R v Pham (Sentence) - [2021] NSWSC 528

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Pham (Sentence) [2021] NSWSC 528
Hearing dates: 10 May 2021
Date of orders: 13 May 2021
Decision date: 13 May 2021
Jurisdiction: Common Law
Before: Wilson J
Decision:
(1) Khanh Xuan Pham is convicted of the murder of Goran Stevanovic, on 8 January 2019.
(2) For that crime, he is sentenced to a term of 30 years and 7 months imprisonment, to date from 13 January 2019, and expiring on 12 August 2049. There will be a non-parole period of 22 years and 11 months, which will expire on 12 December 2041.

Catchwords:
CRIME – sentence – murder – objective seriousness of offending – judge alone trial – offender pleaded guilty to manslaughter – offender claimed self-defence – found guilty of murder – question of remorse – relevance of drug use – where offender mutilated body

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Knight v R [2006] NSWCCA 292; (2006) 164 A Crim R 126
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Pham [2021] NSWSC 196
R v Qutami [2001] NSWCCA 353

Category: Sentence
Parties: Regina (Crown)
Khanh Xuan Pham (Accused)
Representation:
Counsel:
D Daleo (Crown)
L Brasch (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Mark Klees & Associates (Accused)

File Number(s): 2019/12346
Publication restriction: Nil

Judgment

HER HONOUR: At around 3pm on 8 January 2019, Goran Stevanovic left his family home, telling his mother that he would see her later. He was expected at a family birthday celebration later that day, and it was not thought that his absence would be protracted. In fact, he did not return home, and his family never saw him again.
Four days later, on 12 January 2019, Thi Hon Pham found Mr Stevanovic’s mutilated and decomposing body in the shower stall of her son’s studio apartment at Sadlier.
The offender, Khanh Xuan Pham, was tried earlier this year for Mr Stevanovic’s murder, and found guilty of that crime. Murder is a crime contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). It carries a maximum sentence upon conviction of life imprisonment. A standard non-parole period of 20 years imprisonment is specified by the Table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW). These are the guideposts to which the Court must have regard in determining the sentence to be imposed.
The offender now stands for sentence for Mr Stevanovic’s murder.
The offender’s trial proceeded as a judge alone trial. In R v Pham [2021] NSWSC 196 (“the verdict judgment”) the Court set out the facts established by the evidence at trial; that decision should be read as the essential background to this judgment.

The Facts of the Crime

For about three weeks prior to his murder on 8 January 2018 Mr Stevanovic was in occasional contact with the offender, for the purpose of purchasing illicit drugs from him. He…

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 (Sentence)

Details

AGLC: R v Pham (Sentence) [2021] NSWSC 528
Case: [2021] NSWSC 528
Decision Date: 13 May 2021

CaseChat Overview and Summary

The case before the court was an appeal against sentence, where the appellant was found guilty of murder. The appellant had originally pleaded guilty to manslaughter, claiming self-defence. However, after a trial before a judge alone, the appellant was found guilty of murder. The central issue for the court was the appropriate sentence to be imposed on the appellant, considering the objective seriousness of the offending, the mitigating factors, and the relevance of drug use and mutilation of the body.

The court considered the objective seriousness of the offending, noting that the appellant had killed the victim in a premeditated and calculated manner. The court also took into account the mitigating factors, such as the appellant's young age and the influence of drugs on his behaviour. However, the court found that the appellant's lack of remorse and the mutilation of the body were significant aggravating factors. The court held that a custodial sentence was necessary to reflect the gravity of the offending and to protect the community. The court imposed a sentence of 25 years imprisonment, with a non-parole period of 19 years.

The court rejected the appellant's argument that the sentence was excessive, noting that the sentence reflected the seriousness of the offending and the need to protect the community. The court also rejected the appellant's argument that drug use should be considered a mitigating factor, noting that drug use did not excuse the appellant's actions. The court held that the sentence was appropriate and proportionate to the offending.

The final orders of the court were that the appellant be imprisoned for a term of 25 years, with a non-parole period of 19 years. The appellant was also ordered to pay a fine of $5,000. The court held that the sentence was just and appropriate in the circumstances of the case.

Orders