R v Jame PHAN (also known as Van Linh DANG) [2016] NSWSC 483

R v Jame PHAN (also known as Van Linh DANG) [2016] NSWSC 483

Although the murder was inherently extremely serious because an innocent human life was taken, the offender's objective criminality for murder was of a very low order because his guilt rested on felony murder and accessorial liability, with the jury apparently finding that he foresaw the possibility of the gun being discharged but not the possibility of injury or death. The four armed robberies were planned, committed in company, and involved a firearm, with additional aggravating factors in the Villawood robbery, but the offender's guilty pleas, difficult background, drug addiction, remorse and favourable rehabilitation prospects warranted substantial moderation. Applying totality and...

Jurisdiction
Australia
Judgment Date
21 April 2016
Procedural Posture
Criminal Sentencing / Sentence After Jury Verdict of Guilty for Murder and Guilty Pleas to Aggravated Armed Robbery Offences
Outcome
Offender sentenced to an aggregate term of imprisonment of 20 years with a non-parole period of 14 years.
Legal Topics
['murder' 'constructive Murder' 'accessorial Liability' 'aggravated Armed Robbery' 'aggregate Sentence' 'non Parole Period' 'guilty Plea Discount' 'special Circumstances' 'rehabilitation']
['criminal Law' 'sentencing'] ['murder' 'constructive Murder' 'accessorial Liability' 'aggravated Armed Robbery' 'aggregate Sentence' 'non Parole Period' 'guilty Plea Discount' 'special Circumstances' 'rehabilitation']

Case Brief

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Procedural Posture

Criminal Sentencing / Sentence After Jury Verdict of Guilty for Murder and Guilty Pleas to Aggravated Armed Robbery Offences

Legal Issues

  1. 1 ['What aggregate sentence should be imposed for murder and four offences of robbery whilst armed with a dangerous weapon.' "How the offender's culpability for murder should be assessed where liability was based on constructive murder and accessorial liability." 'What aggravating factors, mitigating factors, guilty plea discounts and rehabilitation prospects should affect sentence.' 'Whether special circumstances justified departure from the statutory proportion between the overall sentence and the non-parole period.']

Ratio Decidendi

Although the murder was inherently extremely serious because an innocent human life was taken, the offender's objective criminality for murder was of a very low order because his guilt rested on felony murder and accessorial liability, with the jury apparently finding that he foresaw the possibility of the gun being discharged but not the possibility of injury or death. The four armed robberies were planned, committed in company, and involved a firearm, with additional aggravating factors in the Villawood robbery, but the offender's guilty pleas, difficult background, drug addiction, remorse and favourable rehabilitation prospects warranted substantial moderation. Applying totality and...

Court Disposition

Offender sentenced to an aggregate term of imprisonment of 20 years with a non-parole period of 14 years.

Orders

  • ['Sentenced to an aggregate term of imprisonment consisting of a non-parole period of 14 years, commencing on 12 October 2013 and expiring on 11 October 2027, together with a balance of term of six years, commencing on 12 October 2027 and expiring on 11 October 2033.' 'The first date on which the Offender will be...