New South Wales Supreme Court CITATION : Regina v Han Hoai Huynh [2004] NSWSC 627 HEARING DATE(S) : 6, 13, 17, May; 24 June; 9, 16, July 2004 JUDGMENT DATE : 16 July 2004 JUDGMENT OF : Newman AJ at 1 DECISION : I impose a head sentence of 7 years and 6 months (which rounds off my discount of 15% in favour of the prisoner), commencing on 25 March 2002 and expiring on 24 September 2009 and a non-parole period of 4 years, commencing on 25 March 2002 and expiring on 24 March 2006, when the prisoner will be eligble for release on parole. LEGISLATION CITED : Crimes Act (1900) NSW CASES CITED : R v Lowe (1984) 154 CLR 606 PARTIES : Regina Han Hoai Huynh FILE NUMBER(S) : SC 70108/03 COUNSEL : Mr P Conlon SC (Crown) Mr F Santisi (Prisoner) SOLICITORS : State DPP NSW Legal Aid Commission - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION NEWMAN AJ 16 JULY 2004 70108/03 REGINA V HAN HOI HUYNH SENTENCE 1 HIS HONOUR: Han Hoi Huynh is to be sentenced today for his participation in events which led to the death of Luu Khiem Lu on 20 March 2002. While originally charged with Mr Lu's murder, the prisoner's plea of manslaughter was accepted by the Crown in full satisfaction of the indictment. 2 Section 24 of the Crimes Act (1990) NSW prescribes a maximum penalty of 25 years imprisonment for the crime of manslaughter. 3 It is now my task to find the objective facts relating to the commission of the crime. In so doing I shall utilise the criminal standard of proof in finding facts, namely proof beyond reasonable doubt. 4 I should say at the outset that the Crown case against the prisoner was based on the concept of joint criminal enterprise. 5 On Wednesday 20 March 2002 the prisoner was residing at a granny flat at 16 Kingslea Place, Canley Heights. On that afternoon he was present at the flat together with three others. They were Terry Chau, VDN and Loc Dac Nguyen. 6 Following a suggestion made by one of the number that they sould go and get some money the group left the flat and entered a motor vehicle. The prisoner undertook the driving of the motor vehicle with Terry Chau sitting along side him the front passenger seat with the other two sitting in the back. The quartet had with them a loaded Beretta 9mm handgun and knives, which had been taken from the flat. 7 They drove to Canley Vale Road in the suburb of Canley Heights. There, at least one of the group observed the deceased Luu Khiem Lu, and his wife Thao Phuong Lu, closing their grocery store at 233A Canley Vale Road. 8 The prisoner then drove the car to Peel Street, Canley Vale, an adjacent street, and parked it. 9 Mr and Mrs Lu had also parked their white panel van in Peel Street, Mr Lu entered his vehicle by the driver's door and his wife sought to enter that vehicle by the passenger door. Mrs Lu did not enter the van because Terry Chau had seized her and held her against the van's side. In the meantime Mr Lu had entered the vehicle and, seated in the driver's seat, had wound down the side window. He was then approached by Loc Dac Nguyen who was armed with a 15cm kitchen knife. 10 The deceased suffered a number of defensive wounds to his hand and forearm but also a deep stab wound to his chest. Van Dien Nguyen then ran around to the passenger's side of the van and fired two shots from the Beretta into the rear near side tyre. He and his two accomplices then ran to the car in which the prisoner was still seated in the driver's seat. Once the others had entered the car the prisoner then proceeded to drive it away at high speed. 11 Mr and Mrs Lu had with them the sum of $4,100 which represented the stores takings for the day. Their assailants however failed to take the money with them. 12 As the car carrying the assailants departed, a blood stained knife was thrown from it. This was picked up by a Mr Anthony Canta and handed to police. Blood on the knife was identified as having come from the deceased. As the car carrying the assailant's departed the scene, a man named James Barnes walked across its path. The prisoner braked the vehicle to avoid Mr Barnes and someone in the assailant's vehicle fired two shots towards Barnes which missed him but struck a parked vehicle. 13 Meanwhile, Mr Lu had left his van and made his way to a shop on the corner of Peel Street and Canley Vale Road. He was taken from there to the Liverpool District Hospital where he underwent emergency surgery. Unfortunately he died on the following morning. 14 On 23 March 2002 the prisoner was involved with two other persons in the armed robbery of another grocery store in Canley Vale. Then, as it happened in the subject crime, the prisoner drove the motor vehicle used in that venture. Again during the course of that robbery shots were fired from the self-same Baretta 9mm handgun. 15 Following the commission of that latter crime, police executed a search warrant at the premises at 16 Kingslea Place, Canley Heights. During the course of that search the Baretta handgun was found in the shoebox. Not only that, the prisoner's fingerprints were found on a shoebox in which the handgun was found, and also on other items within the same box. 16 Upon these facts I do not find that there is sufficient evidence for me to conclude beyond reasonable doubt that, as the Crown contested, the prisoner, on first observing the Lu's, said "Oy, look, they're locking up the shop, that's good". Secondly there is insufficient evidence for me to find that it was the prisoner who fired the shot at Barnes. However, I do find that the prisoner was aware that :- a) Loc Dac Nguyen had a knife and b) someone in the group had possession of the 9mm Beretta handgun at the time of the commission of the subject crime. Again, I repeat, I have determined both these points utilising the criminal standard of proof and, may I say, to find otherwise would be to fly in the face of reality. 17 I am of course not sentencing the prisoner for his part in the robbery which took place on 23 March 2002. That sentence is to be determined in the District Court – I should add that the prisoner has been found guilty of that offence. However, that offence is of relevance here for two reasons. They are :- a) that the discovery of the 9mm Beretta handgun at the prisoner's premises was found in a search by police during the course of their investigations into the latter robbery and b) the prisoner's participation in the latter robbery is a matter to be taken into account when considering his claim tat he is remorseful for his participation in the events of 20 March 2002, which led to the death of Mr Lu. 18 These objective facts illustrate a gross breach of the criminal law by the prisoner. While it is true that he did not stab the deceased, it is the fact that he readily took part in the attempted robbery of an innocent storekeeper and his wife and that he was aware (as I have found) that at least two of his associates were armed when that venture was taking place. While again it is true that the prisoner was removed form the violence afforded by his companions upon Mr and Mrs Lu the fact that he was prepared to enter a criminal venture, where the risk of injury and indeed the risk of death to innocent people must have been a matter of which he was aware, places his criminal culpability at a high level. 19 I turn then to subjective matters raised on behalf of the prisoner. He is now 21, having been born in Vietnam on 27 October 1982. 20 It is said that his father was killed by Communists within a month of his birth. In 1986 his mother came to Australia, leaving the prisoner in the care of his grandmother and uncle. In 1995 the prisoner came to this country where he attended high school until 1997, when expelled in Year 9. After leaving school he obtained employment for a short time at a pizza shop in the Cabramatta area, but in fact, during the time since he left school he has not been in custody since leaving school has spent most of his time unemployed and receiving social security payments. 21 His criminal history is not vast. He was subject to two control orders by the Children's Court on drug offences. These occurred in 1999 and 2000. Apparently he spent a year in custody on a charge for which he was ultimately no billed. That of course is not a matter I can take into account, save I do accept Mr Santisi's submission that that year in custody would have had a disruptive effect upon the prisoner's life. I note from the Probation and Parole Report that he did use both heroin and cannabis prior to being incarcerated. Indeed I have read and have taken fully into account the contents of the Reports furnished by the Probation and Parole Service, save for those matters which Mr Santisi, on behalf of the prisoner, requested me to ignore – which I have. 22 I have also taken into account the sentence imposed by Whealy J on the prisoner's co-offender VDN, passed on 21 May 2004. In relation to the subject crime Whealy J sentenced the co-offender to a head sentence of 6 years and 9 months and a non-parole period of 3 years. VDN, while present at the side of Mr Lu's panel van, did not stab Mr Lu. Whealy J took into full account VDN's youth, he being some two years younger than the present prisoner. 23 In determining sentence, in accordance with what has fallen from superior courts, for instance R v Lowe (1984) 154 CLR 606, I must ensure parity exists between the sentence passed by Whealy J on VDN and the sentence I pass upon this prisoner. I have also taken into account material furnished by the Corrective Services Department and Mr Diment's psychological report. In his report of 5 July 2004 Mr Diment confirmed an opinion he had expressed in an earlier report concerning the prisoner. He said "it is significant in relation to his psychological development that I consider that he has had no effective parenting throughout his life (although he remains family oriented) – deceased father who he never knew, in early and later childhood was raised by a grandmother and uncle, conflicts with step father in important early teen years. This had left him vulnerable to peer influence and this combined unfortunately with regular drug use to lead him into trouble with the law". 24 To Mr Diment, and also in writing before this Court, the prisoner has expressed remorse for his actions. An acceptance of his expressions of remorse is somewhat muted by the fact that, being well aware of the results of his participation in the attempted robbery of Mr and Mrs Lu, he three days later took part in another robbery where weapons were carried. 25 I also take into account the fact that he has pleaded guilty. I do not accept that his plea was made at the earliest available opportunity but I have discounted the head sentence I would have otherwise imposed by the same factor as that used by Whealy J, namely, 15 percent. 26 In determining sentence Whealy J not only took into account the youth of VDM but also the fact that he had pleaded guilty to an assault upon Mrs Lu with intent to rob, being armed with a knife. This prisoner is not so charged. Whealy J, in determining the sentence for the charge of manslaughter involving the death of Mr Lu, used principles of totality, having regard to the sentence he passed in relation to the assault upon Mr Lu by VDN. 27 In my view the prisoner's youth and his prospects of rehabilitation constitute special circumstances. Accordingly, I shall vary the statutory proportion in relation to the non-parole period which I shall set. 28 The prisoner has been in custody since 25 March 2002. While he was not charged with this offence until 4 April 2002 I believe that it would be fair to the prisoner to backdate his sentence to the time he first went into custody, namely, on 25 March 2002. I propose to pass a head sentence slightly longer than that imposed by Whealy J on VDN and it is a longer non-parole period. I do this for two reasons :- a) the fact that Whealy 's head sentence of VDN for this crime was properly influenced by principles of totality – a factor which does not exist in this case – and b) the fact that VDN was even younger than this prisoner. VDN's age is a factor Whealy J gave full weight in determination of his sentence. 29 In the event I impose a head sentence of 7 years and 6 months (which rounds off my discount of 15% in favour of the prisoner) commencing on 25 March 2002 and expiring on 24 September 2009 and a non-parole period of 4 years, commencing on 25 March 2002 and expiring on 24 March 2006, when the prisoner will be eligible for release on parole. ********** Last Modified: 07/16/2007 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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