R v Phan
[2009] VSCA 3
•4 February 2009
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 as a food and beverage attendant at Crown Casino.
The appellant has a history of using heroin, which started when she began a relationship with a man who was a heroin user. She has one child, a daughter, born in 2002. She stopped using heroin during her pregnancy but appears to have relapsed at some later point. A report prepared by a forensic psychologist, Elizabeth Warren, tendered on behalf of the appellant, expressed the opinion that she was in the early stage of remission from heroin dependence. Urine analysis reports tendered at the plea show the appellant had not used the drug while on remand.
Ms Warren found no intellectual deficit. She understood that the appellant had been subjected to prolonged sexual abuse by a stepbrother when she was very young. Her opinion was that the appellant was still affected by that abuse. She found that the appellant was mildly anxious but was overall of comparatively sound mental health.
The sentencing judge observed that the appellant had numerous prior convictions. There is some uncertainty as to the precise number, but the Crown submission was that there were 28 convictions from eight separate court appearances.
Of particular significance for present purposes was a conviction for armed robbery in 2004, for which the appellant received a wholly suspended sentence. She offended again and thereby breached the terms of that suspended sentence, but was accorded further leniency by being given a further wholly suspended sentence. Many of her other convictions were for drug offences, although there were also convictions for obtaining property by deception and theft.
The sentencing judge observed that on 13 September 2007, the appellant was convicted of several further offences, including some involving dishonesty. She was sentenced to imprisonment for two months for those offences. Up until that point, she had not received an actual custodial term of imprisonment.
The grounds of appeal as set out in the notice of appeal are as follows:
1.The Learned Sentencing Judge erred by imposing a sentence which was manifestly excessive.
2.The Learned Sentencing Judge erred in the finding of fact that the accused instigated the physical confrontation with the victim.
3.The Learned Sentencing Judge erred in not allowing counsel to fully address the issue before making the adverse finding that the accused instigated the physical confrontation with the victim.
The appellant presented no written or oral submissions in relation to grounds two and three.
In relation to ground one, it was submitted on behalf of the appellant that the sentence imposed fell outside the range of a sound discretionary judgment in all the circumstances. In particular, counsel highlighted the appellant's guilty plea, her childhood sexual abuse and its ongoing psychological consequences, her addiction to drugs at the time of the offending and her subsequent rehabilitation while in custody. Counsel also relied upon the support offered to the appellant by her mother and the needs of her young daughter. He submitted that it was a material matter that this was the appellant's first term of imprisonment, although that submission seems to be erroneous in light of the two-month sentence imposed on 13 September 2007.
In addition, it was contended that the circumstances of the offence were at the lower end of seriousness for this type of crime. It was unplanned, opportunistic and effectively an argument over money between persons known to each other which had escalated into a robbery.
The appellant placed reliance on statistics produced by the Sentencing Advisory Council and detailed in Sentencing Snapshot No 34: Sentencing Trends for Robbery in the Higher Courts of Victoria, 2002-3 to 2006-7. During the survey period, 119 people were sentenced in the higher courts for robbery. Of those people surveyed, 46 per cent received a sentence of imprisonment, 29 per cent a wholly suspended sentence, 12 per cent a community-based order and 8 per cent a partially suspended sentence.
According to the survey, between 2002-03 and 2006-07, the median length of imprisonment for robbery was one year and six months. The most common length of imprisonment imposed was one year when robbery was the principal offence. Accordingly, so it was submitted, this sentence of two years and six months' imprisonment with a non-parole period of one year and six months was out of line with general sentencing practice.
The Crown submitted in reply that the appellant's sentence was well within the range of sentences available for this kind of offending. It was argued that the learned sentencing judge had taken into account all matters relevant to the task at hand and that the appellant had failed to demonstrate that his Honour's sentencing discretion had in any way miscarried.
In our view, the Crown's submission should be accepted. The sentencing judge was entitled to conclude that this offence, involving as it did the application of significant force to Ms Salfate, with lasting consequences, should be viewed as serious. The appellant's criminal record was extensive and included a prior conviction for armed robbery. She had been treated leniently in the past but had failed to take advantage of that benevolence. The sentence was within the range properly open to the sentencing judge. The appeal should be dismissed.
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