Regina v Hung Van Pham - [1999] NSWCCA 225

CITATION: Regina v Hung Van PHAM [1999] NSWCCA 225

FILE NUMBER(S): CCA 60148 of 1998

HEARING DATE(S): 2 August 1999

JUDGMENT DATE:
2 August 1999

PARTIES :

REGINA
v
HUNG VAN PHAM

JUDGMENT OF: Levine J at 1; Smart AJ at 20

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/11/0510

LOWER COURT JUDICIAL OFFICER: Morgan DCJ

COUNSEL:
C Maxwell Q.C.
(Crown)
Applicant In Person

SOLICITORS: S E O'Connor
(Crown)

CATCHWORDS: Criminal Law - sentencing - robbery in company

DECISION: See paragraphs 19-21

IN THE COURT
OF CRIMINAL APPEAL

60148/98

LEVINE J
SMART AJ
MONMDAY 2 AUGUST 1999

REGINA v HUNG VAN PHAM

JUDGMENT

1 LEVINE J: The applicant (who appears in person aided by Mr Coen, interpreter) seeks an extension of time for his application for leave to appeal against the severity of a sentence imposed in the Sydney District Court by Her Honour Judge Morgan on 13 February 1998. 2 Mr Pham was sentenced for the offence of robbery in company with wounding, a crime for which the maximum penalty is 25 years. At the time of being sentenced for that offence, to which Mr Pham pleaded guilty, through his legal representatives he asked that other offences committed by him on 6 and 7 November 1996 be taken into account, being three charges of goods in custody and one charge of receiving. 3 The offence happened in these circumstances. That at about 1:10am on 17 April 1997 Mr Hadjisavvas who was 67 years old, was working in his shop in Surry Hills. Tho Than Le and the applicant entered the shop and went to the back. The victim approached the two men to ask whether he could assist them. Tho Than Le produced a pistol and demanded the money kept in the store. The applicant was armed with a Ghurkha style knife. The applicant and Tho Than Le then set about assaulting the store keeper, the applicant hitting him with the handle of the knife. 4 Not long after, the third person involved, Thanh Long Pham came inside, closed the shutter and kept a look out. He attempted to open the cash register and he, Thanh Pham, whilst Mr Le and this applicant were assaulting the shop keeper, struck him with two blows to the rear of the head with a bottle which he, Thanh Pham, had taken from one of the shelves. He continued to keep a look out whilst Le and this applicant continued assaulting the shop keeper and he removed a sum of money from his back pocket. 5 A passer by noticed what was happening and called the police who arrived and arrested Tho Than Le and Thanh Long Pham. 6 The applicant was discovered hiding in a cupboard at the rear of the shop and was also arrested. 7 Two hundred and fifty dollars belonging to the shop keeper was found on the footpath and police found a .32 calibre Browning pistol under a bucket in the rear toilet of the…

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 Regina v Hung Van Pham

Details

AGLC: Regina v Hung Van Pham [1999] NSWCCA 225
Case: [1999] NSWCCA 225
Decision Date: 2 August 1999

CaseChat Overview and Summary

In Regina v Hung Van Pham, the defendant was convicted of robbery in company, and the matter was before the Court of Appeal to consider the sentence imposed by the trial judge. The defendant, Hung Van Pham, was found guilty of robbing a convenience store while armed with a knife and in the company of two accomplices. The trial judge imposed a sentence of imprisonment, which Pham appealed on the grounds of excessiveness. The appeal raised issues concerning the appropriate weight to be given to various sentencing factors, including the nature of the crime, Pham's criminal history, and the circumstances of the offence.

The court considered the statutory framework governing sentencing for robbery in company, which requires the court to impose a sentence that is proportionate to the seriousness of the offence and reflects the need for deterrence, denunciation, and rehabilitation. The court examined the trial judge's reasons for the sentence, focusing on whether the sentence was manifestly excessive or inappropriate. The court also considered the principles of proportionality and the role of the appellate court in reviewing sentencing decisions. The court emphasised the importance of maintaining consistency in sentencing for similar offences and ensuring that sentences reflect the gravity of the crime and the culpability of the offender.

The court concluded that the trial judge had given appropriate weight to the relevant sentencing factors and had not imposed a manifestly excessive sentence. The court found that the sentence reflected the seriousness of the offence, the defendant's role in the crime, and the need for deterrence and denunciation. The court also noted that the sentence provided an opportunity for rehabilitation and was consistent with sentences imposed in similar cases. Consequently, the appeal was dismissed, and the original sentence of imprisonment was upheld.

Orders