R v Pham - [2025] NSWSC 180

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Pham [2025] NSWSC 180
Hearing dates: 28 February 2025
Date of orders: 6 March 2025
Decision date: 06 March 2025
Jurisdiction: Common Law
Before: Rigg J
Decision:
Mr Pham is sentenced to 18 years imprisonment commencing on 23 April 2023 and concluding on 22 April 2041, with a non-parole period of 12 years commencing on 23 April 2023 and concluding on 22 April 2035.

Catchwords:
CRIMINAL LAW – SENTENCE – Murder – Joint criminal enterprise to kill – offender not present at the scene of the murder – offender conveyed shooter and getaway driver to the car used by them – offender drove the shooter and getaway driver away from another location after the crime – offer and provision of money to offender – mild intellectual disability contributed to involvement in joint criminal enterprise

Legislation Cited:
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Britton v R [2024] NSWCCA 138
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156

Category: Sentence
Parties: Rex
Le Nghia Pham (Offender)
Representation:
Counsel:
C Taylor (Crown)
M Avenell SC (Offender)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Nyman Gibson Miralis (Offender)

File Number(s): 2023/130026
Publication restriction: Statutory prohibition on the publication of the name of the child present at the scene and any material that might identify them. See s 15A Children (Criminal Proceedings) Act 1987 (NSW).

jUDGMENT

The offender Le Nghia (Andy) Pham is to be sentenced for the murder of Taha Sabbagh, committed on 2 March 2023. He stood trial before a jury. The jury found him guilty of the offence on 5 December 2024.
The offence of murder carries a maximum penalty of life imprisonment and a standard non-parole period of 20 years.

The circumstances of the offence

The deceased was shot outside the Elite Fight Force gym at Carlingford Road, Sefton at about 6:30 am on 2 March 2023, in the presence of a child. He was seated in the driver’s seat of his car and the child watched helplessly from the carpark, screaming. The shooter was masked. The number of shots, persistence of the shooter and the position of the last shot fired into the deceased clearly indicate an intention to kill. He was killed by the shots fired into him and emergency services were able to offer no assistance.
The deceased regularly drove to the gym for scheduled boxing lessons for the child. There is no known motivation for his murder. Police were able to discern no reason at all for Mr Sabbagh to be targeted. His brother gave evidence of his devoted and quiet family life, prosocial connections and stable employment.
The innocuous nature of Mr Sabbagh’s attendance at the gym, in the context of this investigation, led the police to believe and the Crown to suggest that there was a possibility that the deceased was not in fact the intended target of the shooting. Although the similarity of the deceased’s vehicle with that of the owner of the gym caused the police to contemplate that the gym owner may have been the intended target of the shooting, there was no evidence of any motive for that man to be killed either.
The shooter was with a driver. The vehicle from which the shooter emerged to kill the deceased, and into which he ran once he had done so, was moving during the course of the shooter’s actions. Once the shooter returned to the vehicle it drove off quickly. It travelled to a car parked some blocks away, which had been left there on 24 February 2023. The car which had left the gym was set on fire, and the second car was driven by the shooter and the shooter’s getaway driver to a unit complex in Bankstown.
This offender was not the shooter, nor the shooter’s driver. Early on the morning of the murder of the deceased he collected those two and conveyed them to a location where the car that they used in the commission of the crime was parked. He then drove to the unit complex in Bankstown and waited over an hour for them. Once they arrived he drove them away from there to somewhere else and then went by himself to his own home. He sprayed bleach in the car he used to drive them.
The jury’s verdict involves satisfaction beyond reasonable doubt that the offender undertook those actions or part of them (commencing prior to the act causing the death of the deceased) as part of a joint criminal enterprise to kill the deceased, or another person resembling the deceased or expected to be present at the gym that morning. The main issue at trial was the offender’s knowledge when he undertook the driving tasks he did. Consistently with the jury’s verdict, he must be taken to have at least driven after the killing, and done something prior to the act causing death, knowing that the others were going to kill someone.
The offender was also responsible for depositing the parked car some blocks from the gym on 24 February 2023. The Crown does not, on sentence, contend that he did so pursuant to the joint criminal enterprise.
There is a factual dispute as to when, after that, the offender gained the knowledge that the shooter and the shooter’s companion were going to kill someone, and whether he additionally conducted surveillance at the gym on 28 February 2023, knowing it was in furtherance of the joint criminal enterprise. I will return to the arguments concerning that issue once more is said regarding the facts surrounding the offence and also the offender, as his personal attributes, in particular his intellectual disability, are relevant to the determination of that dispute.
The car which had been driven to the Bankstown unit complex by the shooter and shooter’s driver was driven out of the underground carpark of that complex close to midnight, soon after an unknown man wearing a mask, and putting latex gloves on his hands, walked towards the driveway. This was not Mr Pham. Two people were captured on CCTV footage pouring accelerant on it in a different suburb, before it was set alight.
On 20 April 2023 the offender booked a flight to Ho Chi Minh city which was due to leave on 23 April 2023. This followed his contact with the Australian Passports Office shortly after 9:30 am on the morning of the murder. This was very soon after he arrived at his own home. He called asking for assistance in obtaining an emergency passport. He did not have a passport (nor evidently any plans to leave the jurisdiction) before the morning of the 2^nd of March 2023. He took steps over the following weeks to obtain a passport, although losing some of the urgency of that morning, and did so.
The offender was arrested at the airport on the 23 April 2023. He was conveyed to Surry Hills police station and engaged in discussion with undercover police officers (UCOs) posing as experienced criminals who had been arrested. He made extensive admissions to those UCOs which were recorded and tendered in the offender’s trial.
The offender’s admission included stating that he knew the two people involved in the shooting, and of his driving them before and after the shooting on the day of the murder. He also had information about the shooting from the news. He thought he had come to the attention of police because two days earlier he had been at the location, waiting for someone to bring him cocaine he had been offered, but that person delayed so he had to keep waiting. He told them about picking up and dropping off the others and driving them afterwards, and about spraying the bleach in the car after he had driven the other two. He spoke about their travel to Vietnam and requests for him to leave Australia.
The offender told the UCOs that he was offered $20,000 for the jobs he did for the others. He told Dr Dayalan, forensic psychiatrist, whose report is tendered on his behalf, that he was offered $10,000. The difference may be attributable to a different perspective in each conversation as to which jobs he was speaking about, dishonest underplaying or overplaying of what he was offered, or poverty of recollection because the offer did not correspond with what he actually received.
Some of this money is likely to have been paid to the offender before his arrest. There was a photograph tendered at trial of him holding up what seems to be at least $1,000, possibly a little more. However there is no evidence supporting the proposition that he was in fact paid, or ever going to be paid, anything like $10,000 or $20,000. The offender trusted the two primary offenders and was seemingly not aware of their use of him to protect themselves. The alleged co-offenders made an arrangement for sufficient funds to pay for Mr Pham’s flight to Vietnam.
Apart from involving an intent to kill, the shooting was clearly planned. The thought through parking and destruction of multiple vehicles supports this, as well as the disguise of the shooter, the use of cloned plates, and the co-ordination of the jobs undertaken by the offender. This does not mean the offender was involved in the planning.
The objective evidence relevant to the offender’s actions prior to the date of the murder includes CCTV footage supported by telephone activity of him dropping off the car that was left a few blocks from the gym, on 24 February 2023. The offender walked around the area, undisguised, and used his own telephone to call an Uber to leave. Although the presence of this vehicle at this location did in fact assist the alleged co-offenders on the morning of the murder, the Crown does not contend that this offender was yet party to a joint criminal enterprise to murder when he took this action.
CCTV footage from 28 February 2023 depicts the offender arriving in the vicinity of the gym at about 5 am and parking his car adjacent to the driveway near the gym at which the deceased was shot, in a position from which he would have had a clear view of the gym’s carpark, at about 6 am. At 6:30 am the deceased and the child with him on the day of his death entered the gym carpark. The deceased waited in his car while the child entered the gym. After a period of time the child came back to the car and the deceased drove out of the gym carpark at 7:37 am. CCTV footage and telephone evidence demonstrated that the offender stayed in the location from which he could see the gym carpark until he left at 8:38 am.
The offender referred to the events of this morning a number of times in his discussion with the UCOs after his arrest. He stated that he was waiting in the area near the gym expecting someone to bring him cocaine, but the person did not come.
No other person responsible for the death of Mr Sabbagh has been apprehended. The communications of the offender with the UCOs after his arrest, and other evidence in the trial, suggests that the others left for Vietnam at a time closer to the murder than the offender, and urged his travel there.
Mr Sabbagh was a married man with three young children at the time of his death. His wife’s family victim impact statement explained in very clear terms the devastating effect on her and their children of this crime. The consequences have been very significant. She has shown immense strength for the sake of the children. No sentence I can impose can be weighed with or compared against that. I do take into account, in the way the law permits, the harm to Mr Sabbagh’s family as an aspect of the harm done to the community.

The offender’s circumstances

The offender’s circumstances are before the Court by virtue of a number of documents tendered by both parties, including criminal and custodial histories tendered by the Crown. There was no oral evidence. A significant amount of the history was provided to the Court through the report of Dr Sathish Dayalan, forensic psychiatrist. As well as an interview with the offender he had taken into account documentation which supports important components of the history provided in his report.
Mr Pham is now 28 years old. He was 26 years old at the time the offence was committed. This is his first time in custody. He has a very limited criminal history which includes no history of violence.
Mr Pham was born prematurely and both his parents abused substances. His mother may have abused substances while pregnant with him. He has a number of half siblings.
He lived on the streets with his father when he was very young. His father was incarcerated for most of Mr Pham’s childhood and from around the age of five years, Mr Pham started living with his mother. He described extreme neglect whilst living with his mother who slept through most of the day. He was not properly enrolled in school and was required to prepare food for himself when he was only five or six years old. He recalled sleeping in “dog beds” in brothels.
At some stage his grandmother took him under her care and was affectionate towards him although his grandfather was physically abusive towards him. He felt abandoned by his parents and confused as to why his grandfather punished him.
The offender’s father was released from gaol when Mr Pham was 17 years old and introduced him to using illicit drugs. The relationship became strained due to the extent of the offender’s father’s abuse of substances. Four years after being released from gaol his father died from substance abuse and suspected depression. The offender felt guilty that he had contributed to his father’s death by severing ties with him, and his own substance abuse escalated in an endeavour to manage his emotional distress.
The offender struggled with learning at school and was placed in special education classes due to learning difficulties. He reported to Dr Dayalan difficulty with processing information, memory and concentration.
Department of Education documents reviewed by Dr Dayalan confirm that Mr Pham was assessed as a child to have mild intellectual disability following psychometric testing. He had performed poorly in object assembly, design and picture completion. Impairment in academic learning and social functioning were noted. Problems with attention and memory were recorded.
The Wechsler Intelligence Scale for Children completed on 6 June 2006 noted a full scale IQ of 52 and a composite score of 66. Impairment in comprehension, reasoning, working memory and executive functions were noted. This was consistent with the results of a previous assessment in 2004 that supported diagnosis of mild intellectual disability.
The offender did not have many friends in primary and early high school and was bullied. He made friends in the later years of high school. He demonstrated poor judgment in friendships and was easily manipulated by his friends. Due to lack of a close relationship with either of his parents, he had craved for a close relationship with his peers.
The offender left school in year 11 as he found it hard to meet the academic demands. He attempted a bricklaying course but did not complete it. He described difficulty with sustaining romantic relationships and employment. At the time of his arrest he was living with his grandmother and working in a casual role in a warehouse. This involved packing, loading and unloading furniture from trucks.
Mr Pham has never lived on his own apart from a brief period of two months. During this two month period he went to his grandmother’s residence for meals. He could not recall paying for household bills during the two months he lived outside of her care.
Periods of low mood were noted intermittently since childhood but Mr Pham denied a history of suicidal thoughts or behaviour. He has a history of abusing alcohol and drugs but not to an extent warranting psychiatric diagnosis.
The offender told Dr Dayalan that he had known those responsible for the murder for a while and trusted them. He maintained that he followed instructions from them and was not aware they were contemplating murder. He stated he agreed because he wanted to help them and they offered $10,000. He had debts from substance abuse and unpaid household bills.
From his review of the offender and documentation Dr Dayalan provided the following opinion:

“Mr Pham had been exposed to multiple neurodevelopmental insults that would have adversely affected the development of his brain. He was born premature by seven weeks and there were health complications soon after birth, requiring intubation and placement in nursery for nearly two weeks. It is suspected that his mother may have been using substances whilst pregnant with him. He had also been subjected to extreme neglect in his early childhood whilst under the care of his mother.
There had been delays in developmental milestones including a severe delay in the development of language. Difficulties with academic learning and impaired social functioning had been identified early in his childhood. Neuropsychometric assessment indicated that he had an extremely low level of intelligence and the results were consistent when repeated. Deficits in comprehension, problem solving, reasoning and judgement were identified. The intellectual deficits impacted on his education, employment, social functioning and ability to live independently. Mr Pham suffers from intellectual disability (ID), mild in severity as per the criteria in the Diagnostic and Statistical Manual for Mental Disorders Version 5. This diagnosis had been established in his childhood as per the documents provided.
During his developmental period Mr Pham had been subjected to a multitude of psychosocial disadvantages identified in the Bugmy Bar Book. They included child abuse and neglect, early exposure to drugs, homelessness, incarceration of a parent, interrupted school attendance and low socio-economic status. He had also felt discriminated against due to his intellectual disability.
Lack of close relationship with either parents, difficulty making friends in early childhood and inability to sustain romantic relationships have resulted in a sense of longing for close relationships. This appears to have made him vulnerable for exploitation by others.
Mr Pham’s early life experiences and limited problem solving skills predispose him to experiencing anxiety and depressive symptoms in response to stressful events/circumstances. He had previously attracted a diagnosis of adjustment disorder (a psychiatric condition in response to stressful events/circumstances).” (emphasis in original)

Dr Dayalan confirmed that around the time of the offence, Mr Pham had been suffering from mild intellectual disability which is a permanent condition.
As to a connection between his opinion of the offender, and his offending, Dr Dayalan stated:

“In establishing a nexus between his offending behaviour and his mental health, it is probable that his intellectual disability and vulnerability to exploitation from others contributed to the impaired judgement exhibited at the time of the offence. Judgement is a complex mental process that relies on a multitude of cognitive functions such as information processing, reasoning and consequential thinking. It is noted that neuropsychometric assessment had identified that these intellectual functions were in the extremely low range in the case of Mr Pham.
The intellectual disability and psychological vulnerability cannot be regarded as the only factors impacting on his decision making as Mr Pham acknowledged willingness to follow the directions of his associate for financial reasons as well.”

I note at this point that the recorded conversation between the offender and the UCOs after his arrest assists in my understanding of the offender’s vulnerabilities. He engaged readily and in a gullible way with these two men, unknown to him.
At the time of Dr Dayalan’s assessment the offender maintained contact with his grandmother, sister and cousins and a friend. His sister offered him support throughout the trial process.

Mr Pham reported that in custody he had been “stood over” by other inmates for his belongings and assaulted. He is fearful of further assault or sexual assault and distressed by restricted access to his family and uncertainty as to whether his grandmother will be alive when he is released.
The offender expressed regret to Dr Dayalan for his actions although because he has not accepted responsibility for his offending I do not take this into account as remorse in the statutory sense or even as that term is understood at common law. In his discussions with the UCOs after his arrest he seemed alarmed and surprised that a person could be guilty of murder by undertaking acts such as those he performed.
To Dr Dayalan the offender denied use of illicit drugs in custody and he has not incurred any gaol charges. He has worked from time to time in textiles and completed drug and alcohol and anger management courses.
Dr Dayalan expressed the opinion that in the correctional environment the offender is vulnerable to exploitation by antisocial peers in view of his intellectual disability. There has been an escalation in anxiety. The rehabilitation programmes offered are not specifically designed for people with intellectual disability. He believes incarceration is more onerous upon Mr Pham in view of his intellectual impairment and psychological vulnerabilities, and there are limited rehabilitation opportunities that cater to his needs.
Corrective Services documents tendered on behalf of Mr Pham support the account of the offender of being at risk (requiring protective custody at times) and fearful. They show that he is compliant, polite, and sometimes works.

The parties’ submissions

Written and oral submissions were made for the Crown and offender and I have taken these into account and been assisted by them. I will mention only some aspects of them either because they are important or contentious.
The Crown Prosecutor submitted that I should be satisfied beyond reasonable doubt that the offender conducted surveillance at the gym on 28 February 2023. The Crown relied upon the same submissions as made to the jury, including that the offender’s prefacing of one account to the UCOs of waiting for someone to bring him cocaine by the words “I’ll say…” indicated he was practising what he would [falsely] say to police if questioned about his presence in the vicinity of the gym that morning.
Senior Counsel for the offender submitted that while there may be some suspicion as to Mr Pham’s state of knowledge at that time, I could not find beyond reasonable doubt that Mr Pham knew of the planned murder. Reliance was placed on the absence of evidence of his knowledge at that point in time. He was properly characterised, in the submission made on his behalf, as someone who did jobs for others, such as parking the car on 24 February 2023. It was submitted that the timing of his departure on 28 February 2023 did not correspond with him understanding the significance of the deceased having left the carpark, as he remained there for over an hour after that point. It was submitted that even if Mr Pham was conducting some surveillance, he was not necessarily aware of its purpose and saw no need to conceal his actions.
The submission for the offender was that I should be satisfied beyond reasonable doubt that he became aware of the planned murder when driving the shooter and driver before the shooting on the morning of 2 March 2023. His lack of preparation to leave Australia was submitted to be consistent with a late discovery as to the shooter’s intention.
The Crown submitted in writing that the offence is “within the mid range”. In oral submissions it was submitted that it was “well within the mid‑range of offending,” which range would perhaps be between 35 and 70 percent of the most extreme case. Counsel for the Crown, as well as Senior Counsel for the offender, acknowledged that I am not required to allocate a level of objective seriousness by reference to a notional range. Senior Counsel for the offender submitted in writing that, if I did so, the seriousness was less than had been suggested in writing by the Crown.
The Crown referred to the murder being planned, involving an intent to kill, described it as a “contracted ‘hit,’” referred to it being senseless and brutal and in complete disregard for the presence of the child, and the fact that the offender was financially motivated as indicated by his reference to $20,000 to the UCOs. In a second set of written submissions and orally the Crown Prosecutor clarified that insofar as s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW) was concerned, this offence should be described as planned rather than organised. The Crown submitted that the presence of the child was an objective fact of the murder that required recognition. Both parties acknowledged that the extent that the offender personally knew or should have known of this would likely be influenced by my finding as to whether the offender knowingly conducted surveillance on February 28.
The Crown acknowledged that the offender’s mild intellectual disability and psychological vulnerability would support a finding that some diminution of his moral culpability is warranted, with modest resulting adjustments to purposes of sentencing such as general deterrence, retribution and denunciation. The Crown’s written submissions also included a section in which the intellectual disability was suggested to be relevant to the objective seriousness of the offence, referring to the decision of the Court of Criminal Appeal in DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 (‘DS’) at [96].
The submission of Senior Counsel for the offender was that his intellectual disability and vulnerability to exploitation reduce the objective seriousness of the offence. There was submitted to be a strong degree or connection (or relevant causal link) because Mr Pham’s liability is by way of a joint criminal enterprise, that is an agreement, and his ability to deliberate sensibly upon that was impaired, also referring to DS [96]. The coexisting financial motive was submitted to not significantly diminish this proposition, especially since the specifics of the promised money are not entirely clear, such as when it was offered and for what jobs.
It was submitted for the offender that his intellectual functioning and psychological vulnerability also supported a significant reduction in moral culpability.
Both parties submitted that it was open to find that the offender’s upbringing was relevant in diminishing his moral culpability, as considered in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
The parties agreed that it was open to find that future offending is unlikely. The Crown did not agree that the evidence supported the submission for the offender that I would also find good prospects of rehabilitation.
The Crown acknowledged that there was evidentiary support for a finding that the offender’s experience of custody may be more onerous than someone without his intellectual disability but submitted that the evidence was not strong and the allowance for this should not be significant. The submission for the offender was that the report of Dr Dayalan and the Corrective Services documents provided more support for this proposition than the Crown recognised.
A finding of special circumstances to vary the usual ratio between the non-parole period and total sentence was urged on behalf of the offender, whereas the Crown submitted that the evidence did not justify such a finding.

Objective seriousness

I have referred already to a number of the facts bearing on the objective seriousness of the offence. I am not satisfied beyond reasonable doubt that the offender knowingly conducted surveillance at the gym on 28 February 2023. Having listened to the recording of his conversation with the UCOs, I am conscious that the offender had an unusual way of speaking. I do not take the phrase “I’ll say...” before one occasion of telling the UCOs he was waiting near the gym for cocaine as a rehearsal for what he would falsely say to the police. I took his conversation to be telling the UCOs what occurred. I recognise that in light of the jury’s conviction of the offender he must have been not entirely truthful with the UCOs. He spoke reasonably freely about what he did, but maintained he was not guilty and stated a number of times that he did not know. Partly, his way of discussing his circumstances seems to have been caused by shock that what he had done could amount to murder, when he was not there and did not contribute to it, as he saw it.
This murder was obviously carefully planned. I have referred earlier to features of the case which demonstrate this. The offer of payment of $10,000 or $20,000 to the offender to undertake reasonably undemanding tasks supports this, although I have noted that it is not clear he was ever going to be provided with this full amount. Some money was provided. The evidence does not permit a finding as to whether the murder was planned by the shooter and the shooter’s driver, or by others as well. Those concerned with the planning went to lengths to minimise the prospect of the shooter and driver being apprehended. The offender’s tasks contributed to this minimisation of risk to the shooter and driver, rather than to the murder itself. They were of course done in furtherance of a joint criminal enterprise to kill – but it can be seen that the offender was utilised to perform tasks that would expose him to observation and detection and reduce the prospect of the others being observed. He was no doubt expected to be loyal if apprehended.
The offender’s intellectual disability, psychological vulnerability, lack of other violent conduct or criminal experience, and the nature of the roles he did perform supports the proposition that he was utilised by others, rather than having any role himself in planning this murder.
The offender was a user of drugs at the time with a low paying job. It is plausible that he agreed to attend the vicinity of the gym to wait for a supply of cocaine, for purposes not explained to him. He may have been asked to look out for something or someone while he was there. The evidence is not clear about this. The lack of correlation between the departure of the deceased and the departure of the offender gives rise to a reasonable possibility that what he repeatedly said to the UCOs as to his purpose in attending there was true.
The offender’s call to the Australian Passports office virtually as soon as he arrived home on the morning of the murder, with no prior planning to leave the country, supports the proposition that he did not know about the murder until that morning. In line with the elements of the offence and the way the jury was directed, he must have had that knowledge at some point before the act causing death. He was not merely an accessory after the fact to someone else’s crime. However the sudden drive to leave the country, in combination with the likely dynamics as between this offender and those who were planning the crime, suggests that he was provided with whatever information he was provided with, sufficient to found the requisite knowledge of an intention to kill, very shortly before the murder. There was no reason for him to know earlier.
It is not clear that the knowledge the offender gained would have been particular enough, or linked by him back to what, if anything, he had seen on 28 February, to found a knowledge on his part that a child would or may be present when the deceased was killed. I recognise that the commission of this crime in the presence of a child was a serious and important aspect of what occurred. The child’s screams and terror as recorded in the CCTV footage were a graphic demonstration of the harm caused by this murder. The VIS of Mr Sabbagh’s wife referred specifically to her dismay in understanding from this footage the way this occurred. However I am not satisfied that Mr Pham personally was aware that a child would be present when the person the others were going to kill would be killed.
Mr Pham’s intellectual disability has had an important bearing on my findings as to what happened and what his level of involvement and knowledge was. I am not of the view that it has any additional role in reducing further the objective seriousness of this offence. It is not like non-exculpatory duress, or the observation of a child being assaulted in Britton v R [2024] NSWCCA 138, which illuminates any further what actually happened or what his mental state was. He is required to be sentenced on the basis that he in fact reached an understanding with others, amounting to an agreement, that a human being was to be killed. He cannot be sentenced on the basis that he did not fully agree or understand.
I find Mr Pham was offered money to do jobs by others who wished to protect themselves, and at some point shortly before Mr Sabbagh was killed he learned that the jobs he was doing that morning were for people who were going to kill someone.
As I indicated towards the outset of these remarks, the offence of murder carries a standard non-parole period of 20 years imprisonment. That represents the non-parole period that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.
Taking into account only the objective factors affecting the relative seriousness of the murder that I have referred to, qualified by this offender’s very low level of participation in it, I do not regard this offence as in the middle of the range of seriousness. His very low role makes this crime less serious than that. I nonetheless take the standard non-parole period into account in determining the appropriate sentence. I take into account as well the maximum penalty of life imprisonment, demonstrating in the clearest of terms Parliament’s intention in relation to the sentencing of those who commit such a serious crime. I do not regard there to be any need for me to further respond to the submission of the Crown that this offence objectively was well within the mid-range of offending with such range being between 35% and 70% of the most extreme case.

Moral culpability

For a number of reasons, this offender was vulnerable to making a wrong judgment in continuing to assist the others despite that knowledge, and did so. The offender’s intellectual disability, psychological vulnerability and upbringing reduce his moral culpability in this matter. I accept the opinion of Dr Dayalan referred to above at [39]. I am of the view that more conformably with authority these considerations are relevant to his reduced blameworthiness or moral culpability for what he did rather than any tangible reduction in objective seriousness.
I regard the offender’s intellectual disability as particularly important. His moral culpability is significantly reduced, and the need for the sentence imposed to address the punitive and denunciatory aspects of sentencing, and general deterrence, is significantly reduced.
These purposes of sentencing are still however important. A member of our community has had his life taken, with catastrophic consequences for his family. This offender made a wrong choice and contributed to that occurring. I am of the view that despite his intellectual disability there is no need to moderate the role of specific deterrence. This augers well in other respects I will soon address.

Hardship of custody

The need to adequately punish this offender must also take into account the fact that because of his intellectual disability and anxiety, prison is a more harsh experience for him than someone without these issues, and I do take this into account.

Protection of the community and prospects of rehabilitation

It is often the case that an intellectual disability, disadvantaged background or mental illness that reduces moral culpability and reduces the need for the sentence to reflect the punitive and deterrent purposes of sentencing will enhance the need for consideration of protection of the community. This is not such a case. I am comfortably of the view that Mr Pham will have learned significantly from the consequences of his blameworthy conduct in involving himself in this joint criminal enterprise.
As I noted earlier he has a very limited record of prior convictions and no prior violence. The evidence suggests he did not fully understand the seriousness of what he was doing on the date of the murder. He is conducting himself commendably in custody. He is unlikely to reoffend and has good prospects of rehabilitation although will need assistance.

Special Circumstances

The sentence I intend to impose will necessarily incorporate a reasonably long period on parole even if only ¼ of the total term. However the offender will require a significant amount of assistance when reintegrating into the community. He will hopefully, by that time, be assisted with disability services. Some variation of the usual ratio is appropriate.
I find that there are special circumstances because of the offender’s intellectual disability and the more adequate assistance for this in the community, and the need for this to be well established for a long period on his release. This will enhance community safety.

Orders

For the murder of Taha Sabbagh, I sentence you to 18 years imprisonment commencing on 23 April 2023 and concluding on 22 April 2041. I impose a non-parole period of 12 years commencing on 23 April 2023 and concluding on 22 April 2035, on which date you will be first eligible for release on parole.
In compliance with s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), I note that the provisions of that Act have potential application to the offender. I direct that his legal representative advise him of the existence of the Act and its application to this offence.

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Amendments

10 March 2025 - Typographical error - coversheet.

Decision last updated: 10 March 2025

Medium Neutral Citation:	R v Pham [2025] NSWSC 180
Hearing dates:	28 February 2025
Date of orders:	6 March 2025
Decision date:	06 March 2025
Jurisdiction:	Common Law
Before:	Rigg J
Decision:	Mr Pham is sentenced to 18 years imprisonment commencing on 23 April 2023 and concluding on 22 April 2041, with a non-parole period of 12 years commencing on 23 April 2023 and concluding on 22 April 2035.
Catchwords:	CRIMINAL LAW – SENTENCE – Murder – Joint criminal enterprise to kill – offender not present at the scene of the murder – offender conveyed shooter and getaway driver to the car used by them – offender drove the shooter and getaway driver away from another location after the crime – offer and provision of money to offender – mild intellectual disability contributed to involvement in joint criminal enterprise
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Britton v R [2024] NSWCCA 138 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
Category:	Sentence
Parties:	Rex Le Nghia Pham (Offender)
Representation:	Counsel: C Taylor (Crown) M Avenell SC (Offender) Solicitors: Solicitor for Public Prosecutions (Crown) Nyman Gibson Miralis (Offender)
File Number(s):	2023/130026
Publication restriction:	Statutory prohibition on the publication of the name of the child present at the scene and any material that might identify them. See s 15A Children (Criminal Proceedings) Act 1987 (NSW).