Huynh v R

The nature of the offending

1. The facts of the offending were the subject of an agreed statement of facts at the proceedings on sentence which, the learned primary judge summarised in his reasons. My summary is derived from his Honour's reasons.
2. The offending occurred on 2nd September 2013. The victim, Mr Quach, was at home watching television in a family room at the rear of his premises. The only light in the premises was the glow from the television. At about 5 pm, the applicant and his co-offender, who has not been identified, were seen jumping a side fence to gain access to the property's backyard. A neighbour who saw this called "000" immediately. The security screen-door to the house was unlocked and the wooden back door was open. When Mr Quach heard noise coming from the backyard, he got up to close the back door. As he stood up, he saw the offenders opening, and entering, through the security door. The offenders were unknown to him.
3. The learned primary judge found, in my view, with respect, correctly, that as the offenders entered the premises they must have seen Mr Quach. From this they would have known the house was occupied. Upon entry the applicant commenced to ransack the bedrooms looking for valuable property. The co-offender dealt with Mr Quach by pinning him back to the sofa and holding a knife to his neck. Mr Quach remonstrated with him, and struggled, but the co-offender threatened, more than once, to kill him. Mr Quach attempted to yell for help and the co-offender applied pressure to his throat and smothered his cries with a pillow. Nonetheless, Mr Quach's cries for help were heard by a neighbour and a second "000" call was made.
4. The applicant gave evidence denying that he knew this was going on. Specifically, he denied hearing Mr Quach crying for help (AB p 90.5 - 92.5). He also denied knowing his co-offender was armed with a knife (AB p 122.50 - 123.10). This evidence was rejected by the primary judge.
5. Police responding to the emergency calls disturbed the offenders who took flight down the hallway towards the front door, but it was deadlocked.
6. As his Honour observed, the co-offender "with some presence of mind" pretended to be Mr Quach's son deflecting attention from himself to the applicant. This "ruse" was effective, not once, but twice. And the co-offender managed to evade the grasp of police twice, making good his escape.
7. Meanwhile, the first police on the scene attempted to arrest the applicant. Initially, he co-operated, but once kneeling on the ground he struggled with the officer who was attempting to get him to put his hands behind his back for handcuffing. He was able to stand up and push the officer in the chest. The police officer unsuccessfully attempted "a leg sweep and arm-bar" to subdue the applicant and bring him to the floor. The result was that both lost their footing. The applicant was able to violently pull away from the officer's grasp, causing him to fall and slide into a large ceramic statue injuring his leg. These events were the offending on the Form 1.
8. A second officer was able to wrestle the applicant to the ground and restrain him.

The applicant's subjective circumstances

1. The applicant was born on 2nd August 1985. He was aged 28 at the date of the offence and 29 when he was sentenced. He will soon be 30.
2. He had a difficult and unhappy upbringing as a result of his parents' separation when he was 5 years of age. He is the second of their four children. His mother formed a new relationship when the applicant was about 8 and he did not settle with his stepfather. At the age of 12 he commenced living with his father and stepmother, but resented his father's strictness. He was expelled from school and ran away from his father's home, living on the streets for a short period and then at a friend's house. A week after he ran away, his father was murdered. He heard of this from his mother. Understandably he was "shocked".
3. He did not return to school and from about the age of 13 he started abusing cannabis and then heroin to which he became addicted. Later in life he completed the equivalent of Year 10 in custody.
4. As the learned trial judge observed, untreated chronic depression, as diagnosed by Dr Stephen Allnutt in his report of 18th August 2014, dating from around the time of his father's death, and long-term heroin addiction underpin the applicant's "deplorable criminal history" (AB p 18).
5. His criminal record commences when he was 14 with a robbery offence followed with a charge of possessing a prohibited drug. Probation orders of 18 months duration were made in respect of each of those matters. At the same time, a control order of three months duration was imposed on him for a later offence of supplying a prohibited drug. This was the first in a series of control orders for various offences including crimes of physical violence, robbery in company and kidnapping. He was involved in that last mentioned offence when he was not yet 16.
6. As an adult, he has been imprisoned for the offence of accessory after the fact to a crime of armed robbery and for the offence of robbery in company. For the robbery offence he received a term of imprisonment of 6 years with a non-parole period of 2 years and 2 months. His parole expired on 26th March 2012.
7. There are also a number of driving, and drug-possession offences.
8. He has struggled with his addiction, although at times, he has been able to maintain abstinence for significant periods. This background is such that he has rarely held down a job. He worked at one stage in his aunt's business and at another in a fast food outlet. He has a daughter from a relationship he formed whilst he was still a teenager. At the time of his arrest he had formed a new relationship with a university student. She is hopeful that upon his release the applicant will be able to steer his life in the right direction.
9. He was well supported in court by family and friends. Eight testimonials were received into evidence.
10. As I have said, the applicant pleaded guilty at the first available opportunity.

The reasons of the primary judge

1. It is appropriate to focus upon the matters in issue on the appeal. Of them, his Honour said the following ( AB p 14 - 15): …..[ the applicant] said on his oath that he did not hear Mr [Quach] screaming. It may be accepted, given the way the agreed facts were drafted, that [the applicant] was unaware of the presence of any knife on or about the person of [of the co-offender]; and it may be accepted that there was no agreement before they entered the premises that [the applicant] would ransack the premises whilst [the co-offender] dealt with the homeowner ….. But it cannot have been unknown to this offender, whilst he was ransacking Mr [Quach's] house, that some form of violence was being inflicted upon the homeowner. I reject utterly the evidence of this offender that he did not hear Mr [Quach] screaming. I do so because it is quite clear that a neighbour outside the house was able to hear that man's screams for help. Moreover, … the police were swiftly at the premises and came into the house announcing their office. This offender, on his own evidence, said that he was able to hear the police announce their office. It is utterly unbelievable that he could hear the police announce their office and yet not hear the screams of the man who was the lawful occupier of the premises. I am satisfied beyond reasonable doubt that [the applicant] knew that some violence was being inflicted upon Mr [Quach] and took no step to pull his co-offender off. So, whilst there may not have been specific knowledge of the existence of a knife, whilst there may not have been an agreement to effect violence upon the householder before he entered the premises, [the applicant] acquiesced in the infliction of violence on the householder. It is also relevant to record the following passages (AB p 17): When the police conducted a more detailed search of the premises, they found a set of gloves and a baseball hat in the bedroom. The bedroom had been ransacked. In his evidence [the applicant] said that the gloves and the baseball hat were not his and I find that, together with his evidence about not hearing the homeowner screaming, to be a deliberate lie. There is no evidence at all that [the co-offender] had gone into that room. The only person of the offenders who had gone into that room was [the applicant]. I am satisfied beyond reasonable doubt that the gloves and the baseball hat were his. [The applicant] has been in custody since 2 September 2013. In terms of objective seriousness, I have come to the view that whilst this matter is not at mid-range, it is certainly not at the bottom of the range as was submitted by counsel for the offender. The acquiescence by [the applicant] (being himself in possession of a weapon, ie the baseball bat) in the violence inflicted upon the homeowner means it is slightly below a mid-range offence for an offence of this kind in terms of objective seriousness. [Emphasis added.] And: There is no victim impact statement. All that is said is that Mr [Quach] suffered from soreness to the neck. It is regrettable that (yet again) no comprehensive victim impact statement has been obtained from this victim of a serious home invasion crime. Whilst the physical injury to Mr [Quach] may be described in a perfunctory way in the agreed facts, it would no doubt be the case that Mr [Quach] suffered substantial psychological fear as a consequence of this home invasion in his own home. [Emphasis added.]
2. His Honour found that the offence was committed to fund the applicant's drug habit which was then costing him $300 to $400 per week, in excess of what he received by way of social security payments.
3. Since his arrest in 2013, in custody, he has received punishment once for possessing a drug and again for failing a prescribed urine test. His Honour found that the applicant had lied in his evidence (see [9] above) and he was not persuaded that the applicant's expressions of remorse were genuine. The learned primary judge accepted that the applicant "does have prospects of rehabilitation" (AB p 21), but he was not persuaded that a finding of special circumstances was warranted. He considered rehabilitation was more likely to occur in custody, and, given his record, whilst subject to his addiction he was "a threat to community safety". His Honour placed weight upon the considerations of specific and general deterrence.

Ground 1

1. Mr Lange, who appeared with Ms J Ghabrial for the applicant, argued that the finding of substantial psychological fear engaged s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999 (NSW), which permits a court to take into account as an aggravating factor the circumstance that the injury, emotional harm, loss or damage caused by the offence was substantial. It was said there was no evidence to support such a finding and reference was made to R v Youkhana [2004] NSWCCA 412 at [26] where Hidden J said a finding of substantial emotional harm required evidence that a victim had suffered "an emotional response significantly more deleterious than that which any ordinary person would have when subjected" to the offending.
2. Mr P Ingram SC, for the Crown, argued that the finding of substantial emotional fear made by the learned primary judge was not a finding of emotional harm that was substantial for the purpose of s 21A(1)(g). His Honour did not treat the matter as an aggravating circumstance. All his Honour was really saying, was, in the circumstances agreed, anyone in the position of Mr Quach would have been very afraid and in making such a finding, his Honour was doing no more than drawing permissibly on the general experience of life. From that it was open to conclude that Mr Quach would have been very afraid, or, to put it another way, suffered substantial emotional fear.

Decision

1. The Crown's submissions on this point should be accepted. Emotional harm in the context of s 21A(1)(g), qualified by the adjective substantial may be taken to be a reference to an appreciable psychological injury whether permanent or not. It refers to something more than the transient, or temporary, shock or fright that anyone would suffer who felt his or her safety was in peril, but which passes within a relatively short time leaving no lasting ill-effects. His Honour was entitled to make a finding of substantial emotional fear of a transient type leaving no lasting ill-effects from what was agreed about the nature of the offending, informed by the common understanding of life shared by all adults.
2. I would reject this ground of appeal.

Ground 2

1. Mr Lange argued that the finding that the applicant had armed himself with a baseball bat was a clear error of fact attracting the principles discussed in House v The King [1936] HCA 40; 55 CLR 499. There was no such evidence.
2. The Crown, of course, accepts that there is no evidence of the applicant having a baseball bat, but that this was no more than a slip. The error was not material or dispositive. It was made in the course of the learned primary judge's assessment of the objective seriousness of the offending, but his Honour's conclusion that this offence was slightly below mid-range, was well justified by the other facts found, especially the finding, which did not depend upon this matter, that the applicant had acquiesced in the violence to which Mr Quach was subjected (see AB p 14-5, and [24] above).

Decision

1. I am satisfied that the finding that the applicant was in possession of a weapon was a misapprehension of a material fact engaging the principles established by House v King. I acknowledge the force of the Crown's submissions that the finding of acquiescence in violence was otherwise very soundly based by reference to the passage I first set out at [24] above. However it cannot be gainsaid that possession of a weapon would be highly material to the question of the objective seriousness of the offending. Given that the error was made by his Honour at a critical point in his evaluation of that matter, it is not possible to conclude that it did not have some bearing upon the decision his Honour actually made.
2. Making every allowance, for the care and clarity with which his Honour's ex tempore decision was made and expressed, the applicant has made good Ground 2.

Is another sentence warranted in law?

1. As I have found material error, it is necessary for this court to re-exercise the sentencing discretion in order to answer the statutory test posed by s 6(3) Criminal Appeal Act 1912 (NSW): Kentwell v The Queen [2014] HCA 37; 252 CLR 601. I think it appropriate to approach the matter by reference to the otherwise unimpeachable findings made by the learned primary judge. These findings were not challenged. As I have concluded that the approach taken to the assessment of the objective seriousness of the offending was informed by error, assessing that matter on the basis of the other findings made by his Honour including the degree of planning involved, and the acquiescence of the applicant in the infliction of actual violence on the victim, lead me to conclude that the objective seriousness of this offending is somewhat below the mid-range.
2. Moreover, as the Crown submits, the applicant's subjective case is not very compelling: the offence was committed to fund his drug habit; his criminal history is against leniency; and he is not remorseful.
3. On the other hand, the learned primary judge found that the applicant had prospects of rehabilitation. In the past he has shown an ability to abstain from drug use for extended periods. From the evidence received on the hearing of the application for leave to appeal, it is apparent that the applicant is making good use of his time in custody and he has successfully completed the required safety induction training for the issue of a General Construction Induction Card through the completion of applicable TAFE courses. The expressions of support from family and friends were quite impressive in nature. If the applicant can continue to avail himself of the opportunity in custody to undertake further training and rehabilitation, his prospects of rehabilitation will be somewhat better than the primary judge assessed.
4. In a pre-sentence report received in evidence at first instance the risk of re-offending was rated as "medium/high". This doubtless relates to the symbiotic relationship between his drug habit and his offending. Continued support from his family and full participation in the programs available to him in custody may improve this poor prognosis.
5. Mr Lange tendered statistics produced by the Judicial Commission of New South Wales for penalties imposed in the higher courts for this offence of aggravated break and enter with intent to commit a serious indictable offence under s 113(2). It is, of course, important to bear in mind that the statistics show a range of sentences actually imposed in the past, not the correctness of that range, nor its applicability to a given case: Wong v The Queen [2001] HCA 64; 207 CLR 584 at [59]; Hili v The Queen [2010] HCA 45; 242 CLR 520 at [54] - [55]. In the present case, it is difficult to derive particular assistance from them given the other offending on the Form 1 to be taken into account. Dealing with those matters on the Form 1 gives the applicant the opportunity to leave custody with a clean slate. However, it is a feature of the Form 1 procedure that a heavier sentence than may have been called for otherwise is justified in respect of the principal offence.
6. In crimes of this type, as well as general and specific deterrence, the sentence imposed needs to incorporate the important factors of condemnation and denunciation.
7. Bearing all of these relevant facts, matters and circumstances in mind, it goes without saying that no other sentence than a term of imprisonment would be justified. Allowing a 25 per cent discount for the utilitarian value of the applicant's early plea of guilty, I am of the view that the term of imprisonment should be one of 4 years. Like the primary judge, I am not satisfied that the evidence justifies a finding of special circumstances, so that the statutory ratio between the non-parole period and the additional term may not be disturbed. Accordingly, I fix a period of 3 years as the non-parole period justice requires the applicant to spend in full time custody before becoming eligible for consideration for release on parole.
8. My orders are: 1. Grant leave to appeal. 2. Appeal allowed. 3. Quash the sentence passed in the District Court on 16th September 2014 and instead sentence the applicant to a term of imprisonment having a non-parole period of 3 years commencing on 2nd September 2013 and expiring on 1st September 2016, with an additional term of one year commencing on 2nd September 2016 and expiring on 1st September 2017. The applicant will become eligible for release on parole upon the expiration of the non-parole period on 1st September 2016.

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. Decision last updated: 15 July 2015