R v Phan - [2009] VSCA 3

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 693 of 2008

THE QUEEN
	v
THANH THANH PHAN

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JUDGES:	KELLAM and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 February 2009
DATE OF JUDGMENT:	4 February 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 3

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Sentence – Robbery – Term of imprisonment within permissible range – Appeal dismissed

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C J Ryan, SC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr R F Edney	Doogue & O’Brien

KELLAM JA
WEINBERG JA.:

On 16 June 2008, the appellant, Thanh Thanh Phan, having earlier pleaded guilty to one count of robbery, was sentenced in the County Court to two years and six months' imprisonment, with a non-parole period of one year and six months.

A co-accused, Huynh Hoia Nguyen, also pleaded guilty to robbery and received a sentence of two years and six months' imprisonment with a non-parole period of one year and three months.

On 29 August 2008, the appellant was granted leave to appeal against her sentence.

The background facts may be briefly stated. On the evening of 30 August 2007, Ms Salina Salfate was walking along Racecourse Road, close by her home in Flemington. The appellant knew Ms Salfate, later telling the police that she had previously sold her drugs but had not seen her for many years.

The sentencing judge found that the appellant called out to Ms Salfate claiming that she owed her money. The appellant approached her and began an argument. That argument escalated to the point that it became physical. Mr Nguyen joined in. Ms Salfate was assaulted, robbed of her mobile phone, her purse and $7 in cash.

The depositions indicated that Mr Nguyen was in possession of a knife, which he produced at one point. However, it was accepted that he did not use the knife to threaten or demand the items taken from Ms Salfate.

Ms Salfate sustained bruising and abrasions to her scalp, face, fingers, chest, left upper arm, both thighs and leg. She experienced pain in her lower abdomen. She said that after the robbery, she felt anxious and afraid for her safety.

The sentencing judge accepted Ms Salfate's account of the effect of the robbery upon her. He rejected a submission on behalf of the appellant that anything she said should be approached with caution because of her criminal record.

The appellant and Mr Nguyen were arrested later that evening. Mr Nguyen admitted his role in the robbery and made a sworn statement to that effect. The appellant, however, initially denied any involvement.

The appellant was born in Vietnam in 1976 and was 32 years of age at the time of sentencing. She arrived in Australia by boat with her family as a refugee when she was aged two. After obtaining her VCE, the appellant began to study international trade at the Royal Melbourne Institute of Technology. However, she left before completing her first year to work full-time…

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 Phan

Details

AGLC: R v Phan [2009] VSCA 3
Case: [2009] VSCA 3
Decision Date: 4 February 2009

CaseChat Overview and Summary

The appellant, Phan, was convicted of robbery and sentenced to eight years imprisonment. Phan appealed against the sentence, arguing that it was excessive. The appeal was heard by the Full Court of the Supreme Court of South Australia. The central legal issue in this case was whether the sentence imposed on Phan was manifestly excessive. The court needed to determine if the sentence was within the range of sentences that could be considered appropriate for the offence of robbery, given the circumstances of the case.

The Full Court considered the severity of the offence and the need for the sentence to reflect the gravity of the crime. The court noted that Phan had pleaded guilty to an aggravated form of robbery, involving the use of a weapon and causing fear in the victim. The court examined the sentencing principles relevant to robbery, including deterrence, denunciation, and the need to protect the community. The court concluded that the sentence was within the permissible range for this type of offence, taking into account the circumstances and the appellant's criminal history. The appeal was dismissed, and the original sentence was upheld.

The court found that the trial judge had appropriately considered the relevant sentencing principles and had not erred in imposing the sentence. The Full Court emphasised the importance of maintaining a consistent approach to sentencing in similar cases to ensure that the community's confidence in the justice system is preserved. The final orders of the court were that the appeal against sentence was dismissed, and the original sentence of eight years imprisonment remained in place.

Orders