R v Hoang

CITATION : R v Hoang [2003] NSWCCA 380 HEARING DATE(S) : Wednesday 3 December 2003 JUDGMENT DATE : 3 December 2003

JUDGMENT OF : Wood CJ at CL at 1, 67; Smart AJ at 66 DECISION : 1. Grant leave to appeal; 2. Head sentence in relation to each count confirmed but non-parole periods quashed. In lieu thereof, specify non parole periods as follows; (a) Count 1: five years and four months to commence on 3 April 2002 and to expire on 2 August 2007; (b) Count 2: five years to commence on 3 April 2002 and expire on 2 April 2007; (c) Count 3: nine years and three months to commence on 3 April 2002 and to expire on 2 July 2011; 3. Specify 2 July 2011 as the earliest date on which the applicant would be eligible for release on parole.

CATCHWORDS : CRIMINAL LAW - application for leave to appeal against severity of sentence - aggravated break and enter in company - detain for advantage and cause injury to victim - aggravated sexual assault in company with deprivation of liberty - whether sentencing judge took account of applicant's youth and prospects for rehabilitation as constituting special circumstances - whether sentences manifestly excessive. LEGISLATION CITED : Crimes Act 1900 - s 61JA(1) , 90A, 112(2) Criminal Appeal Act 1912- s 6(3) Pearce v The Queen (1998) 194 CLR 610 R v AEM [2002] NSWCCA 58 R v Bus NSWCCA 3 November 1995 R v Fong [2002] NSWCCA 320 R v GDP (1991) 53 A Crim R 112 R v Hearne [2001] NSWCCA 37 CASES CITED : R v Holmes and Ratu [2003] NSWCCA 28 R v Li NSWCCA 9 July 1997 R v Pham and Ly (1991) 55 A Crim R 128 R v Simpson (2001) 53 NSWLR 704 R v Tran [1999] NSWCCA 109 R v Voss [2003] NSWCCA 182 R v Weldon and Carberry [2002] NSWCCA 475 PARTIES : Regina Dinh Ba Hoang FILE NUMBER(S) : CCA 60365/03 COUNSEL : D Arnott (Crown) A Bellanto QC SOLICITORS : C. K. Smith (Crown) S. E. O'Connor

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0811 FILE NUMBER(S) : LOWER COURT Mahoney ADCJ JUDICIAL OFFICER :

• 8 - IN THE COURT OF CRIMINAL APPEAL 60365/03

WOOD CJ at CL SMART AJ

WEDNESDAY 3 DECEMBER 2003 REGINA v DINH BA HOANG Judgment 1 WOOD CJ at CL: The applicant seeks leave to appeal against the severity of the sentences which were imposed upon him by Mahoney ADCJ on 6 February 2003. These sentences, which resulted in an effective overall sentencing order of imprisonment for fifteen years, with a non-parole period of eleven years and three months, related to a night of extreme violence, involving what amounted to a home invasion followed by an armed robbery, the kidnap of one victim and the kidnap and sexual assault of the other victim. 2 The sentences which were imposed following pleas of guilty, that were accepted as having been made at the first available opportunity, were as follows:

Count 1: Break and enter dwelling and commit a serious indictable offence (armed robbery) in circumstances of aggravation (in company) - maximum available penalty imprisonment for twenty years (s 112(2) Crimes Act 1900 ) -imprisonment for eight years with a non-parole period of six years.

Count 2: Kidnap Tony Nguyen with intent to hold him for advantage (obtain money) - maximum available penalty imprisonment for fourteen years (s 90A Crimes Act 1900 ) - imprisonment for seven and a half years with a non-parole period of five years and seven and a half months.

Count 3: Sexual intercourse with Vicki Dlask without her consent, in company, and prior to the commission of that offence depriving her of her liberty for a period - maximum available penalty life imprisonment (s 61JA(1) Crimes Act 1900 ) - imprisonment for fifteen years with a non-parole period of eleven years and three months. 3 The sentences were directed to be served concurrently. Special circumstances were not found, the respective non-parole periods in each case being set at seventy-five per cent of the head sentence. 4 One offence was taken into account on a Form I in relation to count 1, being an offence which had been committed a month earlier, and which had involved the applicant acting as an accessory after the fact to a break and enter of a dwelling house, and the commission therein of a robbery in company.

5 Tony Nguyen lived in a unit in the suburb of Russell Lea with his fiancee Vicki Dlask and a flatmate, Timothy Sung. They were young people, in their early twenties. 6 The unit in which they lived was situated on the third floor of the block. Entrance to the unit block could only be gained through the underground security car park or via a security door at the front of the block. 7 In the early hours of Saturday 3 November 2001, Timothy Sung was woken up by a hand around his throat. There were three people in his room with weapons. Two offenders, Kogi Elwood-White and Sydney Kim, wore balaclavas and the third, the applicant, wore a white bandanna covering the bottom half of his face. One carried a small knife, one carried a small machete with a curved blade (Kogi) and the other a pump-action shotgun (Kim). Sung was told not to struggle or to scream. His hands were tied behind his back and a piece of material was put in his mouth. 8 The offenders then walked into the room occupied by Tony Nguyen and his fiancee. Tony Nguyen was dragged by the back of the head into Timothy Sung's room where his hands were tied behind his back and a blanket put over him so that he could not see. A blanket was also wrapped Vicki Dlask and a pillowcase was placed over her head. She was pulled and pushed into Timothy Sung's room with the shotgun pointed at her head. Her hands were tied behind her back. 9 Tony Nguyen was then led to the bathroom where a demand was made for money, jewellery or watches. After he surrendered his wallet he was taken to his bedroom, instructed to dress and advised that if he turned around and looked at the man with him or made any noise, then he would be killed. 10 Vicki Dlask said that a number of items belonging to her were stolen from the unit, including jewellery, a mobile telephone and a Commonwealth Bank keycard. These events gave rise to count 1. 11 Tony Nguyen was led by the applicant to a waiting car. He was seated in the back of the car and the driver was told by the man who had led him out of the house, "If he says anything or looks at you, cut him." 12 Vicki Dlask was led by Kogi out of the house. As she left, Timothy Sung heard a man tell her, "We have your boyfriend. We have a gun to his head." At this time Timothy Sung felt a foot against his neck and a metal object against his head. He was instructed, "Don't do anything. Don't scream. Don't move. I will back." Vicki Dlask was ordered to climb in the boot of the vehicle to which she was taken. It was then closed on top of her. 13 The vehicle drove off and travelled for about forty minutes to its destination. Vicki Dlask was carried from the boot into a house and placed on a bed in one of the rooms. Her hands were untied from behind her back and then retied on the top of the bedhead. Earplugs were inserted in her ears and she was ordered not to scream or move for her "boyfriend's safety". Some time later the pillowcase over her head was removed, sticky tape was placed over her eyes and mouth and the pillowcase replaced. 14 Her T-shirt and shorts were then cut and ripped from her by Kogi. One leg was tied to the rail on the side of the bed and the other held. She protested but she felt her throat being grabbed. She felt her nipple being licked, fingers inserted inside her vagina and then a penis. She felt warm semen drop onto her stomach. The appellant then had penile/vaginal sex with her and again she felt warm semen drop on her side. 15 She was left lying naked for fifteen minutes before she was given a T-shirt and boxer shorts. Her earplugs were removed and she was permitted to go to the toilet and told to clean up. She was carried to the toilet over the applicant's shoulder. She used the toilet in the presence of this man. She was then taken to the bed and re-tied. 16 These events gave rise to count 3. 17 In the meantime, with the scraping of what had felt like a knife near his ear, Tony Nguyen had been taken out of the car and blindfolded with a balaclava. He was taken into the room to which Vicki Dlask had been taken and forced to lie under a bed with his arms tied. He was then tied to the frame of the bed and ordered, under the threat of harm, to reveal the pin number of his and his girlfriend's bank accounts. Tape was wrapped around his eyes and he was led into another room. The sum of $2500 was demanded from him with the threat of seeing his girlfriend die and being killed himself. He was asked whether he "would rather be shot in the stomach or have his hand chopped off." He heard his girlfriend crying and screaming in the distance. 18 Tony Nguyen promised to obtain the $2500 provided his girlfriend was not hurt. He was told that, in fact, something had already happened to her. He was taken back to the original room and forced to lie again under the bed. He could hear his girlfriend crying on the bed above him. 19 These events gave arise to count 2. 20 Both he and Miss Dlask were taken back to the car. Miss Dlask was again put in the boot. They were both driven to a location in Punchbowl where they were pushed out of the car and left. Both were still tied up but managed to free themselves and called the police. The ordeal extended over about two to three hours. 21 Police investigating the matter found the unit where they lived to have been ransacked. Timothy Sung was seen to have red marks around his wrists together with the laceration near one of his wrists. 22 The applicant was arrested on 3 April 2002. Sydney Kim was the first to be spoken to by police and he nominated the applicant as a co-offender. When the applicant was arrested and interviewed by police at Burwood Police Station he admitted his involvement. In the course of his interview the applicant told police he had known Sydney Kim for six years, from schooldays. Kogi was known to him by reputation as a "big timer with gangs". He said that Sydney Kim had informed him that Tony owed Kogi money and they knew Tony had money because he had been doing some credit card rorts. 23 The matter on a Form I involved an offence committed at a house in Campsie, which was occupied by a number of Chinese people, who rented rooms on a weekly basis. On the night of 1 October 2001, two armed men wearing balaclavas entered those premises and confronted a family and friends who were having dinner. The occupants were forced to surrender their mobile phones and wallets, and one victim was forced to disclose the pin number to his credit card. One of the women, who was pushed on to a bed, had her clothing cut and a necklace and bracelet stolen. 24 The two armed men were Kogi and Sydney Kim. The applicant, who had driven the getaway car, was arrested and charged with this offence on 12 February 2002. 25 It is the case that the co-offender, Kim, who pleaded guilty to that offence, was sentenced to imprisonment for twelve years with a non-parole period of eight years. That circumstance indicates that the matter was regarding by the sentencing judge as having been particularly serious. 26 Although the applicant's involvement was as an accessory after the fact as a driver, nevertheless he knowingly lent himself to what was a particularly serious offence.

SUBJECTIVE CIRCUMSTANCES 27 The applicant was aged eighteen at the time of the offence and nineteen and a half at the time of sentence. He had no prior convictions. 28 He was the eldest of four children to parents of Vietnamese origin and had arrived in Australia when he was aged two years. He was unmarried. He completed the Higher School Certificate and worked at a Tandy Electronics store. He had taken up employment at an early age due to his father's illness. He came from what appears to have been be a stable and happy home. He did not give evidence but various reports were placed before the Court which recounted his thought processes and attitude to the offences. 29 He claimed, in a history given to a psychiatrist, Dr Nielssen, that he had begun to use drugs (amphetamines) two months before the offence, and had in fact used drugs about one hour prior to arriving at the premises of the victims. He also claimed, in a history given to a clinical psychologist, John Machlin, that he had joined a group of friends who were involved in drug use and offending and who referred to one another as "brother". This "brotherhood", he said, had certain expectations of loyalty. 30 I his report, Mr Machlin, identified the five circumstances which he considered had contributed to the applicant's involvement in this episode of serious criminality. None of those operate, to my mind, as a mitigating circumstance, although they perhaps tend to explain why it was that a person of otherwise good character chose to lend himself to delinquent behaviour, and to become involved in what was a particularly serious offence. 31 The applicant said to the psychologist that since the offences he had been particularly depressed, with thoughts of suicide. He also said that he had not been gratified by the sexual assault and had felt "a bit sick" immediately after it. He claimed to have felt "blank" after the offences and wanted to pretend they had never happened. He also said that he knew he would eventually be caught, that he had attended confession at church where he made a full disclosure and had been advised to accept whatever punishment was coming. 32 Evidence was given by Father Knight, a parish priest from Waterloo, who knew his family and who said that the applicant was contrite and that his behaviour had been out of character. 33 His Honour expressly took into account the fact that he had taken over the role as the "family breadwinner" due to his father's stroke, which had occurred in 1999, and the apology which his counsel had offered to the victims, on his behalf. He observed that "the rehabilitation prospects for this young man not only appear to be very promising but have gone a long way towards having been accomplished already." He accepted that he had demonstrated genuine remorse and contrition and took into account what he considered to have been an impressive testimonial from a work supervisor. 34 He also noted the circumstance that, while the applicant had provided some assistance in acknowledging his own criminality, he had refrained from providing other information, particularly that relating to his co-offenders, out of fear of repercussions for his family. That circumstance perhaps explains why it was that he took that stance, but it does not operate in mitigation of his objective criminality, nor does it stand in his favour as a special circumstance. The simple fact is that he did not provide that measure of assistance. He has not been punished additionally for it, but he is not entitled to any mitigation for it. 35 His Honour applied a discount of twenty-five per cent to the sentences which he would otherwise have imposed due to the early plea. 36 His Honour drew attention to the distinction between subjective features and special circumstances, noting that the two are not synonymous. He specifically considered, but declined to find that a number of factors qualified as special circumstances, including his youth and prospects for rehabilitation. 37 It is submitted by the applicant that the sentence was manifestly excessive, and that the learned sentencing judge also erred in declining to find special circumstances in not reducing the non-parole period. 38 Essentially, the same arguments were advanced, in relation to each ground, to the effect that, while recognising the considerable remorse and contrition, the youth of the offender and his favourable prospects of rehabilitation. His Honour did not give effect to these findings, or to the general principle that rehabilitation is the primary aim in sentencing young offenders, when setting the head sentences and the non-parole periods. 39 This case was one involving very great objective criminality on the part of all who were involved. The Courts have made it clear that offences of this kind, which involve the invasion of the victim's home, followed by robbery or acts of violence, cannot be countenanced by decent living members of the community. Inevitably, in such cases, condign sentences must be passed which convey a very strong message of general and personal deterrence: R v Li NSWCCA 9 July 1997. 40 The kidnap and sexual assault of the young victim was particularly serious, and similarly demanded a condign sentence. That offence, in my view, fell within the upper range of seriousness for such an offence, the seriousness of which is, itself, underlined by the fact that the maximum available penalty for it is imprisonment for life. In this instance, a young, defenceless victim was abducted and subject to an ordeal that could only be described as having been terrifying, as well as one involving her complete and utter humiliation and debasement. 41 The kidnap and ill-treatment of the other victim and the attempted extortion fair little better in terms of objective criminality. 42 This community will not, and it cannot, tolerate the activities of marauding young gangs of the kind to which this appellant attached himself, and it is time that he and his ilk understood that to be the case, at the penalty otherwise of facing lengthy terms of imprisonment. 43 In most instances the youth of an offender and the objective of rehabilitation are properly to be taken into account when assessing his or her objective criminality and then given a loading in favour of a degree of leniency that would not otherwise be available for an adult offender: R v GDP (1991) 53 A Crim R 112. That arises, for example, where the offending arises out of immaturity: R v Hearne [2001] NSWCCA 37, or where the offender has an impoverished or deprived background and shows positive signs for rehabilitation. 44 However, these considerations have very much less weight when the offender has behaved with extreme violence or has acted as an adult, as has occurred in this case: R v Tran [1999] NSWCCA 109 and R v AEM [2002] NSWCCA 58. 45 Additionally, the weight to be given to these considerations diminishes the closer the offender approaches the age of maturity: R v Bus NSWCCA 3 November 1995 and R v Voss [2003] NSWCCA 182. 46 The remarks of Lee CJ at CL in R v Pham and Ly (1991) 55 A Crim R 128 at 135 are apposite: "Whilst the early background of each respondent merits sympathy and understanding it can not be used to cloak or disguise the fact that the actions of the respondents and the other men involved can only properly be described as the actions of a gang of thugs and armed thugs at that, violently invading the home of the victims and rendering them helpless. It is true that Courts must refrain from sending your persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal courts function will cease to operation. In short, deterrence and retribution do not seek to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes. It is appropriate to refer to the decision of Queen v Williscroft [1995] VR 292 at 299 where the majority of the Full Court of Victoria expressed the view that notwithstanding the enlightened approach that is now made to sentencing compared to earlier days, the concept of punishment, i.e. coercive action, is fundamental to correctional treatment in our society."

47 In the present case the offences were those of an adult; they involved extreme violence or serious threats thereof; the applicant did not have a deprived background and he was close to the age of eighteen years. 48 Although the head sentences were towards the top of the range, I am not persuaded, having regard in particular to the objective seriousness of the offences and to the matters outlined, that they were outside a proper range of sentencing discretion. 49 The case was, in fact, one where the sentencing judge would have been well justified in imposing sentences that were partly cumulative upon one another, so as to give effect to the overall objective criminality involved in what were discrete acts of serious criminality involving more than one victim, in accordance with the principle noted in Pearce v The Queen (1998) 194 CLR 610; see also R v Weldon and Carberry [2002] NSWCCA 475. 50 Moreover, it was a case where there had to be an additional component of imprisonment in relation to the Form I offence, which was also particularly serious. 51 While the overall sentence is one of considerable length, and while it could possibly have been constructed differently, to reflect totality, I am not persuaded, particularly in the absence of a Crown appeal, that such circumstance calls for intervention or for any re-structuring of the sentence. In short, I am not persuaded that any less severe head sentences were called for. 52 In this regard, the Court has been informed this morning that, for reasons which are not apparent, Kim has not been charged with this offence, while the co-offender Kogi was sentenced by Greg Woods DCJ to sentences which were very differently constructed, but which resulted overall in a sentencing order of seventeen years' imprisonment with a non-parole period of twelve years and nine months. That appears to have been achieved by way of an accumulation of the individual sentences and also taking into account some further matters which were referred to the Court pursuant to s 51A. 53 Having regard to the practical outcome of the two sentencing proceedings, counsel for the applicant does not advance any argument based upon parity. That, in my view, is a proper concession. If it were necessary to reconstruct the individual sentences so as to make them approximately equivalent to those imposed in relation to Kim, then I am of the view that as a result of the need for accumulation, which would then arise, precisely the same overall sentencing order would be achieved. 54 In those circumstances, while it may well be that Pearce has not been strictly reflected, I am of the view that this is not a case where any other sentence than that imposed was required or should have been passed. 55 Accordingly, for those reasons there is no error which calls for appellate intervention, so far as the head sentences are concerned. 56 I am, however, persuaded that special circumstances should have been found, arising from the applicant's age and his demonstrated commitment to rehabilitation. 57 It is correct, as the learned sentencing judge failed, that favourable subjective features and special circumstances are not synonymous. As Sully J said in R v Simpson (2001) 53 NSWLR 704: "... it does not follow, in my opinion, that it is correct in principle to say that in any and every particular case the subject matters that have been factored correctly into the definition of a head sentence and a non-parole period can simply be regurgitated as 'special circumstances' so as to require a reduction in what would be, otherwise, a proper non-parole period. Relevant subjective factors and 'special circumstances' are not synonyms. They are discrete considerations."

58 Any other view is in fact likely to lead to a double discounting in relation to the non-parole period. 59 Quite separate considerations are involved in determining whether special circumstances exist. The most relevant consideration in this case concerns the desirability of providing for the opportunity of an extensive period of release on parole: R v Fong [2002] NSWCCA 320. In that regard, care does need to be exercised to ensure that the reduction in a non-parole period does not result in a period of potential release that is so lengthy as to be likely to achieve little in the way of supervised assistance. 60 In its later years, on the other hand, an extended period on parole, which includes a period where supervision has been withdrawn because it is no longer considered necessary, may still have a very real significance for a young offender. It can operate as a continuing and effective constraint, since the offender remains subject to the risk of revocation of parole and return to prison for the balance of parole, if he or she re-offends. 61 What is needed is a considered balance to ensure that the non-parole period remains proportionate to the objective and subjective criminality of the offender and also provides a real encouragement and opportunity for rehabilitation. 62 In this case, the length of the sentence, the youth of the applicant, the favourable prospects for his rehabilitation, and the fact that this was his first time in custody, were matters that should, in my view, have been found to constitute special circumstances. 63 The case is, accordingly, one where I have reached the conclusion that, in relation to the non-parole periods, sentences other than those imposed were warranted in law and should have been imposed: s 6(3) Criminal Appeal Act. 64 I consider that leave to appeal should be granted and the non-parole periods reduced in relation to each offence. In that regard, I would propose that a non parole period should be set in the order of two-thirds of the head sentences in relation to counts 1 and 2. A somewhat larger reduction of the non-parole period would be appropriate for count 3, by reason of the lengthy head sentence for that count. Again, so far as the possibility of release on parole is concerned, it is the ultimate overall effect of the sentencing order that is critical. 65 In this regard, I find that the present case falls on the other side of the line to that examined in R v Holmes and Ratu [2003] NSWCCA 28, where the discretionary nature of the judgment, involved in this aspect of sentencing, was emphasised, and there held to be such as to require the Court to refrain from intervention. 66 I would propose the following orders: 1. Grant leave to appeal. 2. Head sentence in relation to each count confirmed but non-parole periods quashed. In lieu thereof, specify non parole periods as follows: (a) Count 1: five years and four months to commence on 3 April 2002 and to expire on 2 August 2007. (b) Count 2: five years to commence on 3 April 2002 and expire on 2 April 2007. (c) Count 3: nine years and three months to commence on 3 April 2002 and to expire on 2 July 2011. 3. Specify 2 July 2011 as the earliest date on which the applicant would be eligible for release on parole. The consequence in practical terms is to reduce the non-parole period by two years.

67 SMART AJ: I agree. 68 WOOD CJ at CL: The order of the Court will be as I proposed.

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