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.:

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

VINCENT, J.A.:

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.

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

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.

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.

In the early hours of 16 November…

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 [2003] VSCA 207
Case: [2003] VSCA 207
Decision Date: 4 December 2003

CaseChat Overview and Summary

The case of R v Pham involved the respondent, Pham, who was convicted of theft and armed robbery and subsequently sentenced. Pham, who had a history of heroin addiction, was charged with stealing from a service station and committing armed robbery while armed with a knife. The case was heard in the appellate court where Pham appealed against the severity of the sentence imposed.

The key legal issues before the court were whether the sentence imposed was excessive and whether the trial judge had appropriately considered Pham's youth and heroin addiction in the sentencing process. The court was required to determine if the sentence fell outside the range of penalties typically imposed for such crimes, taking into account Pham's personal circumstances.

In delivering the judgment, the court found that the trial judge had not adequately considered the mitigating factors of Pham's youth and heroin addiction. The appellate court held that the sentence imposed was outside the range of penalties available for the crimes committed. Consequently, the appeal was allowed, and the matter was remitted back to the trial court for resentencing. The court emphasised the importance of considering the individual circumstances of the offender, particularly in cases involving youth and addiction, to ensure a just outcome.

Orders