New South Wales Court of Criminal Appeal CITATION : REGINA v. HUYNH [2003] NSWCCA 239 HEARING DATE(S) : Monday 1 September 2003 JUDGMENT DATE : 1 September 2003 JUDGMENT OF : Dunford J at 23; Greg James J at 1 DECISION : It is appropriate for this court to intervene and to pass in lieu of the sentence passed by the learned trial judge a sentence of six and a half years to date from 15 October 2003 and to expire on 14 April 2010 with a non-parole period of four years to commence on 15 October 2003 and to expire on 14 October 2007. The sentence for the offence of assault occasioning actual bodily harm of a two year fixed term should stand but commence upon 15 October 2002 and expire on 14 October 2004. This would mean that there would be an overall sentence of some seven and a half years imprisonment with a five year non-parole period. The sentence would commence on 15 October 2002 and expire on 14 October 2010, the non-parole period to commence the same date but would expire on 14 October 2007. The earliest date upon which the applicant might be eligible for parole would be 14 October 2007. CATCHWORDS : Criminal law - sentence - appeal - objective circumstances - multiple offences - cumulation - sentence for one offence excessive - sentence reduced. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 CASES CITED : Pearce (1998) 194 CLR 610 PARTIES : REGINA v. HUYNH, Tai Van FILE NUMBER(S) : CCA No. 60162 of 2003 COUNSEL : Crown: P. Miller App: S. Corish SOLICITORS : Crown: S.E. O'Connor App: D.J. Humphreys LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/0072 FILE NUMBER(S) : LOWER COURT Nield, DCJ. JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL No. 60162 of 2003 DUNFORD, J. GREG JAMES, J. MONDAY 1 SEPTEMBER 2003 REGINA v. TAI VAN HUYNH Judgment 1 GREG JAMES J: This is an application for leave to appeal against sentences imposed by his Honour Judge Nield QC in the District Court of New South Wales at Parramatta following a trial at which the offender pleaded not guilty to two charges, the first being a charge of robbery in company, the second being a charge of assault occasioning actual bodily harm. 2 Following the verdict of the jury which was a verdict of guilty on each charge, his Honour sentenced the offender for the offence of robbery in company, an offence punishable by a maximum penalty of 20 years imprisonment, to a term of imprisonment of eight years commencing 15 October 2003 and expiring 14 October 2011. In respect of that sentence his Honour imposed a non-parole period of five years expiring on 14 October 2008. 3 For the offence of assault occasioning actual bodily harm, an offence punishable by a maximum penalty of five years imprisonment, his Honour sentenced the offender to imprisonment for a fixed term of two years to commence on 15 October 2002 and to expire on 14 October 2004. It can therefore be seen that one year of the sentences overlapped. The effective total sentence thus passed by his Honour was one of imprisonment for nine years with a non-parole period of six years. 4 The applicant had been at the time of the commission of the instant offences on parole. He had on 15 November 2001 failed to appear at Burwood Local Court in relation to a matter for which he was on bail to that court to that date. The Parole Board ordered the revocation of the applicant's parole and directed that the parole order be treated as having been revoked on 4 August 2001. He was arrested on 6 December 2001 and when arrested was charged with the matters the subject of this appeal. He has been in continuous custody since. 5 In a careful and closely reasoned judgment his Honour the trial judge reviewed the circumstances of the offence and all the matters to which he was required, particularly by s.21A of the Crimes (Sentencing Procedure) Act 1999, to have regard. His Honour referred to the circumstances of the commission of the offence in the following way:- "As to the robbery of and assault upon the victim this, stated briefly, is what happened. Shortly after he had left a train at Lidcombe railway station, Mr. Wong was accosted by two males of Asian appearance, one of whom was the offender. The offender's co-offender told Mr. Wong that he had a knife and that he, Mr. Wong, must go with them. The offender's co-offender took Mr. Wong's wallet and mobile telephone and demanded that Mr. Wong tell him his personal identification number for his telephone. Being fearful of what might happen to him, Mr. Wong told them the personal identification number for his telephone. As they walked along, they came upon some people walking towards them. After they had passed these people, Mr. Wong ran off in the hope of escaping from the offender and his co-offender. However, he was chased and caught and attacked by the offender and his co-offender. The assault took place in the driveway of 3 Railway Parade at the corner with Clarence Street at Lidcombe just as Ms. Donna Natale was driving her car into the driveway. Notwithstanding Mrs. Natale's presence, the offender and his co-offender continued their assault upon Mr. Wong and, as they did so, the offender put his hand on the driver's side of the bonnet of Mrs. Natale's car, leaving a fingerprint on it. His fingerprint linked him positively to the robbery of and assault upon Mr. Wong. Mr. Wong lost his wallet containing his identification papers, $40 Australian, $1,000 Hong Kong and his mobile telephone." 6 It is apparent that not only were there two charges but there were two critical events in this period of criminality separated by Mr. Wong's attempt to escape and the chase by the offenders of him after the robbery and prior to their assault upon him. As his Honour's remarks make clear in a later passage, Mr. Wong suffered some considerable injury during the punching and kicking by the offender and the co-offender of him in the assault. Other material not referred to by his Honour in the judgment makes it clear that Mr. Wong woke up from a period of unconsciousness in hospital with his face covered with blood, although he did not sustain any facial fractures. 7 The learned trial judge enumerated matters that he took into consideration. It is not necessary to review these in detail as no challenge has been made to his Honour having taken into account the particular matters nor is it suggested that he failed to take into account any particular matter. 8 It is, however, submitted that his Honour fell into error in three ways. Firstly, that the sentence, and in particular the sentence for the offence of robbery in company, was manifestly excessive; secondly, that his Honour erred in failing to have sufficient regard to the applicant's subjective circumstances; thirdly, that his Honour erred in the exercise of his discretion in accumulating the sentences for the year that he did and in accumulating these sentences upon the head sentence the applicant had been serving on parole at the time which the offence was committed. 9 It is convenient to turn initially to the second ground. The learned trial Judge set out the relevant subjective circumstances to which counsel has taken us in his remarks on sentence. He noted that the offender was 27 years and five months at the time of the commission of the offence. He had been born in South Vietnam and was the eighth of his parents nine children. His father died during 1990. His mother died on 24 January 2002. Other material in the trial papers indicates that the offender was disturbed at being unable to visit his mother in Vietnam prior to her death. The offender was raised in a rural setting and escaped from Vietnam in 1987 when aged 13 years. He lived in a refugee camp in Malaysia for some nine months and emigrated from there into Australia with his brother and sister toward the end of 1987. 10 He had been educated at Chester Hill High School, Canterbury High School and then Marrickville High School having lived in Sydney with an uncle but was expelled from each High School for disobedience. He had a limited education not completing Year 10. He had held one job for a period of time as a press operator and had apparently enjoyed good health. 11 His Honour specifically rejected that matters referred to in a psychologist's report were of useful bearing from the point of view of sentence upon the circumstances of the offender's commission of the subject offence. 12 He is a single person with no dependents who had when young commenced the use of alcohol and drugs. He had attempted apparently to cease the consumption of alcohol and drugs but had been found twice with a prohibited drug in his urine sample whilst in gaol. 13 As against these, the trial Judge referred to the applicant's prior criminal record. He had been dealt with for some 22 offences, nine in the Children's Court, four in the Local Court and nine in the District Court. The offences included an offence of aggravated robbery with wounding, an offence of malicious wounding, two offences of assault occasioning actual bodily harm, four offences of assault, one offence of assaulting a police officer in the execution of his duty, offences of kidnapping, breaking, entering and stealing and using a motor vehicle without the consent of the owner. His Honour said:- "It is clear beyond doubt that the offender has learned nothing whatsoever from his previous convictions and the penalties imposed upon him therefore." 14 The subjective circumstances to which his Honour referred were the subject of a submission that the applicant's history of dislocation as a refugee from Vietnam, the loss of his parents, his drug addictions and the expression of regret by him in his evidence for having committed this offence were such as to show that the sentence exceeded that which was appropriate for that reason alone. I do not accept that submission, particularly when one has regard to the applicant's prior offences and the commission of this offence whilst on parole. 15 It is convenient then to turn to the question of cumulation. It was submitted that his Honour had erred in passing, as he was required to do, consonant with Pearce v. The Queen (1998) 194 CLR 610, separate sentences for the offences of robbery in company and assault occasioning actual bodily harm and then cumulating, to the extent that he did, those sentences since it was submitted that the offences were so close in time, involved the same victim and the same offenders as to constitute a single continuing episode. Even should that be accepted, though as I have already referred to the two events were separated by the victim's attempt to flee, nonetheless it does not seem to me that it was not open to his Honour acting in accordance with a sound discretion to have passed sentence in a way which involved a degree of cumulation and I do not see that complaint might properly be made about an effective additional component of one year of full-time custody to reflect the additional offence. In my view, that ground also should be dismissed. 16 That takes me then to the last submission made which was in support of ground one in the notice of appeal. The trial judge concluded that having regard to what he had said concerning the offences and the offender and balancing those features:- "I have determined that the sentence for the robbery in company offence must be imprisonment for eight years and the sentence for the assault occasioning actual bodily harm offence must be imprisonment for three years." 17 His Honour then had regard to the principle of totality and determined that the overall sentence must be imprisonment for nine years. His Honour reached the conclusion that this sentence must be passed particularly in the light of what his Honour said concerning his expectation that:- "As history has the habit of repeating itself his history of criminal offending will repeat itself after his release from prison." 18 In his view there had to be passed a sentence with a substantial and condign deterrent aspect. His Honour said:- "In view of the offender's criminal record, including, as it does, twice having breached his parole, he must be reminded yet again and loudly and clearly that repeat offending will not be condoned nor tolerated. The sentences imposed upon him must stand as a warning to others who may think of doing what he has done." 19 His Honour doubted the offender's protestations of contrition and doubted any motivation towards any rehabilitation. His Honour treated the breach of parole as an aggravating feature of the offences and having regard to s.21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 his Honour was plainly right to do so. Even though his Honour's direction that the sentences should commence at the expiration of the parole period, parole having been revoked, and his Honour having treated the breach of parole as an aggravation and the Parole Board having revoked the parole, means that in three different ways the appellant must pay for his breaching parole by the commission of this offence, it does not seem to me that that is not what the law provides for. Indeed it is a consequence of having enjoyed conditional liberty upon an undertaking to be of good behaviour that, if you breach that undertaking, you aggravate your culpability for offence you commit which constitutes the breach, you surrender the prospect of liberty which you have enjoyed conditionally upon your not committing a breach and you must expect to serve in custody the sentence from the custodial nature of which you had been liberated conditionally. 20 That being said when I turned to the actual facts of the offender's involvement in the offence of robbery it can be seen that it did not include his performing the role of threatening the victim explicitly and it did not include his involvement in any direct application of corporal violence, even to the extent of his personally taking the victim's property. He did punch and kick the victim and in this regard I see no possible error in the sentence of a fixed term of two years for the assault. However, I have come to the conclusion, notwithstanding the able submissions put by the learned Crown Prosecutor, that the sentence of eight years for the robbery in company offence was well in excess of that governed by the exercise of a sound discretion having regard to the offender's role and the objective circumstances of that offence, notwithstanding the applicant's prior record and that the offence had been committed on parole. 21 I would, therefore, consider that it is appropriate for this court to intervene and to pass in lieu of the sentence passed by the learned trial judge a sentence of six and a half years to date from 15 October 2003 and to expire on 14 April 2010 with a non-parole period of four years to commence on 15 October 2003 and to expire on 14 October 2007. The sentence for the offence of assault occasioning actual bodily harm of a two year fixed term should stand but commence upon 15 October 2002 and expire on 14 October 2004. This would mean that there would be an overall sentence of some seven and a half years imprisonment with a five year non-parole period. The sentence would commence on 15 October 2002 and expire on 14 October 2010, the non-parole period to commence the same date but would expire on 14 October 2007. The earliest date upon which the applicant might be eligible for parole would be 14 October 2007. 22 Such a sentence of course means that I accept, as the trial judge did, that there are special circumstances arising from the accumulation and from the dating of the sentence commencement date such as warrant a non-parole period of the length to which I have referred. 23 DUNFORD, J: I agree. The orders will be as indicated by Greg James J. ********** Last Modified: 09/05/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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