R v Phan

Case [2019] VSC 153 22 March 2019

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0246

THE QUEEN
v
JESSE PHAN	Accused

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JUDGE:	TAYLOR J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 December 2018
DATE OF SENTENCE:	22 March 2019
CASE MAY BE CITED AS:	R v Phan
MEDIUM NEUTRAL CITATION:	[2019] VSC 153

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CRIMINAL LAW – Sentence – Manslaughter – Stabbing – Plea of guilty – Impairment of mental functioning – Schizophrenia – Concurrent methylamphetamine use – Offending attributable to both impairment to mental functioning and drug use – Consideration of R v Verdins (2007) 16 VR 269, Wright v The Queen [2015] VSCA 333 and DPP v Davis [2017] VSCA 341 – General deterrence – Specific deterrence – Sound prospects for rehabilitation – Remorse – Sentence of eight years’ imprisonment with non-parole period of five years and six months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms M Mahady	John Cain, Solicitor to the OPP
For the Accused	Mr L Gwynn	Valos Black & Associates

HER HONOUR:

Jesse Phan, you have pleaded guilty to the manslaughter of Rodney Ballis on 16 February 2018. You stabbed Mr Ballis with a knife. He subsequently died from that single stab wound to the abdomen.

The maximum penalty for manslaughter is 20 years’ imprisonment.

Summary of Offending
Background

The Salvation Army operates the Flagstaff Crisis Accommodation Centre in West Melbourne. The Centre never closes and supplies accommodation, meals and welfare supports, including district nursing, GP visits, a homeless outreach psychiatric service and a disability homeless outreach service, for 64 men.[1]
[1] type="1">
In February 2018, you and Rodney Ballis were two of those men. You had each faced significant hardship in your life.

Mr Ballis endured the death of his two children, one from sudden infant death syndrome aged three months, and the other stillborn at six months’ gestation. His drug use had led to estrangement from his family, particularly after his mother’s death in 2003. At the time of his death, aged 43 years, he had last met his sisters five years earlier.

You, also aged 43 years at the time of your offending, had arrived in Australia as a refugee when four years old. Your family was fractured, but your real hardship has been your schizophrenia. Like Mr Ballis, you had turned to illicit drug use. You, too, were largely estranged from your family.

The value of the services offered by the Salvation Army to the vulnerable in our society cannot be overstated.

The early hours of Friday 16 February 2018

In the very early hours of 16 February 2018 you were in North Melbourne with a friend, using cannabis and, unsuccessfully, searching for more. You returned to the Flagstaff Crisis Accommodation Centre and met an associate, to whom you had earlier agreed to sell cannabis. She observed you to be belligerent and unlike yourself.

Your presentation was perhaps unsurprising given that you had, about a week prior to the offence, totally ceased taking your anti-psychotic medication.[2]…

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 [2019] VSC 153
Case: [2019] VSC 153
Decision Date: 22 March 2019

CaseChat Overview and Summary

The case of R v Phan involved the defendant, Phan, who was convicted of manslaughter following a stabbing incident. Phan pleaded guilty to the charge, and the dispute centred on the appropriate sentence to be imposed, given the circumstances of the offence and Phan’s mental health status. The Court of Appeal of Victoria heard the case.

The court was tasked with determining the appropriate sentence for manslaughter, considering the impact of Phan’s schizophrenia and concurrent methylamphetamine use on his mental functioning and behaviour at the time of the offence. The legal issues included the extent to which Phan’s mental impairment and drug use contributed to the offence, and how these factors should be weighed in sentencing, referencing relevant case law such as R v Verdins, Wright v The Queen, and DPP v Davis. The court also needed to balance considerations of general and specific deterrence, the prospects for Phan’s rehabilitation, and his expressed remorse.

In its reasoning, the court found that Phan’s offending was attributable to both his mental impairment and drug use. The court considered the principles set out in the referenced cases, concluding that Phan’s schizophrenia and methylamphetamine use significantly impaired his mental functioning, contributing to the offence. The court determined that a sentence of eight years’ imprisonment with a non-parole period of five years and six months was appropriate, taking into account the general and specific deterrence, the sound prospects for Phan’s rehabilitation, and his remorse. This sentence aimed to address the factors contributing to the offence while providing an opportunity for Phan to rehabilitate.

The court ordered Phan to serve a total of eight years in prison, with a non-parole period of five years and six months. This decision reflects the court’s comprehensive assessment of the mitigating and aggravating factors in Phan’s case, ensuring a just outcome that considers both the nature of the offence and the defendant’s circumstances.

Orders