Pham v R [2019] NSWCCA 211

Pham v R [2019] NSWCCA 211

Both sentences were manifestly excessive. Although the aggravated break and enter was reasonably described as at the lower end of mid-range, taking account of the Form 1 matters, the applicant's subjective circumstances, and the need for general and specific deterrence, it did not warrant the sentencing judge's starting point of 8 years and 1 month with a 6 year non-parole period. The common assault involved a push causing a stumble and was no higher than mid-range for s 61 offending; treating the home invasion context as aggravating would double count criminality already reflected in the first offence. Resentencing was required, with only one month accumulation because the common assault...

Jurisdiction
Australia
Judgment Date
04 September 2019
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentences Imposed in the District Court
Outcome
Leave to appeal granted; appeal allowed; District Court sentences set aside; applicant resentenced.
Legal Topics
['manifest Excess' 'aggravated Break, Enter and Commit Serious Indictable Offence' 'assault Occasioning Actual Bodily Harm' 'common Assault' 'form 1 Offences' 'objective Seriousness' 'specific Deterrence' 'accumulation and Concurrence']
['criminal Law' 'sentencing' 'appeals'] ['manifest Excess' 'aggravated Break, Enter and Commit Serious Indictable Offence' 'assault Occasioning Actual Bodily Harm' 'common Assault' 'form 1 Offences' 'objective Seriousness' 'specific Deterrence' 'accumulation and Concurrence']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentences Imposed in the District Court

Legal Issues

  1. 1 ['Whether the sentences imposed for aggravated break, enter and commit serious indictable offence and common assault were manifestly excessive.' 'Whether the overall effective sentence and degree of accumulation were unreasonable or plainly unjust.' 'How the objective seriousness of an offence under s 112(2) of the Crimes Act 1900 (NSW) should be assessed given the range of possible serious indictable offences and aggravating circumstances.']

Ratio Decidendi

Both sentences were manifestly excessive. Although the aggravated break and enter was reasonably described as at the lower end of mid-range, taking account of the Form 1 matters, the applicant's subjective circumstances, and the need for general and specific deterrence, it did not warrant the sentencing judge's starting point of 8 years and 1 month with a 6 year non-parole period. The common assault involved a push causing a stumble and was no higher than mid-range for s 61 offending; treating the home invasion context as aggravating would double count criminality already reflected in the first offence. Resentencing was required, with only one month accumulation because the common assault...

Court Disposition

Leave to appeal granted; appeal allowed; District Court sentences set aside; applicant resentenced.

Orders

  • ['Leave to appeal granted.' 'The appeal is allowed.' 'The sentences imposed by Culver DCJ in the District Court on 21 May 2018 are set aside.' 'On charge No H127586502/1 of aggravated break, enter and commit serious indictable offence on 11 September 2017 at Carramar, taking into account the offences on the Form 1,...