New South Wales Court of Criminal Appeal CITATION: R v Huynh [2005] NSWCCA 220 HEARING DATE(S): 30 May 2005 JUDGMENT DATE: 17 June 2005 JUDGMENT OF: Simpson J at 1; Barr J at 49; Latham J at 50 DECISION: (i) leave to appeal granted; (ii) appeal allowed, sentence imposed in the District Court quashed; (iii) in lieu thereof the applicant sentenced to a non-parole period of three years and three months commencing on 2 April 2004 and expiring on 1 July 2007, and a balance of term of two years and one month, expiring on 1 August 2009. CATCHWORDS: application for leave to appeal against sentence - aggravated break, enter and commit a serious indictable offence - plea of guilty - standard non-parole period - standard non-parole period applicable to sentencing after trial - departure from standard non-parole period - finding of special circumstances - failure to give effect to finding of special circumstances - discount for plea of guilty - whether offence middle of the range of gravity of offences of its kind - element of the offences wrongly taken into account as a circumstance of aggravation - whether sentence manifestly excessive Crimes Act 1900, s4, s112(2) Crimes (Sentencing Procedure) Act 1999, s21A, s44, Part 4, Division 1A, Subs54A(2), S54B LEGISLATION CITED: Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 Probation and Parole (Serious Offences) Amendment Act 1987, s5, s20A Sentencing Act 1989, s5 R v Moffitt (1990) 20 NSWLR 114 CASES CITED: R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 Regina v Way [2004] NSWCCA 131; 60 NSWLR 168 Crown - Respondent PARTIES: Applicant - Quang Thanh Huynh FILE NUMBER(S): CCA 2005/410 V Lydiard - Crown COUNSEL: H Dhanji - Applicant S Kavanagh - Crown SOLICITORS: SE O'Connor - Applicant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/21/3060 LOWER COURT JUDICIAL OFFICER: English DCJ IN THE COURT OF CRIMINAL APPEAL 2005/410 SIMPSON J BARR J LATHAM J Friday 17 June 2005 REGINA v Quang Thanh HUYNH Judgment 1 SIMPSON J: The applicant seeks leave to appeal against a sentence imposed upon him in the District Court at Campbelltown by Judge English on 27 August 2004 following his plea of guilty to an offence of aggravated break, enter and commit a serious indictable offence, a charge brought pursuant to s112(2) of the Crimes Act 1900. That sub-section provides a maximum penalty of imprisonment for 20 years for the offence. The circumstance of aggravation was that the offence was committed in company. 2 The offence having been committed on 22 December 2003, the applicant came for sentence under the sentencing regime provided for by the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"), as amended by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, ("the Standard Minimum Sentencing Act") and, of particular relevance, in accordance with Part 4, Division 1A of the Sentencing Procedure Act. Pursuant to that Division, a standard non-parole period of five years is fixed for offences against s112(2). Judge English sentenced the applicant to imprisonment with a non-parole period of five years and a balance of term of three years, commencing on 2 April 2004. facts 3 The relevant facts are in very short compass. During the morning of 22 December 2003 the applicant, in company with another male, smashed the glass door of domestic premises in Punchbowl and entered the house. There either or both of the men collected a great deal of personal property, including jewellery, watches and precious stones and cosmetics. They placed some of these items in a backpack which also belonged to the occupants of the house and others in the applicant's pockets. 4 The two men were actually in the premises when the son of the occupants (who happened to be an off-duty police officer) arrived, in company with a friend. He attempted to confine the two men by use of the security door but they forced it open and in the process broke the door and did considerable damage. They ran in different directions. The police officer chased the applicant, who was carrying the backpack. He caught the applicant as he attempted to climb over the front gate or fence and a struggle ensued during which the applicant threw a number of punches at him, causing him to fall to the ground. The police officer's friend came to his assistance, as did a nearby neighbour, and the applicant was restrained. Police attended and the applicant was arrested. 5 As a consequence, all of the property which had been stolen was recovered. The property was valued at between $90,000 and $100,000. subjective circumstances 6 Evidence of the applicant's subjective circumstances was put before English DCJ by way of a pre-sentence report, the report of a clinical forensic psychologist, Mr W John Taylor, and the oral evidence of the applicant himself. From this the following emerged. The applicant was born on 25 April 1979 in Vietnam. He was, accordingly, 24 years of age at the time of the offence. He is the middle of five children in his family which migrated to Australia when he was a small child. Initially the family was close and stable. However, when the applicant was about 12 his mother was badly burned and was hospitalised for approximately a year. This appears to have disrupted the stability of the family. The applicant's father spent most of his time at the hospital. The applicant became depressed and began to truant and to mix in unsuitable company. He began using drugs, commencing with marijuana at about the age of 14, progressing to smoking heroin at 17 and injecting the latter at 21. At about 24 he began using amphetamines and was using both amphetamines and heroin in the months leading up to the present offence. 7 His father died when he was 21 years of age and this greatly affected him and, according to him, gave rise to an escalation in his drug use. However, Mr Taylor's report recounts that the applicant had significant disciplinary problems whilst still at school, resulting in four suspensions and ultimate expulsion. This, plainly, predated his father's death. 8 Both of his brothers have had brushes with the law and have served time in gaol. 9 He himself has a criminal record, which commenced in 1966 with driving offences, and contains entries for resisting police, receiving, goods in custody (seven entries) and assaulting police. On 11 February 2004 he was sentenced to imprisonment for three months in respect of an offence of goods in custody; on 28 April of that year he was sentenced to imprisonment for 18 months with a non-parole period of six months; and on 18 October to a total term of imprisonment for two and a half years, with a non-parole period of two years. The imposition of each of the terms of imprisonment post-dates this offence. However, since the applicant was arrested on the day of the offence presently under consideration, and has remained in continuous custody since then, the offences in respect of which the sentences were imposed obviously predated the offence presently under consideration. At the time of committing this offence, the applicant had not been subject to a sentence of full time custody. Until February 2004, the penalties to which he was subject had been non-custodial, but included suspended terms of imprisonment. 10 The applicant gave evidence of the circumstances of his incarceration up to the time of sentencing. He said that he was "scared" being in custody, had been threatened by Aboriginal inmates as a result of which he had gone onto protection, and had put his name down to participate in drug and alcohol programs. He expressed remorse for his participation in the offence. He had been taking anti-depressant medication. the remarks on sentence 11 Judge English recounted the circumstances of the offence and the subjective matters which I have outlined. No challenge was made to her findings of fact. 12 She expressed her intention of allowing a discount on the sentence of 20% in recognition of the utilitarian value of the plea of guilty. She noted that the applicant had spent approximately four months in custody referable to this offence and, accordingly, backdated the sentence in order to reflect that. She recognised the objective seriousness of the offence and correctly directed herself as to the maximum penalty. She expressly concluded that only a term of imprisonment would satisfy the requirements of general and specific deterrence. 13 Relevantly for the grounds of appeal, to which I will shortly come, her Honour said: "I find the objective seriousness of the offence places it towards the mid-range for offences of a scale constructed for such offences, and whilst not all of the goods found in his possession came from the premises, there was a substantial amount of property removed, although it was recovered. It was jewellery, which is, of course, of significant sentimental value, and the occupants of the house had found their house to be substantially damaged and ransacked. I am not persuaded, in those circumstances, that the standard non-parole period of five years should be varied." 14 Her Honour also said: "I find there is a need for lengthy and supervised rehabilitation, including full-time residential rehabilitation, to assist this offender in maintaining a drug-free life, I having found he is not without prospects." 15 Her Honour went on to impose the sentence I have already mentioned. That included the standard non-parole period, without any discount for the plea of guilty. the grounds of the application 16 Four grounds in support of the application were pleaded. They are: "1. The learned sentencing judge erred in failing to take into account the applicant's plea of guilty when considering the application of the standard non-parole period. 2. The learned sentencing judge erred in finding that the offence was 'towards the mid-range' of offences. 3. The learned sentencing judge erred in, having found special circumstances pursuant to s44(2) of the Crimes (Sentencing Procedure) Act 1999, failing to take into account this finding in determining the non-parole period. 4. The sentence is manifestly excessive." 17 I shall deal with each ground, and the argument directed towards it, in turn. Ground 1: the plea of guilty 18 S44 of the Sentencing Procedure Act (as amended by the Standard Minimum Sentencing Act) relevantly provides as follows: "44 (1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). (2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for being more (in which case the court must make a record of its reasons for that decision). (3) ... (4) ..." 19 Subs54A(2) and S54B of the Sentencing Procedure Act (introduced by the Standard Minimum Sentencing Act amendments) relevantly provide as follows: "S54A(2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division." "S54B (1) This section applies when a court imposes a sentence of imprisonment for an offence set out in the Table to this Division. (2) When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period. (3) The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in section 21A. (4) ... (5) ..." 20 S21A contains a catalogue of aggravating factors and another of mitigating factors which sentencing courts are required to take into account in the sentencing procedure. 21 As indicated above, the Table to Division 1A prescribes five years as the standard non-parole period for the offence committed by the applicant. 22 The fact that the judge assessed the applicant's offence as "towards the mid-range for offences of a scale constructed for such offences" did not dictate that she impose the statutory standard non-parole period. Before taking that course, it was necessary that the judge consider whether there were reasons for departing, either upwards or downwards, from that sentence. It is conceivable (although it is difficult to contemplate in what circumstances it would be appropriate) that, even in the case of an offence expressly assessed as "mid-range", a sentencing judge might find reasons for imposing a longer non-parole period. 23 This court has considered the proper construction of the amendments made by the Standard Minimum Sentencing Act: Regina v Way [2004] NSWCCA 131; 60 NSWLR 168. 24 Relevantly for present purposes, the Court held (at [68] and [69]) that the prescribed standard non-parole periods in the Table must be taken as having been intended to apply to a mid-range case where an offender was convicted after trial. They did not affect the principle of sentencing concerning reduction in sentences in recognition of the utilitarian value resulting from a plea of guilty: see R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. The applicant was therefore entitled to expect, in accordance with the guideline promulgated in Thomson and Houlton, a reduction of between 10% and 25% on the standard non-parole period. 25 As subs54B(2) and (3) make clear, a court may depart from the standard non-parole period, but only for expressed reasons as provided for by s21A of the Sentencing Procedure Act. Thus, it would have been open to her Honour to have imposed the standard non-parole period, even in the face of the applicant's plea of guilty. However, in my opinion, it would be contrary to proper sentencing practice, and contrary to subs(4) which requires reasons for departure from a standard non-parole period to be given, to do so without explanation. Particularly in the light of her Honour's finding that the applicant's offence was "towards" (not "of") the mid range, the applicant could ordinarily have expected to be sentenced no more harshly than in accordance with the standard non-parole period, but incorporating an appropriate discount to acknowledge the utilitarian value of the plea of guilty. And indeed, her Honour expressed her intention of allowing a discount of 20%. The two conclusions that the offence was "towards" the mid range, and that the applicant's sentence should be discounted by 20%, simply could not sit with the imposition of the standard non-parole period. In my opinion, her Honour was in error in, without explanation, fixing the standard non-parole period as the sentence for the applicant's offence, without any reduction for the plea of guilty. Having expressed the intention of allowing a 20% discount for that plea, her Honour must have begun with a sentence higher than the standard non-parole period, even though she assessed the offence as being of mid-range gravity, and gave no explanation for so doing. Alternatively, when she came to the determination of the sentence, she simply overlooked and omitted to implement her intention of reducing the sentence by 20%. In my opinion, the applicant has demonstrated that her Honour was in error in this respect. Ground 2: a mid-range offence? 26 The applicant challenges the judge's assessment of the offence as being towards the middle of the range of gravity of offences of its kind. In support of this ground, counsel for the applicant pointed out that "a serious indictable offence" is defined in s4 of the Crimes Act as one punishable by imprisonment for life or for a term of five years or more. The "serious indictable offence" that the applicant committed was larceny. That offence carries a maximum penalty of imprisonment for five years. The argument was that, since five years is at the very bottom of the range of sentences which brings an offence within s112(2), and since the subsection is capable of encompassing much more serious offences, such as sexual assault, or any of a variety of offences of violence, it is unrealistic to classify a s112(2) offence where the "serious indictable offence" is larceny, as in the middle of the range. 27 I do not accept the applicant's argument. The assessment of where the offence lies in the range of offences of its type is to be made by reference to all of the facts and circumstances of the offence, and to the range of offences of its kind which come before the court. One circumstance which is here of relevance in that assessment is the quantity and value of the property stolen. It is not to the point that the property was recovered. It was, in fact, stolen, before being recovered. The fact that the maximum penalty for stealing barely takes that offence into s112(2) does not of itself determine where the offence lies in the scale of gravity of offences against s112(2). Certainly, one might ordinarily expect that offences involving violence would be regarded as more serious than stealing. But that does not preclude a finding that an offence under s112(2), where the "serious indictable offence" is larceny, being classified as in the middle of the range. 28 A second argument on this ground concerned the circumstance of aggravation. That was that the offence was committed in company. 29 Circumstances of aggravation are defined in s105A, and include that the offender is in company; that he/she is armed with an offensive weapon or implement; that he/she uses corporal violence on any person; that he/she maliciously inflicts actual bodily harm on any person; that he/she deprives any person of his/her liberty; and that he/she knows that there is a person (or persons) in the place where the offence is committed. Again, in my opinion, the assessment of objective gravity must be made by reference to the particular facts of the case. There is no gradation of the circumstances of aggravation set out in s105A. In saying this, I would accept that, generally speaking, certain of the circumstances of aggravation specified would, as a matter of common sense, appear to be more serious than others. One would expect that being armed with an offensive weapon, for example, or the use of corporal violence, or deprivation of liberty, would ordinarily, be regarded as more serious than committing an offence in company. But all depends upon the particular circumstances of the individual case. 30 It was suggested in written submissions that, as more than one circumstance of aggravation might be present in a single offence, the fact that only one, that the offence was committed in company, here existed, reduced the relative gravity of the offence on the notional scale envisaged by s54A. Again, it is only common sense that, generally speaking, the more circumstances of aggravation are present, the more serious will be the offence. But it does not necessarily follow that it is wrong to place an offence with only one such circumstance in the mid-range category. 31 In my opinion, it was open to Judge English to assess the gravity of the applicant's offence as she did. In this respect also the damage to the property, and the value of the property stolen were relevant. I would reject this ground of the application. Ground 3: special circumstances 32 Counsel for the applicant contended that the passage extracted above (at [14]) should be interpreted as a finding that, pursuant to s44(2) of the Sentencing Procedure Act, special circumstances existed justifying departure from the ratio between the non-parole period and the balance of term there specified. Counsel who appeared for the Crown accepted that, although that finding was not made explicitly, this was the correct interpretation of the passage. 33 Counsel for the applicant then argued that the finding had not been carried into effect. 34 A literal application of s44, together with the application of the standard non-parole period for this offence, and absent a finding of special circumstances, would result in the imposition of a non-parole period of five years with a balance of term of twenty months, giving a total sentence of six years and eight months. The sentence imposed by Judge English well exceeded that. If her Honour had intended to impose a head sentence of, say, six years and eight months, together with the standard non-parole period of five years, then she failed to give effect to her finding of special circumstances. The purpose of a finding of special circumstances remains to enable the court to reduce the non-parole period and extend the period of release on parole. S44(2) was not intended to permit a court to extend a total sentence beyond that properly applicable in respect of the offence. 35 It seems to me that her Honour has misunderstood the purpose and effect of a finding of special circumstances. That is, perhaps, best explicated in R v Moffitt (1990) 20 NSWLR 114, in which this court considered the proper interpretation and application of s5 of the Sentencing Act 1989 which established a sentencing regime essentially the same as that established by the current s44. All members of the court there proceeded on the basis that the capacity to depart from the sentencing ratio provided in the section was enacted for rehabilitative purposes, but not with an eye to increasing the head sentence; but rather to reduce the non-parole period. For example, Samuels JA said: "If follows that 'special circumstances' must mean those circumstances which justify enlarging in the prisoner's favour the existing rehabilitative purpose of s5." (emphasis added) 36 Wood J (as the Chief Judge then was) drew a distinction between s5 and s20A of the (repealed) Probation and Parole (Serious Offences) Amendment Act 1987, the purpose of the latter of which was, his Honour said, "punitive, that is, to ensure a longer period was spent in custody for serious crime". He held that, where special circumstances existed dictating the imposition of a reduced minimum term followed by a longer additional term, so as to permit a longer period of eligibility for parole than the statutory norm, then that could be achieved by an exercise of the discretion under s5(2), the equivalent of the discretion under s44(2). 37 Badgery-Parker J, who wrote the principal judgment, took as his starting point that the function of the parole system is to facilitate the re-establishment of an offender as a responsible law-abiding member of the community, by affording him guidance and supervision after his release into the community and at the same time protecting the community from further offences. That being the case, his Honour considered that it would often be appropriate that he should be under supervision for a period longer than could be achieved by the specification of an additional term limited to one third of the minimum term. His Honour considered whether the section envisaged maintaining the minimum term, but extending the additional term. (That is what, I consider, happened in the present case.) 38 Badgery-Parker J rejected that interpretation, saying that it "may have an unintended punitive consequence". That was because release on parole is not automatic and an offender may be retained in prison beyond the expiration of the non-parole period, indeed even for the whole of the additional term with the result that an offender might be incarcerated for considerably longer than the sentencing judge contemplated or intended. 39 At least since the enactment of the Sentencing Act 1989, the statute governing sentencing has contained a provision, in one form or another, specifying that the non-parole period is, absent special circumstances, to be no less than three quarters of the total sentence. Each version of the provision has presumed the capacity of a sentencing judge, where he or she found special circumstances justifying a departure from that ratio, to specify a non-parole period that is less than that proportion of the total sentence. At least since the decision in Moffitt, it has been clear that this was intended to benefit the offender, by the reduction of the non-parole period and an enlargement of the period during which the offender would be eligible to release on parole. It has never been the case that the provision, whatever its form, permitted an extension of the head sentence which would otherwise be properly applicable. 40 Yet that, I think, is what has happened here. Error has accordingly been demonstrated. 41 In my opinion, the correct approach was (absent the plea of guilty) to begin with the standard non-parole period, to consider whether there were reasons for departing from that sentence; if the judge decided there were no such reasons, to begin with a standard non-parole period of five years, together with a balance of term of not more than one-third of the 60 months represented by the standard non-parole period; and then, pursuant to s44(2), to consider how the finding of special circumstances was to be implemented. This would result in an appropriate reduction in the five year non-parole period, not an extension of the balance of term. 42 In a sense, this is theoretical. The plea of guilty meant that, strictly, the standard non-parole period was inapplicable: see Way [68] – [70]. Nevertheless, the standard non-parole period operates as "a reference point, or benchmark, or sounding board, or guidepost": (Way, [122]) 43 In my opinion, error has here also been demonstrated. Ground 4: manifestly excessive 44 The final submission was that the sentence was, in all the circumstances, manifestly excessive. No additional argument was addressed to support this ground. Rather, counsel relied upon the submissions already put in relation to the specifically pleaded grounds. 45 In my opinion, this argument also has been made good. Once the finding was made, and is accepted in this court, that the offence was a mid-range offence of its type, the question for the sentencing judge was whether, notwithstanding that assessment, any longer or shorter non-parole period should have been imposed. (I appreciate that this leaves out of present consideration the impact of the plea of guilty, to which I will return.) As I have indicated, a standard non-parole period of five years would ordinarily be associated with a balance of term of one year and eight months. The applicant's balance of term is very nearly double that. In my opinion a head sentence of eight years has been shown to have been manifestly excessive. 46 Accordingly, I am of the view that the applicant has made good his application. The sentence should be set aside and the applicant re-sentenced. He is entitled, at least, to the deduction of 20% which her Honour intended to give him in relation to the plea of guilty. He is also entitled to a reduction in the non-parole period as a result of the finding of special circumstances. 47 I do not think, having regard to the assessment of the offence as a mid-range offence, together with the objective circumstances of the offence, the applicant's criminal history, and notwithstanding the moderately favourable subjective case made out on his behalf, that a starting point of a non-parole period of five years is manifestly excessive. No reasons other than the plea of guilty have been identified for a reduction in the standard non-parole period. It provides a benchmark or reference point. It should be reduced by 20% for the utilitarian value of the plea of guilty, giving a non-parole period of four years and a balance of term of sixteen months, a total sentence of five years and four months. To give effect to the finding of special circumstances, the non-parole period should be reduced by nine months to give a non-parole period of three years and three months with a balance of term of two years and one month. The sentence should commence on 2 April 2004. The non-parole period would expire on 1 July 2007 and the total sentence on 1 August 2009. 48 I propose the following orders: (i) leave to appeal granted; (ii) appeal allowed, sentence imposed in the District Court quashed; (iii) in lieu thereof the applicant be sentenced to a non-parole period of three years and three months commencing on 2 April 2004 and expiring on 1 July 2007, and a balance of term of two years and one month, expiring on 1 August 2009. 49 BARR J: I agree with Simpson J. 50 LATHAM J: I agree with Simpson J. ********** 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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