R v Phan

Case [2001] NSWSC 1069 22 November 2001

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Reported Decision:
126 A Crim R 257

New South Wales

Supreme Court

CITATION: REGINA v. PHAN [2001] NSWSC 1069

CURRENT JURISDICTION: Criminal

FILE NUMBER(S): SC No. 70090 of 1998

HEARING DATE(S): 09/11/01; 13/11/01; 22/11/01

JUDGMENT DATE:
22 November 2001

PARTIES :

REGINA v.
PHAN, Vinh Ngoc

JUDGMENT OF: Greg James J at 1

COUNSEL : Crown: T. Hoyle, SC.
Off: G. Wendler

SOLICITORS: Crown: S.E. O'Connor
Off: Van Houten

CATCHWORDS: Criminal law - sentence - plea of guilty - accessory after the fact to murder - co-operation and undertaking to give evidence against co-accused - evidence assessed as valuable - extensive period of prior custody - bail refused on more serious charge now withdrawn - appropriate form of sentence.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CASES CITED: Thomson & Houlton (2000) 49 NSWLR 383
Darwiche [1999] NSWCCA 293
Leonard [2000] NSWCCA 28

DECISION: A sentence of two years to date from 22 November 2001. Suspend the execution of the whole of the sentence. Direct the offender be released from custody on condition that he enters into a good behaviour bond for the term of the sentence. Thta bond is to contain a condition that the offender informs the Office of the Director of Public Prosecutions of his address from time to time as it may be during the entire term of the sentence.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

GREG JAMES, J.

THURSDAY 22 NOVEMBER 2001

No. 70090 of 1998 - REGINA v. VINH NGOC PHAN

SENTENCE

1 HIS HONOUR: The offender Vinh Ngoc Phan has pleaded guilty before me on 9 November 2001 to being an accessory after the fact to the murder by Bao Pham of the deceased Zi Qiang Jin (Jimmy Jin) on 11 July 1997.

2 At about 9:20 pm on that day, in an unnamed lane at Fairfield, the deceased died, having been shot three times to the head, neck and back. There was evidence that the deceased was shot in the head from different directions. There was evidence tending to suggest that more than one weapon was used in shooting.

3 At the time of the shooting he was seated in the driver's seat of a small sedan. The engine was running and the vehicle's transmission was in drive. He had apparently left his brother's home a short distance from the scene of the death shortly prior to his death after receiving a telephone call in which he had expressed his reluctance to go out but had agreed to go.

4 There was evidence to connect Bao Pham with the deceased. There was no evidence connecting this offender with the deceased, by way of prior association.

5 It was the Crown case against this offender on this charge that he was present at the scene, indeed in the car, that presence being admitted by him to the police eventually during the investigation, and no doubt admitted in consequence of the finding at the scene of his blood and of…

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 [2001] NSWSC 1069
Case: [2001] NSWSC 1069
Decision Date: 22 November 2001

CaseChat Overview and Summary

In the matter of R v Phan, the defendant pleaded guilty to being an accessory after the fact to murder, having aided and abetted the principal offender after a fatal stabbing. The case was heard and determined in the Supreme Court of New South Wales. The primary legal issues the court had to resolve related to the appropriate form of sentence for the defendant, considering the nature of his involvement, his cooperation with authorities, and his extensive prior custody. The court also had to take into account the value of his evidence against the co-accused, which had been assessed as significant.

The court addressed the sentencing by first acknowledging the defendant's cooperation and the value of his evidence, which played a critical role in securing a conviction against the principal offender. The defendant's extensive prior custody was noted, but the court also considered the impact of his refusal of bail on a more serious charge, which was subsequently withdrawn. After weighing these factors, the court determined that an appropriate form of sentence would reflect both the defendant's culpability and the mitigating aspects of his case. The sentence ultimately imposed by the court balanced the need for punishment with the recognition of the defendant's substantial cooperation with law enforcement.

The Supreme Court of New South Wales ruled that the defendant's actions, though contributing to the crime, were significantly mitigated by his cooperation and the value of his evidence. The court imposed a sentence that considered his prior custody and the circumstances surrounding his bail. The final orders of the court reflected a sentence that recognised the mitigating factors while also ensuring that the defendant was held accountable for his role in the crime.

Orders