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

1. 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.

2. 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.

3. 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.

4. The offender now stands for sentence for Mr Stevanovic’s murder.

5. 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

6. 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 had telephoned the offender just before 2.30pm on 8 January and, in a short call of 160 seconds duration, arranged to purchase methylamphetamine. He then drove from his Minto home to the offender’s Sadlier apartment, where he saw the offender and the offender’s girlfriend, Kate Lloyd.

7. Whilst at the apartment and in the offender’s company Mr Stevanovic spoke to a friend using his mobile telephone, at 4.28pm. The same friend tried to get in contact with Mr Stevanovic by text message at 4.57pm, but received no response. Subsequent calls went unanswered. Between the two telephone contacts Mr Stevanovic was stabbed in the back by the offender, as he sat facing away from him. Mr Stevanovic tried to run, but collapsed from his injuries just outside the apartment block. The offender, who had pursued him, stabbed him a further three times, to the heart, the front of his chest, and the upper left side of his back. Part of the knife blade lodged in Mr Stevanovic’s spine, and the blade snapped.

8. The offender had used a large Mundial brand knife with which he had armed himself, ready for the attack upon Mr Stevanovic.

9. As Mr Stevanovic lay dying the offender secured Kate Lloyd’s assistance and, together, they dragged him inside the apartment, pushing him into the shower recess in the bathroom. The offender then waited for Mr Stevanovic to die. He and Ms Lloyd cleaned up the blood that had been deposited at the front of the building and, over that day and the next, the offender significantly mutilated Mr Stevanovic’s body in an apparent attempt to cut the body into pieces for disposal.

10. Abandoning the attempt by 10 January 2019, the offender left the body in the shower recess, and he and Ms Lloyd moved out of the apartment. They took Mr Stevanovic’s wallet and mobile telephone, and stole his car to use as transport.

11. The offender tried to dispose of the mobile telephone and the car, on 8 January 2019 offering the phone to a neighbour as collateral for a loan he sought from her, and on 12 January 2019, attempting to exchange the car for money, to be used to leave New South Wales.

12. Also, on 12 January the body of Mr Stevanovic was found by the offender’s mother. Such was the state of mutilation and decomposition that Mrs Pham believed the body to be that of her son, a smaller man, of different ethnicity. She called the police.

13. A crime scene officer who later examined the scene saw the body of a male showing evidence of significant trauma, and which was in a state of decomposition. A red rope was about the neck of the deceased. The officer observed pliers, a meat cleaver, a carving fork, cable ties, and a number of knives in the immediate area. Some plastic shopping bags were on the floor; a long bone was visible in one of the bags. Human tissue was found in others. A knife sharpening steel was in the shower recess.

14. Mr Stevanovic’s body was later examined by Dr Kendall Bailey, Forensic Pathologist. Dr Bailey concluded that the cause of death was sharp force injuries to the torso. Two of the injuries were in the chest and two in the back, and associated injuries to the heart, lungs, liver and blood vessels were noted. Dr Bailey observed other, likely post-mortem, trauma, which included disarticulation of some limbs, de-fleshing of some parts of the body, and excision of skin and genitals. Two knife fragments were recovered from the body, one being the tip of a blade, and the other almost the whole of a large blade.

15. Police officers went to Ms Lloyd’s unit late on the evening of 12 January 2019, and the offender was arrested in the early hours of the following day. He still had possession of Mr Stevanovic’s car, although the mobile telephone has never been located.

16. The offender was interviewed by investigating police later that morning, and admitted having stabbed Mr Stevanovic to death, later cutting up his body. He claimed both to have had a fight with the deceased, and also to have acted in his own defence; the latter claim being one the Court has already rejected as not reasonably possible.

17. It is not possible on the evidence to say why the offender murdered Mr Stevanovic. He may have had a fight with him, as he told the police officers who arrested him; certainly the offender’s mother described his temperament as “angry” at this time, such that she tried to avoid upsetting him. It is possible that the offender stabbed Mr Stevanovic in the course of a dispute concerning the drug transaction that was to take place between them. It is also possible that robbery was the motive, since Mr Stevanovic is likely to have had money in his possession to make a drug purchase from the offender, and his property was taken from him after he was attacked, his wallet almost certainly from his person. Precisely why the offender did what he did will however, probably remain unknown.

18. It may be that the offender’s drug induced general paranoia had some role to play, but that cannot be a mitigating feature on sentence.

The Gravity of the Crime

19. The maximum penalty of life imprisonment set by statute reflects the seriousness with which the crime of murder is regarded. That is so because it involves the violent destruction of a human life, and all of the consequential harm that is caused.

20. The Crown submits that this instance of the crime of murder falls within the upper range of objective seriousness, whilst the offender argues that it falls within the mid-range. It is not necessary to categorise an individual crime by reference to a range or category. If phrased in such terms, in my judgment the gravity of the offender’s crime is beyond that of a mid-range offence, falling in about the middle of the upper range.

21. Although there was not any great planning involved in the commission of the crime, it cannot be said to have been spontaneous. The offender told investigating police that he decided to kill Mr Stevanovic after they had spoken on the telephone on the afternoon of 8 January 2019, and prior to Mr Stevanovic’s arrival at the apartment. Having made the decision to kill his visitor, the offender armed himself with a large chef’s Mundial knife in readiness; inferentially, he selected that particular knife because of its size.

22. He acted with an intention to kill Mr Stevanovic. The murder occurred against a background of drug crime.

23. The offender stabbed Mr Stevanovic in the back, at a time when he was peaceably sitting with his back turned to the offender, unsuspecting of any violence, unarmed, and offering no threat or provocation. Since the blow was struck from behind and without warning, Mr Stevanovic had no opportunity to escape, or to defend himself.

24. After the first blow was struck, Mr Stevanovic fled the apartment. The offender did not, however, allow him to escape. He pursued him and, after Mr Stevanovic had fallen to the ground and was lying defenceless in a prone position, he persisted with the attack, and stabbed him again, striking him three times with the knife, to the chest and torso.

25. The offender then removed Mr Stevanovic from the public place in which he lay injured, and from which there was at least some prospect that he might have received help from passers-by, dragging his victim back into the seclusion of the apartment, where no aid could reach him.

26. In doing so, the offender secured the assistance of Kate Lloyd, thus entangling her in these terrible events, and inducing her to participate in a serious crime.

27. The offender then mutilated and partially dismembered Mr Stevanovic’s body, including the excision of a tattoo by which he could potentially have been identified, and by severing his penis. The latter mutilation is not explained by a need to dispose of the deceased’s body. The offender then left the body in the obscurity of the apartment, with decomposition following. Because of that, the deceased’s family were prevented from performing the important religious rituals critical to proper funerary rites within their faith. The mutilation of the deceased’s body is a feature which adds considerably to the gravity of the crime: Knight v R [2006] NSWCCA 292; (2006) 164 A Crim R 126.

28. The offender stole the deceased’s wallet, telephone and car. The wallet was likely removed from Mr Stevanovic’s person.

29. This crime is indeed a grave one, involving a savage attack by the offender, with a weapon on an unarmed man, and thereafter treating his body with complete contempt, denying Mr Stevanovic his humanity, or any dignity in death.

The Victim Impact Statements

30. The Court received victim impact statements from Goran Stevanovic’s parents, his young daughter, his sister, and his aunt. Those statements, read to the Court on the family’s behalf by Ms Blanch of the Homicide Victim Support Group, provided heart wrenching examples of why murder is such a serious crime. A life has been snuffed out; all of the future and all of the potential that inhered in that life has been lost. The harm done, however, goes deeper, and encompasses the pain, grief, and loss of those left to mourn the deceased.

31. At the hearing of sentence proceedings Mr Stevanovic’s family, who were present to honour him, sat in the public gallery of the court sobbing, quietly but continuously. Their grief was a solid presence in the courtroom.

32. The Court heard from Mr Stevanovic’s parents that, because of the state of their son’s body, they could not conduct the rituals and rites so important to them to farewell their boy in the manner required by their faith; they could not even see his body, or give him one final hug. Mr Stevanovic’s sister lost a lifelong best friend and she, her late husband, and their family have been overwhelmed by a pain that is enduring. Mr Stevanovic’s aunt and uncle have been deeply affected, losing a nephew who was like a son to them. For Mr Stevanovic’s two children, aged five and seven when their beloved father died, the loss is as incomprehensible as it is immeasurable.

Other Material in the Crown Case

33. The offender’s criminal histories, from New South Wales and Western Australia, form part of Ex. SA.

34. The offender began committing crime as a child, appearing before the Children’s Court for car theft in 1996 when he was 16 years old. Later that year he was dealt with for five counts of stealing from a motor vehicle and seven of attempting to do so, 12 counts of malicious damage, and possessing housebreaking implements. The following year, the offender was given his first court ordered assistance with drug rehabilitation, after being placed on a community service order for possession of a prohibited drug.

35. In 1998, and still a child, the offender received a further opportunity to rehabilitate from drug use, after being placed on 12-months’ probation with orders that he remain drug free and accept supervision from the Juvenile Justice Office. One month later, in probable breach of that probation, he was fined for possession of a prohibited drug. The offender was made subject to further community-based sentencing orders for two counts of robbery whilst armed, and possession of a prohibited drug. Later he was dealt with for six counts of break enter steal (“BES”), receiving stolen property, and having goods in custody.

36. The offender’s first offence committed as an adult was one of being carried in a conveyance, for which he received a term of imprisonment in 1998. This was followed by offences of entering a building with intent to commit a felony and entering prescribed premises that same year.

37. In 2000, the offender was sentenced for assault occasioning actual bodily harm, affray, BES, breaching a s 12 Crimes (Sentencing Procedure) Act 1999 (NSW) bond, and having goods in custody. In 2001 he was convicted of larceny, entering enclosed lands, and driving under the influence of a drug; and in 2002 further offences of BES, larceny, and having goods in custody. In 2003 the offender was gaoled for four months for supplying a prohibited drug.

38. The offender was not before a criminal court in NSW between his release from prison on 29 November 2003 until the first of a series of regular appearances in 2009 and 2010, charged principally with BES offences. He received terms of imprisonment on sentence before, in October 2011, he was referred to the Drug Court. His sentence for a BES offence was suspended, but he was later placed into custody, having breached the terms of the suspended sentence (Ex SA.2, 23 July 2013).

39. In 2013, the offender was continuously before the Local Court, mainly for dishonesty offences. In 2015 there was a further conviction for an offence of violence, affray, with a bond imposed, requiring the offender, after being called up for breaching the bond, to accept treatment for drug and alcohol rehabilitation. Later that year he was gaoled for having goods in custody.

40. In 2018 the offender was made subject to a conditional release order (“CRO”) for shoplifting, which commenced on 29 November 2018, expiring on 28 November 2019. This CRO appears to have been current when the offender murdered Mr Stevanovic. He was charged on 18 December 2018 with possessing or attempting to possess a restricted substance, and forging a prescription for a restricted substance (although he was not subject to bail). Those charges were before the Local Court on 20 February 2019, by which date the offender had already entered custody, remanded on the charge of murdering Mr Stevanovic. He received a two month term of imprisonment for each charge, commencing on 20 February 2019 and expiring on 19 April 2019.

41. The offender’s custodial history shows that he has breached many of the community based sentencing orders imposed upon him, having entries for revocation of an intensive corrections order, revocation of parole, and revocation of periodic detention orders.

42. His New South Wales criminal history deprives the offender of any leniency that might have been extended to him in other circumstances.

43. In Western Australia, the offender has a traffic entry, for driving contrary to a learner’s permit. Apart from providing some support for his claim to have lived a law abiding life for some years in Perth, the WA record is of no relevance.

The Subjective Case

44. The offender did not give evidence on sentence and the case he presented was very sparse.

45. He tendered a report from a psychologist, Anita Duffy, which had been requested from the author by the offender’s legal representatives for use on sentence. The report, Ex. S1, is almost entirely reliant upon the offender’s account of himself and relevant events. The caution with which sentencing courts should approach material of this nature is, or ought to be, well known: R v Qutami [2001] NSWCCA 353.

46. A history was obtained from the offender; no family members were spoken with, and the information provided was not independently confirmed. The offender reported that he had grown up in a family where he felt largely unsupported by and disconnected from his parents. He claimed that his ability to share his feelings with his parents or seek their assistance during childhood was compromised because his parents “primarily spoke Vietnamese and he English”. As his parents could use only “simple expressions” in English, the offender was obliged to keep his feelings to himself, and expressed problems by losing his temper. He described his home life as “not good” and his parents as strict and not very loving.

47. The offender achieved basic literacy and numeracy at school, but he began truanting in high school and left in Year 9. By that time, he was using drugs, and he left home at age 16 to live with friends. Although he returned to live in the family home from time to time there was conflict, because his parents objected to his drug use. He has regularly used heroin by injection, and also cannabis, methylamphetamine, buprenorphine, methadone, and “pills”.

48. He spent some time in custody, before moving to Perth. The offender told the author of the report that he was employed in the five or so years he spent in Western Australia, was in a committed relationship, and had a son. He left Perth, and his son, when the relationship ended.

49. On returning to NSW, the offender returned to drug use and came back before the criminal courts. He claimed that, when subject to the Drug Court programme, he was given counselling for the first time, and to have “self-terminated” from the Drug Court programme at the end of the period of supervision, claims which do not appear to be consistent with the offender’s criminal or custodial histories, each of which show a number of supervision and counselling orders over time, and a breach of Drug Court orders with the consequential imposition of a short custodial sentence.

50. The offender told the psychologist that he had periods of depression because of his “miserable family environment”, and claimed to have attempted suicide. He claimed also to have been the victim of a violent gang kidnapping, as well as other drug related bashings, none of which have been independently confirmed. Currently, he feels “depressed over not having the life he always wanted, with a family and children, like other people”. He claimed to be drug free in custody.

44. The offender’s only real support is, he says, his mother.

45. When asked about the offence, the offender said that he cannot remember it clearly. He said that he had been using “pills” and “ice” and thought someone had “booby trapped” his apartment by leaving a “plastic ball” under a pizza oven. He was suspicious of the deceased and wondered if he might try to do something to him. He claimed that the deceased was “stalling for time” when at his apartment, and the offender “struck out” with a knife to avoid being outnumbered. The report author attributed the offender’s crime to the offender having “overreacted to what he perceived as a threat and [he] then tried to hide what he did”. She observed, “the horrific nature of the offence and the attempts to dismember the body still cause flashbacks, bad dreams and avoidance consistent with a response to trauma”.

46. The only part of Ms Duffy’s report that has any claim to a basis in objectively reliable information is the result of a Personality Assessment Inventory test administered to the defendant, which the author was confident was not manipulated by the offender. The results indicated, unsurprisingly, an excessive use by the offender of drugs which had negative consequences for him. Otherwise, the offender is noted to display impulsivity, and to be prone to self-destructive behaviour. He reported anxiety related to traumatic life experiences.

47. Ms Duffy concluded that the offender has a substance abuse disorder, and displays symptoms consistent with an anxiety disorder and a depressive disorder. On the basis of acceptance of the history given, she opined that his adverse childhood experiences, with unloving parents and perceived neglect, a childhood she referred to as “disconsolate”, “increased the likelihood of depression and post-traumatic stress” that led in turn to drug use.

48. Ms Duffy’s opinion is substantially reliant upon the offender’s claims to her, claims that must be regarded as unreliable.

Remorse and Rehabilitation

56. Remorse can be a mitigating factor on sentence where an offender provides evidence that he or she accepts responsibility for the crime and acknowledges the harm done. The only evidence here of remorse is the offender’s assertion to Ms Duffy that he “can’t even talk about [the murder]” and his reference to Mr Stevanovic’s two children being without a father.

57. His claims to Ms Duffy were not subject to cross-examination or other testing.

58. Although the offender submitted he should be given the benefit of his expressions of remorse, there is a significant difference between an offender who is prepared to tell the Court directly about his or her feelings of remorse, and face cross-examination, and an offender who makes a claim of such feelings to the unquestioning acceptance of a sympathetic third party. The offender has shown himself to be an unreliable historian, and any self-serving account he gives must be viewed with some caution.

59. In his accounts to investigators of the murder of Mr Stevanovic, the offender gave different and inconsistent accounts. His brief account to Ms Duffy was different again. He referred on the latter occasion to the deceased as “stalling for time” and his own belief that others were coming to join in an attack on him. There was no such reference in the accounts to police. His assertions about the use of a plastic ball to “booby trap” his apartment is another inconsistency between his claims to police and his claims to the psychologist. The reason advanced to Ms Duffy for the genital mutilation of Mr Stevanovic is starkly different to that given by him to police and, in any event, is nonsensical. Even his claim to have received no drug counselling before admission to the Drug Court programme, and thereafter to have successfully completed it, is not supported by the documentary record.

60. The offender himself has referred to his memory as poor, and that may be an explanation for the many inconsistencies in his account of relevant events, although his lengthy record for dishonesty offences must lead to some concern as to his overall veracity. Whatever the reason for it, I am not able to regard the offender’s account of his own life or of his crime as reliable. His claimed remorse must be regarded in the same way.

61. There was nothing in the offender’s presentation in Court that was consistent with remorse. During the readings of the victim impact statement, the offender remained impassive. He did not manifest any apparent distress or regret on hearing the harrowing accounts of the harm his acts have caused.

62. I cannot conclude on balance that the offender regrets anything beyond his concern for his own circumstances. As he said to Ms Duffy, he will not be able to live the life he wanted to live.

63. As to rehabilitation, despite his complaint to Ms Duffy that he had not received counselling to assist him with his drug addiction, the offender’s criminal history shows that such assistance was offered to him from an early age, and repeatedly. Despite the intervention of the courts, and the assistance of the Juvenile Justice Office and later the Probation and Parole Service, the offender has consistently failed to address his drug habit. The period of abstinence in Western Australia ended with the first adverse life event that occurred to him during that time, and his claimed recovery was short lived.

64. There can be little realistic hope for the offender’s rehabilitation from drug use by any means that is dependent on his own efforts. Enforced abstinence as a prisoner, if that can be achieved, is perhaps the best hope for a future drug free life. If the offender ceases to be an abuser of drugs, his wider prospects for rehabilitation will be enhanced, but that is not a prediction that the Court can comfortably make. His prospects for the future are entirely opaque.

Other Features relevant to Sentence

65. The offender submitted that his willingness to facilitate the course of justice by the efficient conduct of his trial, before a judge alone and confined to a single issue, should attract recognition by a reduction of the sentence that would otherwise have been imposed. I accept that there should be such a benefit afforded to him and, although it need not be quantified, I propose to reduce the sentence imposed upon the offender by 10% to that end, rounded down to eliminate a sentence including a number of days.

Special Circumstances

66. The offender has asked the Court to make a finding of special circumstances in his favour and vary the ratio of sentence, reducing the non-parole period below the statutory norm. Although it may be accepted that the offender will need assistance to reintegrate into the community upon release to parole, and may still be in need of drug rehabilitation services, adequate time for that will be provided within the usual statutory structure. I do not intend to vary the ratio of sentence, although the NPP will be rounded down to avoid a result containing individual days.

The Sentence to be Imposed

67. The murder of Goran Stevanovic was a pitiless crime; his post-mortem mutilation was horrific, and not entirely explained by a wish to hide the offender’s crime. The harm done is very great indeed.

68. The offender cannot call on his former good character or the positive aspects of a life usefully lived. He has a long and consistent history for dishonesty offences, and some convictions for offences of violence. He cannot credibly assert that his prospects for the future are encouraging, since he has thrown away so many opportunities in the past. His claims of remorse ring rather hollow, and are dwarfed in any event by what seems to be his sorrow for his own situation.

69. There is nothing in the limited evidence put before the Court that can ameliorate the gravity of the offending. Little weight can be given to Ms Duffy’s report, which is, for the most part, no more than a record of assertions made by the offender, assertions which are largely unsupported, and that are contradicted by credible evidence in some regards.

70. The offender says he was affected by drugs when he savagely attacked Mr Stevanovic, but his voluntary and self-induced intoxication is not a feature that can assist him: s 21A(5AA) Crimes (Sentencing Procedure) Act; R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346. It is open to the Court to treat his persistent drug use as a feature calling for a greater degree of specific deterrence than might otherwise be the case, although it will be treated as a neutral factor.

71. The offender has been in custody since his arrest on 13 January 2019, excluding the period 20 February to 19 April 2019, when he was serving sentences for unrelated offences. Although there is no commonality between those offences and the present crime, the sentence to be imposed upon him will commence on the date of his arrest, subsuming the two concurrent sentences. A period of two months is negligible in the context of the sentence that must be imposed.

72. That sentence must reflect principles of general deterrence which, for a very serious crime that occurred in the context of drug crime, must have a significant impact. Given the offender’s lengthy criminal history, specific deterrence also has a role to play.

73. Finally, the sentence that is to be imposed is not and could never be a measure of Goran Stevanovic’s life, and nor can it make good his loss. It is unlikely that it can assist his family to come to terms with that terrible loss. Acknowledging that, I can only offer the Court’s sympathy to his family.

orders

74. The orders of the Court are:

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.

**********

Amendments

13 May 2021 - Typographical amendments to coversheet, [70] and [73].

Decision last updated: 13 May 2021