R v Pham - [2005] VSCA 57

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 199 of 2004

THE QUEEN
	v.
XE VAN PHAM

---

JUDGES:	VINCENT and NETTLE, J.A. and CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 March 2005
DATE OF JUDGMENT:	7 March 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 57

---

Criminal law – Sentence – Intentionally causing serious injury (2 counts) – Child victim attacked whilst protecting his mother – Transferred malice – Whether greater degree of concurrency required as child victim not “primary victim” – Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S. Pullen, SC	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr D.A. Dann	Paul A. Vale Pty.

VINCENT, J.A.:

The appellant was, on 30 June 2004, found guilty by the jury empanelled on his trial, in the Trial Division of this Court, on two counts of intentionally causing serious injury to a person (counts 3 and 4 on the presentment) which arose from the assault and use of a knife upon two victims at their home in Springvale on 10 April 2003. He was acquitted on two counts of attempted murder and on one of aggravated burglary based upon the same incident.

The Background

The following description of the background and circumstances relating to the commission of the appellant's offences has been prepared from the summary of evidence, with which the Court has been provided, and the remarks of the learned sentencing judge when handing down sentence upon him.

The appellant met his two victims, Thu Thi Tran and her four year old son, Simon Tran, in February 2001, when he moved into their home in Springvale as a boarder. Within a matter of weeks Thu Tran and the appellant developed what is described in the material as a "close relationship". However, about two months later, Thu Tran effectively withdrew from it and the appellant moved out of the house. Nevertheless, they maintained an association and he continued to visit her over the next 18 months.

During that period, the appellant married Thu Tran's sister, Chi Tran, in Vietnam. She then came to Australia in October 2002. For some reason, but presumably after they had compared their respective experiences with him, the two women formed the view that the appellant had acted deceitfully in his relationships with them and shortly afterwards made it clear that they wanted nothing to do with him. The appellant refused to accept this situation and commenced to harass the two women in a number of ways.

In January 2003, and as a consequence of the harassment, Thu Tran obtained an intervention order covering herself and her two children. Under the terms of the order the appellant was prohibited from approaching, telephoning or contacting any of them save in the company of a police officer, or to come knowingly within 100 metres of any premises in which they might be living or working except under the same condition. It appears, however, that the appellant paid little or no…

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 [2005] VSCA 57
Case: [2005] VSCA 57
Decision Date: 7 March 2005

CaseChat Overview and Summary

The case of R v Pham involved the appellant, who was convicted of intentionally causing serious injury to a child victim, who was protecting his mother from attack. The appellant appealed his sentence, arguing that the trial judge had misapplied the principles of transferred malice and had not adequately considered the circumstances of the case. The appeal was heard by the Court of Appeal.

The primary legal issue before the Court of Appeal was whether the trial judge had correctly applied the principles of transferred malice in sentencing the appellant. The appellant argued that the child victim was not the primary victim and therefore a greater degree of concurrency was required in the application of transferred malice. The Court of Appeal was required to determine whether the trial judge had erred in law in sentencing the appellant.

The Court of Appeal held that the trial judge had not erred in applying the principles of transferred malice. The Court found that the child victim was sufficiently connected to the intended target of the attack, the mother, for the purposes of transferring the appellant's intent to cause injury. The Court held that there was no requirement for a greater degree of concurrency in the application of transferred malice where the victim was not the primary victim. The Court of Appeal dismissed the appellant's appeal and affirmed the sentence imposed by the trial judge.

The Court of Appeal dismissed the appeal and affirmed the sentence imposed by the trial judge. No further orders were made.

Orders