R v Pham

Case [1996] QCA 3 6 February 1996

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IN THE COURT OF APPEAL	[1996] QCA 003
SUPREME COURT OF QUEENSLAND	C.A. No. 435 of 1995
Brisbane
Before	Fitzgerald P. Davies J.A. Mackenzie J.
[R. v. Pham]

T H E Q U E E N

PHUC MINH PHAM (Applicant)

FITZGERALD P.
DAVIES J.A.

MACKENZIE J.

Judgment delivered 06/02/1996

REASONS FOR JUDGMENT - THE COURT

Application for leave to appeal against sentence granted.
Appeal against sentence allowed.
Sentence imposed below set aside and a sentence of imprisonment for one year substituted.

CATCHWORDS: SENTENCE - sexual offence - whether sentence excessive in light of the fact that offence was an isolated incident committed by a comparatively young offender - applicant convicted of indecent dealing of a girl under the age of 12 years - applicant 24 years old, owned own business with debts to bank - applicant in no special position of trust in relation to the complainant and no force or threats of any kind were directed upon or towards the complainant.

Counsel:	S. Hamlyn-Harris for the Applicant M. Byrne Q.C. for the Respondent
Solicitors:	Legal Aid Office for the Applicant Queensland Director of Public Prosecutions
Date(s) of Hearing:	31 January 1996
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 06/02/1996

The applicant has applied for leave to appeal against a sentence imposed in the District Court at Brisbane on 30 October 1995. On that date, he was convicted after a trial of indecent dealing with a girl under the age of 12 years on 31 October 1994 and was sentenced to imprisonment for two years.

The applicant was born on 15 October 1970 and was aged 24 years when he committed the offence and 25 years when he was sentenced. He has no prior criminal history.

On the date of the offence, the applicant called the complainant into his fruit shop, gave her some chocolates and a drink and, when no-one else was in the shop, pushed her into the back section of the shop. A customer came in whom the applicant served before returning to the complainant in the rear of the shop. He kissed her on the lips and cheek, pulled her pants down, pulled his own jeans down to his ankles, showed her his penis, placed her hand on his penis, ejaculated, then hugged the complainant and told her that he loved her. After the incident, the complainant became very insecure and somewhat withdrawn.

Before this Court, reliance was placed upon the applicant’s age and lack of criminal history, that he was in business in his own fruit shop with debts to banks, and that he lived with his brother and parents who somewhat relied on his income. The latter matters seem to us of no significance whatever. It was also said for the applicant that “... he was not in any special position of trust in relation to the complainant”, and that the offence “... was a single isolated act, not involving any touching of the girl’s private parts (although he pulled her pants…

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 R v Pham

Details

AGLC: R v Pham [1996] QCA 3
Case: [1996] QCA 3
Decision Date: 6/02/1996

CaseChat Overview and Summary

In R v Pham, the applicant, Phuc Minh Pham, appealed against a two-year imprisonment sentence imposed following his conviction for indecent dealing with a girl under the age of 12 years. The Supreme Court of Queensland Court of Appeal was tasked with determining whether the sentence was excessive given the nature of the offence and Pham's background. Pham, who was 24 at the time of the offence and 25 at the time of sentencing, had no prior criminal history. He owned a fruit shop, which he operated with his parents and brother, and had debts to banks. The Court of Appeal considered Pham's age, the absence of a special position of trust, and the fact that the offence was an isolated incident without substantial force or threats.

The primary legal issue before the Court of Appeal was whether the two-year imprisonment sentence was excessive, considering Pham's age, lack of criminal history, and the circumstances of the offence. The Court acknowledged the trial judge's view of Pham's behaviour as revolting and noted that Pham had exhibited no remorse and falsely denied his guilt, compelling the complainant to testify. The Court examined sentencing trends for comparable offences and recognised the hardening attitude of the courts towards sexual offences against children. The Court also noted that Pham's counsel had advocated for a sentence in the order of the one imposed.

The Court of Appeal determined that while imprisonment was warranted for Pham's offence, a two-year sentence for a single offence by a comparatively young first offender was excessive. The Court believed that a one-year imprisonment sentence would have been more appropriate, given the overall sentencing pattern for such offences. The Court granted Pham's application for leave to appeal, allowed the appeal, set aside the original sentence, and substituted a sentence of imprisonment for one year.

Orders