R v Van Hong Pham [2005] NSWCCA 94

R v Van Hong Pham [2005] NSWCCA 94

The Court held that s 57 of the Crimes (Sentencing Procedure) Act 1999 did not dictate the commencement date because the escape occurred while the Respondent was in custody serving the balance of parole, not during a current non-parole period or a term without a non-parole period. The commencement date was therefore governed by s 47. Although the 18 month head sentence and 12 month non-parole period were within range, backdating the sentence to 15 June 2004 failed to reflect the seriousness of the escape, the lengthy period at large, reoffending while at large, and the need for a meaningful additional period of custody, and was manifestly inadequate. The appropriate commencement date was...

Jurisdiction
Australia
Judgment Date
22 March 2005
Procedural Posture
Crown Appeal Against Sentence / Appeal to the New South Wales Court of Criminal Appeal From a District Court Sentence Imposed After a Plea of Guilty to Escaping Lawful Custody
Outcome
Crown appeal allowed; sentence quashed and Respondent resentenced.
Legal Topics
['escape From Lawful Custody' 'manifest Inadequacy' 'commencement Date of Sentence' 'non Parole Period' 'parole Revocation' 'deportation as a Sentencing Consideration' 'totality' 'general Deterrence']
['criminal Law' 'sentencing'] ['escape From Lawful Custody' 'manifest Inadequacy' 'commencement Date of Sentence' 'non Parole Period' 'parole Revocation' 'deportation as a Sentencing Consideration' 'totality' 'general Deterrence']

Case Brief

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Procedural Posture

Crown Appeal Against Sentence / Appeal to the New South Wales Court of Criminal Appeal From a District Court Sentence Imposed After a Plea of Guilty to Escaping Lawful Custody

Legal Issues

  1. 1 ['Whether the sentencing judge took into account that the Respondent was subject to a deportation order.' 'Whether the backdating of the sentence to 15 June 2004 made the sentence manifestly inadequate.' 'Whether s 57 of the Crimes (Sentencing Procedure) Act 1999 required or permitted the sentence for escape to commence consecutively on a particular date where the offender was in custody serving the balance of parole.' 'Whether the sentence adequately reflected the objective seriousness of escape, general deterrence, personal deterrence and totality.']

Ratio Decidendi

The Court held that s 57 of the Crimes (Sentencing Procedure) Act 1999 did not dictate the commencement date because the escape occurred while the Respondent was in custody serving the balance of parole, not during a current non-parole period or a term without a non-parole period. The commencement date was therefore governed by s 47. Although the 18 month head sentence and 12 month non-parole period were within range, backdating the sentence to 15 June 2004 failed to reflect the seriousness of the escape, the lengthy period at large, reoffending while at large, and the need for a meaningful additional period of custody, and was manifestly inadequate. The appropriate commencement date was...

Court Disposition

Crown appeal allowed; sentence quashed and Respondent resentenced.

Orders

  • ['Crown appeal allowed.' 'Quash the sentence below, and in lieu sentence the Respondent to imprisonment for 18 months, with a non-parole period of 12 months, each to date from 8 October 2004.' "Direct the Respondent's release on parole on 7 October 2005."]