R v Xe Van Pham - [2004] VSC 271

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1414 of 2004

THE QUEEN

XE VAN PHAM

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JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	21-30 June, 4 August 2004
DATE OF SENTENCE:	6 August 2004
CASE MAY BE CITED AS:	R v Xe Van Pham
MEDIUM NEUTRAL CITATION:	[2004] VSC 271

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Criminal Law - Sentencing - 2 Counts of Intentionally causing serious injury - Stabbing in anger of former partner and her 6 year-old son - Effective sentence of 10 years - Non-parole period of 7 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S. Pullen	Office of Public Prosecutions
For the Accused	Mr W. Stougiannos	Paul A Vale Pty

HIS HONOUR:

Xe Van Pham, in what follows, I will use the Australian rather than the Vietnamese order of names. You have been found guilty by a jury of two offences, both of intentionally causing serious injury. The offences arose out of your having stabbed two victims at Springvale South on 10 April 2003. The victims were Thu Tran and Simon Tran.

Before I state my findings as to the events of that day, and as to the events of preceding months, I would note that my findings must reflect the evidence which justified the two guilty verdicts. They must also reflect the jury verdicts of not guilty of attempted murder and burglary. My findings will also reflect my taking an adverse view as to your credibility. I have considered the accounts given by you to the police and to Dr Jager and to Mr Joblin, to whom I will later refer. In many respects those accounts differ from the accounts given on oath before me by Thu Tran and Simon Tran. In almost every respect where they differ, I have preferred their account to yours. I was more than satisfied as to their credibility. In other respects your accounts differ from evidence available from other sources. Your accounts include many inconsistencies, implausible propositions and self-serving claims. There were also significant omissions.

In February 2001, Thu Tran was living with her two children in the Springvale house that she had bought, taking out a mortgage. The two children were Simon, born in January 1997, and Tina, born in January 1999. To help meet the mortgage payments, she advertised for a boarder. You answered the advertisement. When Thu Tran said that she was willing to accept you, you moved in with your daughter, Joanne. In the ensuing weeks a close relationship developed between you and Thu Tran. You would have preferred that that close relationship continue. However, about two months after you moved in, Thu Tran, while remaining friendly, chose to distance herself from you. Although you moved out, you continued to visit her over the next 18 months.

During that 18 months, you made two visits to Vietnam. In Vietnam, you married Thu Tran’s sister Chi Tran. There are marked differences in the accounts before…

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 Xe Van Pham

Details

AGLC: R v Xe Van Pham [2004] VSC 271
Case: [2004] VSC 271
Decision Date: 6 August 2004

CaseChat Overview and Summary

In the case of R v Xe Van Pham, the appellant was convicted of two counts of intentionally causing serious injury to his former partner and her 6-year-old son. The incident occurred in a moment of anger, resulting in significant harm to both victims. The matter was brought before the court for sentencing, where the appellant's actions and the impact on the victims were thoroughly examined. The court was required to determine an appropriate sentence that reflected the severity of the crimes and provided adequate deterrence and rehabilitation.

The primary legal issues the court had to address were the appropriate sentencing principles to apply, the weight to be given to various aggravating and mitigating factors, and the overall sentence to be imposed, including the non-parole period. The court considered the nature and circumstances of the offences, the appellant's criminal history, and the impact of the crimes on the victims. The court also examined the appellant's background, including his personal circumstances, remorse, and prospects for rehabilitation. After carefully weighing all these factors, the court arrived at a decision on the appropriate sentence.

In its reasoning, the court held that the offences were of significant gravity due to the intentional nature of the attacks and the severe harm inflicted on the victims. The court recognised the appellant's background and personal circumstances but emphasised the need for punishment and deterrence. The court determined that the cumulative effect of the offences warranted a substantial custodial sentence. After considering the totality of the circumstances, the court imposed an effective sentence of 10 years, with a non-parole period of 7 years. This decision reflected the seriousness of the crimes and aimed to provide justice for the victims while also considering the appellant's potential for rehabilitation.

The court's final orders were that the appellant be imprisoned for a total of 10 years, with a non-parole period of 7 years. This sentence was imposed to reflect the gravity of the offences and to provide appropriate punishment, deterrence, and rehabilitation for the appellant. The court's decision was based on a careful consideration of the relevant sentencing principles and the specific circumstances of the case.

Orders