New South Wales Court of Criminal Appeal CITATION: Huynh v R [2006] NSWCCA 224 HEARING DATE(S): 24 March 2006 JUDGMENT DATE: 28 July 2006 JUDGMENT OF: Hidden J at 1; Kirby J at 23; Hislop J at 24 DECISION: Leave to appeal granted, appeal dismissed. CATCHWORDS: CRIMINAL LAW: Application for leave to appeal against sentence - parity of sentence - aggravating features - accumulation of sentence - special circumstances LEGISLATION CITED: s21A(2) Crimes (Sentencing Procedure) Act 1999 R v Kelly [2005] NSWCCA 280 CASES CITED: Veen v The Queen (No 2) (1998) 164 CLR 465 R v Hathaway [2005] NSWCCA 368 PARTIES: Han Hoai HUYNH REGINA FILE NUMBER(S): CCA 2005/2016 COUNSEL: Applicant: D Carroll Crown: J Dwyer SOLICITORS: Applicant: S O'Connor Respondent: S Kavanagh LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/21/3025 LOWER COURT JUDICIAL OFFICER: Hock DCJ LOWER COURT DATE OF DECISION: 10 September 2004 IN THE COURT OF CRIMINAL APPEAL 2005/2016 HIDDEN J KIRBY J HISLOP J Friday 28 July 2006 Han Hoai HUYNH v REGINA Judgment 1 HIDDEN J: After a trial in the District Court the applicant, Han Hoai Huynh, was found guilty of robbery whilst armed with a dangerous weapon, an offence under s97(2) of the Crimes Act which carries a maximum sentence of imprisonment of twenty-five years. He was sentenced to imprisonment for nine years, with a non-parole period of five and a half years, to commence on 25 March 2005. That sentence was partly accumulated upon a sentence which he was then serving, and to which it will be necessary later to refer. He seeks leave to appeal against the sentence. He had been tried jointly with a co-offender, Tu Anh Pham, who was also found guilty and sentenced to the same term of imprisonment as the applicant. Facts 2 Dealing jointly with the applicant and Pham, the learned sentencing judge summarised the facts as follows: The facts in respect of the offence are that on 23 March 2002 these two offenders and two other offenders, TC, a juvenile and Thi Dinh Nguyen, met at a flat at Kingslea Place, Canley Heights. They decided they needed to get some money and made an arrangement to go to the Phuc Thinh Asian Grocery Store at St John's Road Cabramatta to rob it. Huynh drove the other three offenders in his car, a maroon Hyundai Lantra. When the offenders arrived at the shop, the car was parked in a rear lane behind St John's Road. Pham and the two other young men left the car and went into the shop. Inside were the shopkeeper, Mr Doan, his daughter aged twenty, his son aged eleven and some customers. Pham was armed with a loaded Beretta pistol which had been taken from the flat and he was the last offender to enter. He pointed the pistol at Mr Doan and discharged one bullet into the ceiling. Mr Doan told his children to run and he also ran out of the shop. One offender took money and TC took some cigarettes from the counter. The entire episode was captured on the surveillance video machine located at the rear of the store. The offenders ran out of the shop and entered the car which was still waiting in the rear lane. They were driven away by Huynh. As they left the lane Mr James Lynch, an eye witness, took note of the registration number of the car and made observations of the occupants. The offenders returned to the flat at Kinslea Place and divided the money which in total was approximately $300. On 25 March 2002 police executed a search warrant at the flat at Kingslea Place. The Beretta pistol was located in a shoebox on top of the wardrobe, Huynh's finger prints were on the box. The box also contained a magazine with seven bullets loaded into it. There was other ammunition not suitable for firing in the Beretta pistol in the shoebox. On the same day Huynh was arrested driving the Hyundai Lantra. Pham was arrested in April 2002. 3 The co-offender, Thi Dinh Nguyen was sentenced by another judge after pleading guilty to a charge of robbery in company. It will be necessary to refer later to that sentence also. The juvenile, TC was granted immunity from prosecution and was an important Crown witness at the trial. Subjective Case 4 The applicant was nineteen years old at the time of the offence and twenty-one at the time of sentence, and is now twenty-three. He was born in Vietnam, and had a somewhat disturbed family background because his father died when he himself was an infant and his mother came to Australia, where she remarried. He was brought up by his grandparents until the age of twelve, when he joined his mother in this country. He did not speak English at that time, and her Honour found that he must have endured "a difficult adjustment period." He attended high school until the age of fourteen and has little employment history. He was using heroin at the time of the offence. His mother remained supportive of him. Her Honour was guarded about his prospects of rehabilitation in the light of his criminal history but, nonetheless, assessed them as reasonable. 5 His criminal record includes a number of entries in the Children's Court and the Local Court for supplying prohibited drugs and a variety of other offences to which it is not necessary to refer. Significantly, however, in 2004 he was sentenced by Newman J in respect of a charge of manslaughter, to which he had pleaded guilty, to imprisonment for seven and a half years, with a non-parole period of four years, commencing on 25 March 2002. It was upon that sentence that her Honour partly accumulated the sentence in the present case, directing it to commence three years later, that is, on 25 March 2005. As will be seen, the circumstances of that manslaughter bear upon the present application. The application 6 Five grounds of appeal were notified in the application for leave. The fourth was abandoned prior to the hearing. The first complains that the applicant has a justifiable sense of grievance in the light of the sentences imposed upon the co-offenders, Pham and Nguyen. The second asserts that her Honour erred in taking certain matters into account as aggravating factors under s21A(2) of the Crimes (Sentencing Procedure) Act. The third complains that the non-parole period specified by her Honour, in the light of the accumulation of the sentence upon the sentence passed by Newman J, results in an effective period of parole eligibility which is inadequate. The fifth notified ground is that the sentence is manifestly excessive. This is said to be the result of the errors identified in the other three grounds relied upon. Sentence of co-offenders 7 As I have said, Pham was sentenced to the same term of imprisonment as the applicant. Mr Carroll argued that the applicant was entitled to be dealt with more leniently than Pham because he played a lesser role in the offence. As will be seen, Nguyen was dealt with much more leniently than the applicant and Mr Carroll also complained of that disparity. 8 The principle of what is loosely termed parity of sentence is the subject of a familiar line of authority. It establishes that there must be an appropriate relativity between sentences passed upon co-offenders, having regard to the features of the case that are common to them and to those which distinguish them. A lack of appropriate relativity enlivens the discretion of an appellate court to intervene. It is sufficient to refer to the recent re-statement of the principle by Johnson J in R v Kelly [2005] NSWCCA 280 at [11]: The elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community – the issue is whether the particular sense of grievance or injustice is a legitimate one: Lowe v The Queen (1984) 154 CLR 606 at 611 per Mason J. The test for determining the legitimacy of a sense of grievance is objective not subjective. What has to be demonstrated by the person complaining on the grounds of parity is not that he feels aggrieved, but that a reasonable mind looking overall at what has happened would see that the offender's grievance is justified: R v Doggett (Court of Criminal Appeal, 24 March 1996, unreported) per Sully J; R v Ilbay [2000] NSWCCA 251 at [6]. 9 Let me deal firstly with the sentence imposed upon Pham. It is common ground that, apart from the matter giving rise to the applicant's conviction of manslaughter, the backgrounds and criminal antecedents of the two men are not significantly different. Pham's sentence was partly accumulated upon a sentence, passed at the same time by her Honour, for a robbery which he committed alone in March 2001. As to the offence in question, however, Mr Carroll relied upon the fact that Pham had entered the shop, carrying the gun, and had fired it, whereas the applicant had remained outside as the driver. 10 It is in this context that the manslaughter matter becomes of significance. It arose from what her Honour described as "a bungled robbery" which took place only three days before the robbery with which we are concerned. The applicant was involved in that robbery with three other men and, again, he was the driver. In the course of that robbery the victim was fatally stabbed by one of the co-offenders. Another co-offender shot out the tyres of the victim's van with the same gun that was used in the present robbery. Her Honour observed that "the horror of those events did not dissuade this offender from taking part in the armed robbery of Mr Doan's grocery store only three days later." 11 In assessing the culpability of the applicant and Pham in the present robbery for the purpose of determining whether there should be any differentiation of their sentences, her Honour expressed her conclusion as follows: The Crown case was based on joint criminal enterprise to rob the shop. The roles these two offenders played in this robbery were very different but in my view their liability is the same. Although it was suggested by counsel for Huynh that he was less culpable than Pham as he was the "getaway driver", in the light of the events three days previously such an argument does not withstand scrutiny. I have come to the conclusion that both offenders should receive the same sentence. 12 Mr Carroll submitted that, in determining the objective gravity in the applicant's role in the instant offence, it was not appropriate for her Honour to have regard to his involvement in the tragic robbery three days earlier. In assessing the objective gravity of a crime, it has not been considered legitimate to look to other criminal activity of the offender, even though it might have been recent and of a similar character. However, I understand her Honour's observations to have been directed to the fact that the applicant was prepared to be involved in the armed robbery of Mr Doan's shop even though he must have been aware from very recent experience that an armed robbery can have dire, albeit unplanned, consequences. In my view, it was open to her Honour to see this as bearing upon his culpability for the offence. 13 However that may be, his involvement in the earlier robbery and the fact that its tragic outcome did not dissuade him from participating in the armed robbery of Mr Doan's shop heightened the need for the sentence to reflect considerations of retribution, deterrence and the protection of society. The oft quoted passage from the joint judgment in Veen v The Queen (No 2) (1998) 164 CLR 465 at 477 is apposite: "The antecedent criminal history is relevant…to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." 14 It may be that this aspect of the application raises the question of sentencing principle flagged by McClellan CJ at CL in R v Hathaway [2005] NSWCCA 368 at [24]-[34]. I understand that that question has recently been argued before a five judge bench in McNaughton v R, in which judgment is still reserved. It is not necessary nor desirable to determine it in the present case. It is sufficient to say that, in all the circumstances, I am not persuaded that her Honour fell into error in passing the same sentence upon the applicant as that imposed upon Pham. 15 The other co-offender, Thi Dinh Nguyen had been sentenced by another judge before her Honour dealt with the applicant and Pham, and her Honour had regard to that sentence. Nguyen had pleaded guilty to robbery in company, an offence carrying the lesser maximum sentence of twenty years imprisonment, on the basis that he was unaware that Pham had a gun. He was sentenced to imprisonment for two years and three months with a non-parole period of fifteen months. 16 Her Honour noted that Nguyen had "a relatively minor" criminal record, although he had served short periods of imprisonment. She also noted that he had pleaded guilty at the first opportunity and, as I have said, to a lesser charge. The judge who sentenced him found that he was remorseful and that he had significant prospects of rehabilitation. To that must be added the fact that the applicant's sentence is partly concurrent with the manslaughter sentence. There is undoubtedly a marked difference between the applicant's sentence and the lenient term imposed upon Nguyen but, in the light of the features of the case which distinguish the two men, I am not persuaded that it is such as to call for this Court's intervention. Aggravating factors 17 Her Honour referred in her remarks to relevant aggravating factors under s21A(2) Crimes (Sentencing Procedure) Act. Among those, she said, was "the actual and threatened use of violence and of a weapon…" Mr Carroll argued that her Honour erred in treating those features as aggravating factors because they were elements of the offence, and s21A(2) prohibits a court from having regard to an element of the offence charged in aggravation. 18 This ground could succeed only if her Honour's phrase were subjected to an unrealistic word by word analysis. True it is that the threatened use of violence, if not the infliction of it, is an element of robbery. The presentation of a weapon is an element of armed robbery, and the expression "use" of a weapon could embrace the presentation of it. Clearly, however, by the phrase she used her Honour was referring compendiously to the firing of the gun by Pham. That act could be described as the use of the weapon, and as an act of actual violence carrying with it the threat of further violence. The firing of the gun, of course, was not an element of the offence. 19 It may be, with respect, that her Honour expressed herself a little loosely but, in my view, what she sought to convey is clear enough. This ground also is not made out. Non-Parole Period 20 Her Honour found special circumstances because of the applicant's youth and because the sentence she passed was to be partly accumulated upon the sentence he was serving for manslaughter. Mr Carroll accepted that the non-parole period of five and a half years was an appropriate proportion of the sentence of nine years, viewed in isolation. He argued, however, that the benefit of an extended period of parole eligibility was lost by the partial accumulation. As I have said, her Honour directed the sentence on the armed robbery to commence three years after the commencement of the manslaughter sentence, which was a term of seven and a half years with a non-parole period of four years. The effect was a total term of twelve years with a non-parole period of eight and a half years. 21 The result, as Mr Carroll pointed out, is an effective non-parole period which is seventy one percent of the total sentence, a proportion close to the statutory norm of seventy five percent. However, that is no doubt what her Honour intended, applying the principle of totality. Again, I can see no error in her approach. A lengthy non-parole period was necessary to mark the applicant's criminality, but the structure of the sentences affords him the opportunity to serve three and a half years of the total term in the community on parole: on any view, a substantial period. Conclusion 22 The sentence passed upon this young man was severe but this Court should not interfere with it, as it cannot be said that her Honour's discretion miscarried. I would grant leave to appeal but dismiss the appeal. 23 KIRBY J: I agree with Hidden J. 24 HISLOP J: I agree with Hidden 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. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.