R v Pham

[2003] VSCA 207

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 183 of 2003

THE QUEEN

v.

VIN LOC PHAM

---

JUDGES:	WINNEKE, P., VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 December 2003
DATE OF JUDGMENT:	4 December 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 207

---

Criminal Law – Sentence – Theft and armed robbery – Youth – Heroin addiction – Whether sentence imposed outside the range available – Appeal allowed.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G.J.C. Silbert	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr M.J. Croucher	Grubissa White, Solicitors

WINNEKE, P.: 

1. I will invite Vincent, J.A. to give the first judgment in this appeal.

VINCENT, J.A.: 

1. The appellant pleaded guilty in the County Court on 25 June 2003 to one count of theft (count 1) and one count of armed robbery (count 2).  After hearing a plea in mitigation of penalty, the learned sentencing judge on 1 July 2003 imposed the following sentences:

On the count of theft  -          nine months' imprisonment;

On the count of armed robbery     -          18 months' imprisonment.

As no order for cumulation was made, this created a total effective sentence of 18 months’ imprisonment in respect of which a non-parole period of 10 months was fixed.  The date of commencement of the sentence was 1 July 2003.

1. As the appellant was, at that time, undergoing a sentence of 15 months' imprisonment with a non-parole period of six months as from 27 May 2003 for unrelated offences committed after the commission of those before the Court, the practical effect of the disposition by his Honour was to increase the existing head sentence by a little over five months to approximately 19 months and the non-parole period by the same amount.

The Background

1. The appellant was on 16 November 1998 aged 15 years and 11 months.  He had at that stage little criminal history, but had on 14 April of that year appeared at the Children’s Court at Melbourne on a charge of possession of heroin, in relation to which he had been released upon entering into a bond in the sum of $200 to be of good behaviour for 12 months.  His personal background could reasonably be described as difficult and unsettled in a complicated family unit.  He had been subjected to assaults and abuse from his step-siblings and as a result of various tensions within the family, from an early age, had spent time living separate from them with relatives and friends.  Perhaps not surprisingly, he experienced difficulty at school.  He was introduced to heroin and by the age of 12 years had become a drug user.  Later in adolescence he developed a significant level of addiction.

1. Consistent with this background, the appellant lived away from home at a very early age, spent some time on the streets and on 16 November 1998 was living in a house owned by one of his co-offenders, known to the appellant as Kham.

1. In the early hours of 16 November he was present with Kham and another man known as Hieu at the house.  They discussed obtaining money to purchase heroin and ultimately agreed that they would burgle a milk bar or commit an armed robbery.  Kham left the house in order to obtain a car and about ten or fifteen minutes later returned with a white Holden Commodore sedan that he had stolen from a street in Maidstone.  The three then left in that vehicle.  Kham took with him a meat cleaver and a knife from the kitchen.  They drove around the Sunshine and Braybrook area for approximately three hours looking at various retail premises as possible targets until about 5.46 a.m. Kham drove the car into a Mobil service station situated at the intersection of Sunshine Avenue and Sage Avenue, Kealba.

1. On that morning, the attendant on duty was a man named Pablo Solis.  He saw the vehicle drive into the service station and pull up close to the front door of the shop area.  He observed the appellant walk into the premises and go down one of the aisles to where bags of potato chips were located.  He saw that the driver of the white Commodore, “Kham”, had covered the top of his head and part of his face with a piece of cloth.  He then saw this man and another man move from the car.  The second man had his head covered in a similar manner.  The two men entered the shop area.  Kham produced a meat cleaver with which he menaced Mr Solis shouting “Give me the money.  Where’s the money?”  Hieu went behind the counter and produced a knife approximately 20 centimetres in length that he pointed at Mr Solis.  He also demanded money and the location of the safe.  Mr Solis told the robbers that he would open the till but that he did not know where the safe was located and could not open it in any event.  He then opened the till and Hieu took the cash drawer from it.  The appellant grabbed bags of chips and confectionery and ran out of the premises, followed by the other two men carrying the cash drawer which contained about $60.  As the vehicle drove away, Mr Solis noted the registration number and the police were contacted.

1. An examination was subsequently conducted of the stolen motor vehicle.  Latent fingerprints were found, one of which matched that of the appellant’s right thumb.  He was not, however, arrested until 9 January 2003.  When interviewed by the police he was co-operative and admitted his role in the commission of the offences.  The information provided by him was, however, insufficient to enable the identification of his co-offenders.  Accordingly, no other persons have, at this time, been arrested or charged in connection with them.

1. Grounds 1, 2, 3 and 5 have been argued together with grounds 1, 2 and 3 being treated, for practical purposes, as particulars of the complaint of manifest excess contained in 5.  There were, Mr Croucher contended, a large number of features present in this case which, if properly viewed, could be seen to operate powerfully in mitigation of penalty and required the imposition of significantly more lenient sentences than those actually imposed upon his client.  First, he pointed out, the appellant was not yet 16 years of age at the time of the offences and was still only 20 when sentence was imposed.  Second, despite his youth and as a consequence of his unfortunate background, he had left home, was addicted to heroin and living with much older men.  Nevertheless, he had only one prior appearance in the Children’s Court for possession of heroin.  Next, the offences occurred nearly five years ago and the only evidence against the appellant was a fingerprint on the vehicle used.  When approached by the police, the appellant made full admissions to them and pleaded guilty at the earliest opportunity after being charged.  He gave an undertaking to give evidence against his co-offenders. The sentencing judge found that the two older participants led the appellant into the offending and that he was not armed.  With respect to his prospects of rehabilitation, he had the support of his mother and his girlfriend.  Finally, the appellant had provided considerable support to his younger brother who had sustained brain damage in a car accident.

1. Counsel further submitted that had the appellant been dealt with at around the time the offences were committed, he would have been subjected to a quite different sentencing regime in the Children’s Court and unlikely to have received a disposition involving immediate incarceration.  In this context, reference was made to the decision of this Court in R. v. Better[1].  There was, counsel contended, a real question in this case whether the judge properly took into account this unusual combination of factors.  Had he done so, the argument was advanced, he would not have imposed sentences which would have extended beyond the period of incarceration that the appellant was at that stage serving.

   [1][2003] VSCA 71 at [12].

1. Each of these considerations, Mr Silbert, who appears on behalf of the Crown, argued in response, was considered by the learned sentencing judge and could be seen to be reflected in the sentences and the orders for concurrency;  they were, he contended, within the range open to his Honour.

Ground 4

1. Although the sentencing judge referred to the appellant’s undertaking to give evidence and remarked that “It runs in your favour”[2], he did not announce, Mr Croucher contended, that he imposed a less severe sentence than would otherwise have been the case by reason of that undertaking, and he did not cause the fact of the undertaking to be entered in the records of the court. It is of course clear enough that his Honour did not comply with the provisions of s.5(2AB) of the Sentencing Act and it is unclear what was meant by him when he stated “It runs in your favour”.  There is, at least, a possibility that he simply regarded this factor as another matter to be taken into account in the determination of an appropriate

sentence and failed to give proper effect to it.  The Court would be justified in interfering with the exercise of his Honour’s discretion on that basis.  However, when regard is had to the appellant’s background, his age at the time of the commission of the offences, his minor level of participation in them, the finding by the judge that he was led into the commission of these offences by two much older persons, his addiction to drugs, the length of time that has elapsed since the commission of the offences and the fact that, had he been intercepted at the time, he almost certainly would not have been incarcerated at all and his plea of guilty, as well as the stage at which that plea was entered, I am of the view that the sentences imposed upon the appellant were in all the circumstances quite outside the range of those properly available to the learned sentencing judge.  The appellant has, since the commission of these offences, pursued an unfortunate lifestyle of drug taking and criminal conduct that has brought him before the courts on a number of occasions.  It is difficult to avoid the impression that his later history assumed inappropriate significance in his Honour’s assessment of the sentence to be imposed for these offences and resulted in the imposition of a sentence that was outside the available range.  It seems to me distinctly possible that he took those matters into account for reasons other than the proper manner in which they could be so regarded, that is, when making an assessment of the appellant’s prospects of rehabilitation. 

[2]T.28.

1. In consequence, I would allow this appeal and I would substitute the following sentences:  on the count of armed robbery, I would impose a sentence of six months' imprisonment.  On the count of theft, I would impose a sentence of one month’s imprisonment.

WINNEKE, P.: 

1. For the reasons given by Vincent, J.A., I agree that the appeal should be allowed and I agree in the orders which his Honour proposes.

EAMES, J.A.:

1. I also agree.

WINNEKE, P.: 

1. The formal order of the Court is that the appeal is allowed.  The sentences imposed in the County Court are set aside.  In lieu thereof this Court imposes sentences as follows:

On count 1, theft of a motor car   -   one month’s imprisonment;

On count 2, armed robbery         -   six months' imprisonment.

The sentences are to be served concurrently with each other and any other sentence which the appellant is currently undergoing.

Pursuant to s.18 of the Sentencing Act we declare that the appellant has already served 157 days of the sentences which we have imposed.