip on Mr Phan. He was assisted in this by a customer who had been in the store, and also by one of the other workers. Mr Yousaf was trying to get Mr Phan back inside the shop when Mr Murdoch, who had run down the lane away from the shop, returned and shot at him again. On this occasion the bullet entered Mr Yousaf’s lower back, passed through soft tissue, and lodged within the bone of the mid sacrum. These two wounds, which caused extensive internal bleeding, constituted the immediate cause of Mr Yousaf’s death.

9. Mr Phan had been forced back inside the store, and the rear shutter door had been closed, when Mr Yousaf collapsed. All subsequent attempts to revive him were unsuccessful. By that time Mr Phan had been tied up and was lying on the ground. The police arrived shortly afterwards and Mr Phan was arrested and taken into custody. He declined to enter into an interview with the police.

10. As to Mr Murdoch, after shooting Mr Yousaf the second time, he ran down the rear lane, but returned shortly afterwards and fired a third shot, which did not strike anyone. He then ran away from the area. He was not arrested until some time later.

11. The issues raised at the trial were quite different in relation to each of the two accused. The sole issue in relation to Mr Murdoch was that of identification. The jury’s verdict means that it found this matter proved to the requisite degree.

12. Identification, of course, was never an issue in relation to Mr Phan, who was apprehended at the scene. Hence his plea of guilty to the charge of armed robbery. His defence to the murder charge, was, effectively, that the Crown could not prove that he knew that Mr Murdoch would fire the gun. Therefore he could not bear accessorial liability for the killing of Mr Yousaf. Mr Phan was initially represented at the trial by counsel, but towards the end of the trial he took it upon himself to sack his counsel, despite being warned that this would leave him, at that late stage, without legal representation for the remainder of the trial. He did not give evidence in his own case, nor did he address the jury at the end of the trial. Nevertheless, the jury was thoroughly apprised of the issues in relation to the case against him.

13. At this point it is pertinent to refer to the issues which were left to the jury in relation to the murder charge against Mr Phan, for this is highly relevant to his level of culpability.

14. There were two bases upon which the jury could have found Mr Phan guilty of murder. They were: first, that he was part of a joint enterprise with Mr Murdock to rob the store, and he foresaw the possibility of the gun being discharged, thereby causing death or grievous bodily harm; and secondly that it was a felony murder (or constructive murder), in that the gun was fired during or immediately after the commission of the offence of robbery whilst armed with a dangerous weapon, being an offence punishable by imprisonment for 25 years.

15. In the event, the questions asked by the jury made it clear which scenario they accepted in this case. It was an extremely conscientious jury, who deliberated for two days before reaching its verdict. In the meantime they asked a number of questions from which it became obvious that they were concerned about whether the Crown had to prove that Mr Phan foresaw the possibility of Mr Murdoch using the gun to kill or injure someone, or whether it was sufficient to prove that he foresaw the possibility of the gun being fired for other purposes, such as a warning shot. Given that an intention to kill or inflict injury is not an essential element in felony murder, the jury was told that Mr Phan could be guilty of murder notwithstanding that he did not foresee the consequences of the firing of the gun, so long as he foresaw the possibility of the gun being discharged. Very shortly after being given this direction, the jury returned with a verdict of guilty against both men.

16. Given this sequence of events, I have no doubt that the jury convicted Mr Phan on the basis that he foresaw the possibility of Mr Murdoch firing the gun at some stage during or immediately after the armed robbery, but did not foresee the possibility of someone being injured or killed as a result. This very significantly reduces his culpability for this offence, as I shall discuss a little later.

17. Mr Phan is also to be sentenced for the three offences of robbery whilst armed with a dangerous weapon which were committed in the week preceding the offences which were the subject of the trial. I shall briefly set out the facts of each of them.

18. The first in point of time took place on 5 October 2013. At 10.00 that evening Mr Phan and a co-offender entered the Subway Restaurant in Fairfield East. The co-offender was armed with a small hand pistol. Both men had their faces covered by masks. The co-offender demanded to be shown where the till was. He then took the entire contents of the till, being an unspecified amount of cash, and the two of them ran from the premises and left the area. The entire offence was recorded on CCTV within the premises.

19. The next offence took place two days later, on 7 October 2013. At 3.26 that afternoon Mr Phan and a co-offender entered the Food Works shop in Homebush. Both had had their faces covered by what was described as a ‘surgical mask’, and the co-offender was carrying a small pistol. The co-offender demanded to be given the cash. An employee opened the cash register, and Mr Phan removed the cash from it while the co-offender stole a quantity of cigarettes. The two of them then left. The employee estimated that approximately $2,000 in cash was stolen.

20. The third offence took place on 10 October 2013. At 9.30 that evening Mr Phan and a co-offender entered the Spring Gardens Chinese Restaurant in Georges Hall. Yet again the co-offender was carrying a small hand gun and their faces were covered by masks. The co-offender demanded to be shown the money. Mr Phan then removed the two cash register trays and the offenders ran from the restaurant. The empty cash register trays were later found in Mr Phan’s home, under his bed. An estimated $900 - $1,000 in cash was stolen in this offence.

21. As can be seen, there is a striking similarity between the circumstances of each of these offences. Apart from one significant difference, they are also very similar to the Villawood Fruit Market robbery, at least up to the point when Mr Phan was apprehended by the extremely courageous Mr Yousaf. The additional factor in the last robbery is that Mr Phan himself was armed with a hammer on that occasion. In the previous robberies the only apparent weapon was the pistol which was carried by the co-offender. One of the witnesses described Mr Phan as also carrying a pistol during one of the earlier robberies, but this was not borne out by the CCTV footage.

Objective Seriousness of these Offences

22. In relation to the murder of Mr Yousaf, It is accepted that Mr Phan’s conviction of this offence was almost certainly on the basis of constructive murder. The Crown referred to R v Jacobs and Mehajer (2004) 151 A Crim R 452, in which the Court of Criminal Appeal said that constructive murder should not be regarded as less serious, and thereby attracting a lighter total sentence or non-parole period than other categories of murder. The Court went on to say that, as in all categories of murder, there are degrees of seriousness of constructive murder.

23. That is undoubtedly the case, but in Mr Phan’s case there is a further layer to be considered, namely that he is only liable for Mr Yousaf’s murder by reason of accessorial liability. The sequence of events at the trial clearly showed, as already mentioned, that the jury convicted Mr Phan on the basis that he foresaw the possibility of the gun being discharged by Mr Murdoch, but did not foresee the possibility of someone being injured or killed as a result. This is an extremely important matter on sentence, as it very significantly reduces Mr Phan’s culpability for the murder of Mr Yousaf. It means that, in his case, the killing was, in a real sense, an extension of the offence of armed robbery, albeit an extension which involved the taking of an innocent human life, and was therefore of an inherently extremely serious nature.

24. In relation to the offence of murder there are no aggravating or mitigating factors under s.21A (2) or (3) of the Crimes (Sentencing Procedure) Act 1999 (“the Act”) which are not inherent in the nature of the offence. Certainly the killing was committed in company, in that it was committed by Mr Phan’s co-offender. But it was this very factor which made Mr Phan responsible in law for this offence. Therefore it cannot also be used as an aggravating factor in his case.

25. In all the circumstances I consider that in Mr Phan’s case the objective criminality involved in this offence is of a very low order for the crime of murder. His guilt of this offence is based on two legal constructs, namely felony murder and accessorial liability. I can safely say that in my long experience of murder trials his is the lowest level of culpability that I have ever encountered.

26. The situation in relation to the four armed robbery charges is quite different. As the Crown rightly submits, the level of pre-planning for each of these offences was high. On each occasion the two offenders were wearing masks, and the co-offender was armed with a pistol. There is some disparity between the description of the firearm in the facts submitted by the Crown and those relied on by the defence, but I do not regard this as a matter of particular significance.

27. I turn to the aggravating factors specified in s. 21A (2) of the Act, in relation to the robbery offences. The factors which are relevant here, which are not inherent in the nature of the offences, are as follows. In relation to all offences, s. 21A(2)(e) applies, in that they were committed in company. As the Crown submissions point out, on each occasion the two offenders acted in a coordinated manner, confronting the bystanders and victims with the force of their number, often with one controlling the witnesses while the other removed the property. In relation to the robbery at the Villawood Fruit market on 12 October, two further factors apply: first, pursuant to s.21A(c), the offence involved the threatened use of a weapon, namely the hammer wielded by Mr Phan. This is not inherent in the nature of the offence, as the aggravating factor which brought the robbery offences within the purview of s.97(2) of the Crimes Act 1900 is the fact that a firearm was involved. Also, pursuant to s. 21A(ea), the offence was committed in the presence of a child under 18. An 11 year old girl was present in the shop during this robbery. She gave evidence by video link in the trial.

28. It is to be remembered that the four offences to which Mr Phan has pleaded guilty are of aggravated armed robbery, and therefore the midline of objective criminality in relation to these offences is of a higher order than for non-aggravated armed robbery. The amount of money stolen on each occasion was not great. In all the circumstances I would place the first three offences below the midline of objective criminality for aggravated armed robbery. The fourth offence is slightly more serious than the others, for reasons already given.

29. Mr Phan pleaded guilty to all armed robbery charges, and is therefore entitled to a significant discount on sentence in relation to those offences. I will be discussing this shortly. In the meantime, I turn to say something about his background.

Mr Phan’s Background

30. This information principally derives from the report of the forensic psychologist, Dr Peter Ashkar, dated 15 March 2016, which was tendered by the defence. Dr Ashkar had interviewed Mr Phan at the Long Bay Correctional Centre on 11 March 2016. He had previously been provided with relevant information relating to these offences and Mr Phan’s criminal record.

31. Mr Phan is now aged 30, having been born on 14 November 1985. He is Vietnamese by birth, and migrated to Australia with his family when he was about five years old. His father was apparently a violent man who gambled and abused alcohol, and his parents separated when he was six or seven years old. Between the ages of nine and sixteen, he lived with a stepfather who was also violent, towards both himself and his mother. As a result he stayed away from home whenever possible. He described his mother as a vulnerable woman who did not speak English, and lived on a pension. He gets on well with her and with his three siblings. His schooling was difficult, as his English was limited. Also the family moved frequently and he attended different schools. In years 7 and 8 he gravitated towards an antisocial peer group and began to experiment with alcohol and illicit drugs. He left school after year 9 or 10 and he worked for some years in a number of different jobs, including being a receptionist in a brothel. Subsequently he began to use heroin and methamphetamine, and has not worked in paid employment since. The robbery offences were committed in order to obtain money to support his drug addiction. Mr Phan expressed considerable remorse for his offending behaviour, particularly the killing of Mr Yousaf. Dr Ashkar described him as starting to cry when describing the effect of Mr Yousaf’s death on his family.

32. The doctor assessed Mr Phan as being of normal intelligence, although his verbal skills were weak, probably due to English being his second language. On clinical examination the doctor could find no evidence of serious personality pathology, and he doubted whether Mr Phan would satisfy the diagnostic criteria for Antisocial Personality Disorder. In general the doctor considered that, with appropriate intervention and support, the circumstances suggest a favourable prognosis in terms of Mr Phan’s eventual rehabilitation.

33. Mr Phan has a criminal history going back to early 2002, when he was 16 years old, when he was placed on probation for two years in relation to several offences. Other than driving offences, he had no further brushes with the law until 2010. In 2010 and 2011 he came before Liverpool Local Court on four separate occasions for offences of shoplifting and larceny, for each of which a fine was imposed. In September 2013 – the month before the current offences were committed - he came before the Bankstown Local Court three times, in relation to charges of possessing a prohibited drug, larceny, and being in possession of stolen goods. Again a fine was imposed on each occasion.

30. In summary, therefore, the offender has a fairly lengthy criminal history, although all for relatively minor offences, as indicated by the fact that he has never been in prison before. As Dr Ashkar observed, most if not all of these offences were committed in order to feed his drug dependency.

Accumulation of Sentences

35. There are, in all, five offences for which Mr Phan is to be sentenced. A separate sentence needs to be specified in relation to each of those offences. For although there were similarities between the four armed robberies, they were unrelated in point of time and each involved different victims. Similarly, it goes without saying that a separate sentence needs to be imposed for the murder of Mr Yousaf, notwithstanding that it was closely connected with the Villawood Fruit Market robbery. This being the case, it is appropriate, in my opinion, to invoke the provisions of s.53A of the Act, and impose an aggregate sentence of imprisonment for all five offences. That section requires the Court to indicate the sentence it would have imposed in relation to each offence if separate sentences had been imposed (“the indicative sentences”), but it obviates the need to go through the complicated process of creating a cascading sentencing structure, in which each individual sentence is made partially concurrent with and partially cumulative upon other sentences, so as to achieve an overall sentence which is consistent with the principle of totality. Under s.53A that overall sentence will be imposed as the aggregate sentence. I should also indicate that in applying that provision I have taken into account the principles discussed by the Court of Criminal Appeal in JM v R [2014] NSWCCA 297.

36. This takes me to a discussion of the sentences to be imposed in relation to each of the five offences, and to indicate the sentence which I would have imposed in the absence of s. 53A.

Indicative Sentences

37. It goes without saying that the most serious offence is the murder of Mr Yousaf. The offence of murder carries a maximum penalty of life imprisonment with a standard non-parole period of 20 years. Since the High Court judgment in Muldrock v R [2011] HCA 25; (2005) 228 CLR 357, it has been accepted that the standard non-parole period constitutes a guide post rather than a starting point as had previously been considered.

38. For this offence I would impose a sentence of imprisonment for 14 years with a non-parole period of 10 years. The reasons for setting a non-parole period which is well below the standard non-parole period for murder have essentially already been ventilated. Given the fact that this was a constructive murder situation, in which it was the co-offender who inflicted the fatal injuries, Mr Phan’s level of culpability for this offence is of a very low order indeed. In addition I would have found that special circumstances exist which justify a departure from the statutory proportion between the head sentence and the non-parole period, namely the reasonably positive prospects of Mr Phan’s rehabilitation. I will be saying more about this later.

39. The remaining four offences all consist of robbery whilst armed with a dangerous weapon pursuant to s. 97(2) of the Crimes Act 1900. The maximum punishment for this offence is imprisonment for 25 years. There is no standard non-parole period. Each of these offences must be considered separately, notwithstanding the similarities between them. There is, in any event, a difference between the reductions in sentence attributable to Mr Phan’s pleas of guilty.

40. In relation to the robbery of the Subway Restaurant at Fairfield on 5 October 2013, but for the plea of guilty, I would have imposed a sentence of imprisonment of approximately eight years. Mr Phan’s plea of guilty to this offence was entered on 8 May 2015, well before the matter was due to go to trial. Accordingly I would reduce his sentence by 20%, and impose a sentence of imprisonment for six years.

41. Precisely the same considerations apply in relation to the robbery of the Food Works shop on 7 October 2013. The circumstances of the offence were strikingly similar to the earlier robbery, and a plea of guilty was also entered on 8 May 2015. Accordingly I would impose a sentence of six years imprisonment, after deducting 20% from a sentence of approximately eight years.

42. The robbery of the Spring Gardens Chinese restaurant on 10 October 2013 raises slightly different considerations. Although the circumstances of the offence itself were similar to the other robbery offences, on this occasion Mr Phan’s plea of guilty was entered considerably later, on 6 October 2015 when the trial was due to commence. This was very shortly after the Crown had identified the cash trays found beneath Mr Phan’s bed as having been taken during this robbery. Accordingly I would reduce his eight year sentence by approximately 10%, and thus impose a sentence of imprisonment for seven years.

43. Finally I come to the robbery of the Villawood Fruit Market on 12 October. This has the two additional aggravating factors I have already mentioned, namely the fact that Mr Phan was armed with a hammer, and that it occurred in the presence of a child under 18. But for the plea of guilty, I would have sentenced Mr Phan to imprisonment for approximately nine years for this offence. The guilty plea was entered early, on 8 May 2015, and accordingly I would reduce the sentence by approximately 20%, and impose a sentence of imprisonment of seven years.

The Aggregate Sentence

44. At this point I turn to discuss the aggregate sentence to be imposed. This is designed to take into account the criminality involved in all five offences, according to the principle of totality. In determining this matter it is also appropriate to have regard to the purposes of sentencing as set out in s 3A of the Act. To summarise the seven purposes set out in that provision, they are: to punish the offender and make him accountable for his actions, to protect the community, to deter the offender and others from committing similar offences, to promote the rehabilitation of the offender, to denounce the conduct of the offender and to recognise the harm done to victims and the community. Some of these point in different directions, and thus need to be balanced against each other. By way of example, the principles of deterrence generally point towards a harsher sentence, whereas the promotion of rehabilitation will normally lead to a reduction, at least in the non-parole period.

45. I have already discussed the criminality involved in each of the five offences. They all took place within a relatively short time frame, between 5 and 12 October 2013. The robberies were all committed in order to feed Mr Phan’s drug addiction, and the murder would not have occurred in the absence of the fourth and last robbery.

46. Mr Phan himself has had an extremely difficult life: coming to a new country, and then suffering from the emotional and physical abuse of both his father and his step-father. Certainly he has committed a number of offences in the past, but none of a very serious nature. He has been addicted to drugs since an early age, and it is most likely that his previous offences are all related, in one way or another, to his drug taking. His mother wrote a letter to the Court, which was admitted into evidence on sentence, in which she said that, since being imprisoned for these offences, he has stayed away from drugs. Upon his release she said that she will be happy for him to live with her, and she will do her best to help him stay away from drugs.

47. All the circumstances point to the proposition that, if Mr Phan can refrain from reverting to substance abuse, he is unlikely to re-offend. This being the case, rehabilitation becomes a paramount consideration in his case. This in turn has a significant effect upon the appropriate non-parole period. In my view, the unusual demands of rehabilitation in his case constitute special circumstances which justify a departure from the statutory proportion between the overall sentence and the non-parole period.

48. Mr Phan has been in custody since 12 October 2013 in relation to these offences, and his sentence will accordingly commence on that date.

49. In all the circumstances I propose to impose an aggregate sentence of imprisonment for 20 years with a non-parole period of 14 years.

50. I am required to warn Mr Phan, which I now do, of the existence of the Crimes (High Risk Offenders) Act 2006, and the fact that that Act applies to the offence of which he has been convicted, and for which he is about to be formally sentenced. At some future point of time, an application may be made that, notwithstanding the completion of his sentence, he nevertheless ought be detained in ongoing custody or else ought be the subject of an extended supervision order, impacting on his liberty.

51. Mr Phan, I sentence you to an aggregate term of imprisonment consisting of a non-parole period of 14 years, commencing on 12 October 2013 and expiring on 11 October 2027, together with a balance of term of six years, commencing on 12 October 2027 and expiring on 11 October 2033.

52. The first date on which you will be eligible for release on parole is 11 October 2027.

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Decision last updated: 21 April 2016