Wood CJ at CL at 1; Hislop J at 46; Johnson J at 47
DECISION:
1.Crown appeal allowed; 2.Quash the sentence below, and in lieu sentence the Respondent to imprisonment for 18 months, with a non-parole period of 12 months, each to date from 8 October 2004; 3.Direct the Respondent's release on parole on 7 October 2005.
CATCHWORDS:
CRIMINAL LAW - Crown appeal against sentence - plea of guilty - one count escape lawful custody - whether sentencing Judge took into account that the respondent was subject to a deportation order - whether sentence manifestly inadequate - whether objective seriousness of offence, general deterrence and principle of totality taken into account.
1 WOOD CJ at CL: This is an appeal by the Director of Public Prosecutions against the sentence imposed by his Honour Judge JX Gibson QC, following the Respondent’s plea of guilty to one count of escaping lawful custody, an offence for which a maximum penalty of imprisonment for 10 years is prescribed (Crimes Act 1900 s 310D(a)).
2 The sentence which was imposed on 22 October 2004 was one of imprisonment for 18 months commencing on 15 June 2004, and expiring on 14 December 2005, with a non-parole period of 12 months, also commencing on 15 June 2004. The Crown appeal is based upon the practical effect of that sentence when considered in the light of the Respondent's existing custodial position, arising by reason of his prior criminality.
Facts
3 On 13 February 1998, the…
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.
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Details
AGLC
R v Pham [2005] NSWCCA 94
Case
[2005] NSWCCA 94
Decision Date
CaseChat Overview and Summary
In the matter of R v Pham, the respondent pleaded guilty to an offence of escaping lawful custody. The Crown sought to appeal the sentence handed down by the lower court. The appeal raised questions about the sentencing process, specifically whether the sentencing judge had adequately considered certain factors in determining the appropriate sentence for the respondent. These factors included the respondent's status as a subject of a deportation order and the objective seriousness of the offence. The appeal also questioned whether the sentence was manifestly inadequate and whether the principles of general deterrence and totality were properly applied.
The legal issues for the court to determine were whether the sentencing judge had failed to take into account the relevant considerations when imposing the sentence, and whether the sentence was manifestly inadequate. The court had to assess whether the sentence imposed by the sentencing judge was appropriate in all the circumstances, taking into account the objective seriousness of the offence, the need for general deterrence, and the principle of totality.
The court found that the sentencing judge had not adequately considered the fact that the respondent was subject to a deportation order, which was a relevant factor in determining the appropriate sentence. The court also found that the sentence imposed was manifestly inadequate, as it did not adequately reflect the objective seriousness of the offence, the need for general deterrence, or the principle of totality. The court held that the appeal should be allowed, and the matter should be remitted to the sentencing judge for re-sentencing.
The final orders of the court were that the appeal be allowed, and the matter be remitted to the sentencing judge for re-sentencing. The court did not specify what the appropriate sentence should be, leaving that decision to the sentencing judge upon re-sentencing. The court emphasised the importance of considering all relevant factors in determining an appropriate sentence, and the need for sentences to adequately reflect the objective seriousness of the offence, the need for general deterrence, and the principle of totality.