R v Huynh [2004] VSCA 156

Numerous previous convictions - Lengthy history of alcohol abuse.

2. I will invite Nettle, J.A. to give the first judgment in this appeal.

6. The appellant, Louis Huynh, was born in Tonga on 12 August 1982 and was adopted by his father's parents. He did not meet his father until he was 12 years old and by that time his father had married another woman. He came to this country with his father and stepmother when he was 14 years old, but he did not stay with them for long. He moved out of their home after about twelve months and he began to live on the streets. He was, however, granted Youth Allowance and with the aid of that income he was enabled to finish his secondary education at the Sunshine Secondary College. He completed Year 12 at that school in 2001.

9. According to a report of Mr Ian Joblin, forensic psychologist, of 15 September 2003, the appellant has a significant problem with alcohol. He began drinking at around the age of 12 or 13 in response to social difficulties that he was facing at the time. Regrettably, he was the target of racial abuse at the school which he was attending in Laverton. He also found his father to be overly strict, and he experienced serious family problems after his mother walked out and went to live in Sydney. He got into company with a group of people from the Pacific Islands and he started to drink with them. He has since spent a considerable part of his relatively short life drinking to excess.

12. It is said that the appellant has a low threshold to tolerance when he is drinking. That means, apparently, that after drinking relatively modest amounts of alcohol he becomes easily provoked and interprets gestures such as smiles and grimaces as abuse, and he reacts with aggression. He is not without intelligence, however. According to Mr Joblin, the appellant presented well and was polite and co-operative, and certainly not psychotic, and, as has already been noticed, he completed Year 12 at school. But he has been unable, or unwilling, to curb his drinking or his propensity for violence.

15. He was first convicted, at the age of 13 years, of causing injury intentionally or recklessly and released on an undertaking for a period of six months. Eighteen months later he was convicted of causing injury intentionally or recklessly and damaging property with intent and sentenced without conviction and released on a good behaviour bond for a period of 12 months. On 12 February 1999 he was convicted of damaging property with intent and theft and related offences, and he was released on probation for a period of six months and fined $200. A year later, on 12 March 1999, he was convicted of theft and sentenced to be released on probation for a period of six months. Five months after that he was convicted, on 8 October 1999, of two charges of causing injury intentionally, causing injury recklessly, attempted robbery and robbery, and he was sentenced on that occasion to a term of detention in a youth training centre for a total period of 18 months, which was later reduced on appeal to the County Court to a period of 12 months. A week later, he was convicted on 14 October 1999 of two charges of causing injury recklessly, unlawful assault and theft, and was sentenced to a term of youth detention in a youth training centre for a period of three months on each charge. Approximately two months after that, he was convicted on 10 December 1999 of theft, robbery and using indecent language and sentenced to a term of youth detention in a youth training centre for a period of two months on each of the first two charges and fined in respect of the third. A year further on, on 24 January 2000, he was convicted of assault in company and assault by kicking and sentenced to a term of detention in a youth training centre for a period of 30 days on each charge, each to be served concurrently. Further convictions followed throughout 2000: on 3 July 2000 for theft and failing to answer bail, and on 17 October 2000 for two counts of theft, attempted theft, attempting to commit an indictable offence, burglary and possession of a dangerous article, for each of which he was sentenced to further periods of youth detention in a youth training centre. At the end of that year he was convicted on 11 December 2000 of unlawful assault and robbery, and for the first time was sentenced to a term of imprisonment for a period of 100 days on the first charge, of which 55 days was suspended for 12 months, and for a period of 14 days on the second charge, those to be served concurrently. There followed on 24 January 2001 convictions for robbery and failing to answer bail, for which he was sentenced to imprisonment for a period of three months on the first charge, to be served concurrently with the sentence he was then undergoing and cumulatively on any period owed to the State Parole Board, and on 21 March 2001 he was convicted of escaping from youth training centre, for which he was fined $100.

18. Bradley James, ("the victim"), is one of four sons of a woman who runs a dairy farm in Gippsland. He came to Melbourne early in 2000 in order to study physical education at the University of Melbourne. He then had considerable sporting ability, and it was his ambition to become a physical education teacher. He took rented accommodation in the Tottenham area in order to be close to the university, and during the working week he lived there and worked part-time in a bottle shop in order to support himself. At weekends he returned to the farm in order to assist his mother.

21. The appellant spent 7 March 2002 drinking with friends in the city. By the end of the day he was substantially affected by alcohol. In that condition he travelled with his friends by train from the city to the Tottenham railway station. The victim also travelled on that train to Tottenham. He did not know or have anything to do with the appellant or with his friends, except that, like them, he got off the train at Tottenham.

24. As the victim began to walk from the station to his accommodation, the appellant walked alongside the victim and asked him for his wallet. When the victim refused, the appellant punched him in the face and took the wallet, and $30 from it, before throwing it to the ground, and then stole the victim's mobile telephone.

27. The appellant and his friends then started to walk away, but the victim followed them and he asked that he be given back his telephone. That went on for a while, but they did not give him his phone back. Instead, the appellant jumped the fence of a nearby house, took a metal bar from the front garden of the house, and then swung the bar at the victim, yelling, "Fuck off, fuck off, you little shit." The victim, however, did not depart, but persisted in his requests for the return of the phone, even going so far as to offer $100 to have it back. The appellant thereupon turned round, walked back a few metres to the victim, and struck the victim to the face with the metal bar so hard that it broke his nose, fractured his cheekbone, fractured his right eye socket, collapsed his sinuses, and ruptured his right eye.

30. The victim spent eleven days in hospital while attempts were made to save his eye and as he underwent surgery to reconstruct his nose. Tragically, his eye could not be saved and has since been replaced with a prosthesis. As a result, he is unable any longer to play football or to surf as he used to do, and he was compelled to give up his place at Melbourne University. The effect of the loss of his eye upon his hand-eye coordination may significantly prejudice his chances of succeeding as a physical education teacher. He suffers from post-traumatic stress disorder, with anxiety and mild depression.

33. On 28 August 2003, the appellant was presented for trial before the County Court at Melbourne on one count of robbing the victim of the $30 and the mobile telephone, one count of intentionally causing serious injury to the victim, and one alternative count of recklessly causing serious injury to the victim. The appellant pleaded guilty to the robbery, not guilty to the count of intentionally causing serious injury, and guilty to the alternative count of recklessly causing serious injury. The Crown was not prepared to accept the plea to the lesser charge of recklessly causing serious injury and so the appellant stood trial on the charge of intentionally causing serious injury.

36. After a trial lasting two days, the appellant was convicted of robbery and of intentionally causing serious injury. Following a plea in mitigation, the judge sentenced the appellant on the count of robbery to imprisonment for two years and on the count of intentionally causing serious injury to imprisonment for eight years, and ordered by way of cumulation that one year of the sentence imposed for the offence of robbery be served concurrently with the sentence imposed for intentionally causing serious injury. That made for a total effective sentence of nine years, of which the judge ordered that the appellant must serve not less than six-and-a-half years before being eligible for parole.

39. The appellant now appeals against the sentence on grounds that the judge failed to give sufficient weight to the appellant's youth, the appellant's prospect of rehabilitation, the appellant's plea of guilt to the count of robbery, and the conduct of the trial and the plea of guilty to recklessly causing serious injury, the need to set a shorter non-parole period, and the totality principle.

42. Despite the very competent and helpful submission of Ms Lee, who appeared for the appellant, I am not persuaded that it is appropriate to interfere with the sentence that the judge imposed.

46. The appellant is now 21 years old and at the time of the offences he was 19 years old, and his youth was doubtless a relevant consideration. But it is clear from the judge's sentencing remarks that his Honour took the appellant's youth into consideration. The point was, however, as the judge was careful to observe, that the number and nature of the appellant's prior convictions severely limited the degree of leniency that could be accorded on the basis of the appellant's youth. I see no error in any of that. Despite the appellant's relative youth, the appellant has 39 prior convictions from 14 court appearances, and, as has been seen, many are for offences of violence, constituted of assaulting other persons.

49. The judge had before him the report of Mr Joblin to which I have already referred, in which it was explained that a good deal of the appellant's offences were attributable to the effects of alcohol. It included the following observation:

"It is interesting to note the serious problem he has with alcohol is such that even on one occasion when he was released from youth training centre he was out only a number of minutes before he started drinking. When he was released from Port Phillip, he immediately sought a bottle shop. He found one closed and travelled to find another so he could begin drinking. It seems that on release he has indicated to the authorities that he was going to live with his father. While he may have done that initially, he spent time living with a friend, at times with a girlfriend. It does seem that over most of his time at liberty following his youth training centre sentences, or Port Phillip sentence, he has simply wasted his life drinking. It is my opinion that the continuation of his problems with alcohol relate to an addiction, not only to alcohol but also to the lifestyle he was leading with others of a similar persuasion. What is important is the reason he began such a lifestyle when he was 12 or 13, and as indicated that related to the disaffection and feelings of alienation he felt from his mother and father at that time. He formed a reference and identity with others. This man was then in serious difficulties because he had few other foundations in his life. It is interesting to note that Mr Huynh still maintains a strong liaison and identity with young men from the Pacific Islands."

53. In my opinion that information confirms the propriety of the judge's sentencing disposition. This is not the case of a youthful first-time offender, or even of a youthful offender with more than one prior convictions, but for whom rehabilitation is still to be regarded as more important than specific or general deterrence.[1] It is a case in which the nature of the offences committed, coupled with the appellant's repeated and continuing failure to learn from previous mistakes, calls for strong punishment.

56. So to say is not to deny the proposition articulated by Batt, J.A. in R. v. Mills that young offenders warrant special consideration. So long as there is a realistic prospect of a lenient sentencing disposition facilitating the processes of rehabilitation, that is likely to remain of the first importance. But it is to say, as Batt, J.A. later did in R. v. Teichelman[2], that each case depends upon its own facts, and that there are cases of youthful offenders where the needs for denunciation, punishment and specific deterrence are paramount. Winneke, P. made the same point even more directly in R. v. Dudas[3], when his Honour said:

"True it may be that the appellant can be characterised as a youthful offender, but he was not a youthful first offender of the type who has come under this Court's consideration in cases such as Mills and the cases which have followed Mills. True it is also that the appellant has not before been sentenced to a term of prison, but the sentencing judge was entitled, in my opinion, to come to the view that the time for merciful dispositions was up, in respect of this appellant, who had demonstrated a clear inclination not to mend his ways and indeed had effectively been 'thumbing his nose' for some time at the opportunities which had previously been afforded to him to terminate his criminal activities and to put his obvious God-given talents to law-abiding pursuits. In short, I have little doubt that this very experienced sentencing judge was entitled to regard this man as a poor prospect for rehabilitation, having regard to his well-embedded lawless disposition. I do not share Mr Thomas's view that his Honour was not entitled so to regard this young man."

61. For the same reasons, I do not accept that the judge was in error in the weight or emphasis - or, more accurately, lack of it - which his Honour is said to have attributed to the appellant's so-called prospects of rehabilitation. His Honour said of those:

"Clearly, you have the intellectual ability to undergo further education if you ever put your mind to it, certainly the intellectual ability to make a worthwhile life for yourself outside prison wall, and I hope you do when you are ultimately released. You are a very presentable young man. Indeed, it is a tragedy that you have allowed yourself to drift into alcoholic abuse, and as Mr Joblin says in his report, if you do not address the situation, you may well become an alcoholic derelict. I note that you have undertaken a number of courses at Port Phillip to address your drinking and behavioural problems. That is very much in your own interests. I also note that you have feelings of remorse for what happened, and indeed, as pointed out by your counsel ... in the course of the plea, you accept your responsibility for causing the serious injury, the issue at the trial being whether you caused it intentionally. It is a tragedy the course your life has taken. However, you have committed, as I have said, a very serious crime, crimes that the community expectations are that will be sternly punished, thereby reflecting the need not only public to condemn such behaviour but, as I have already said, deter you and others who may be tempted to act in a similar way in the future."

65. In my opinion, that assessment was accurate. Having regard to past performances, and Mr Joblin's observations, the prospects of rehabilitation could not be regarded as anything more than conjectural. This appellant had been "thumbing his nose" for some time at the opportunities previously afforded to him to mend his ways and to put his innate abilities to some good use. The point which the judge was making, correctly in my view, is that, because the appellant had been convicted of so many prior offences involving violence and harm to others, and despite the chances to mend his ways that had been given to him in the youth training centre he had chosen to offend again, the prospects of rehabilitation in the short term were insignificant.

69. As one would expect, the judge was also alive to the significance of the appellant's pleas of guilty to the counts of robbery and recklessly causing serious injury, and to the suggestions that the appellant had shown remorse. The principles which apply to the plea of guilty and remorse generally are not in doubt[4] and were obviously well known to this very experienced judge. Indeed, his Honour made express reference to those principles in his sentencing remarks. But, as with the prospects of rehabilitation, so too with pleas of guilt and remorse, there comes a point at which the need for denunciation and effective specific and general deterrence necessitates condign punishment. In this case that point was reached.

73. Equally, I see nothing wrong in the way in which the judge calculated the non-parole period of six-and-a-half years. As Callaway, J.A. explained in R. v. V.Z.[5], the considerations which may be taken into account in such calculation are diverse. They include that a non-parole period has a penal element, and that where either general or specific deterrence is important that objective should not be undermined by an unduly short non-parole period, and that a prisoner's prospects of rehabilitation are almost always a significant consideration. It is apparent that each of those considerations would have played a part in the judge's calculation of the non-parole period of six-and-a-half years.

76. It may have been preferable for his Honour to list or otherwise specifically identify all of the considerations to which he had regard in calculating the non-parole period, but I do not think that his Honour was required to go that far. He had already made plain the considerations that informed his conclusion as to the head sentence to be imposed, and it cannot be doubted, I think, that his Honour would have given each of them just as much consideration in setting the non-parole period.

80. I turn last to the complaint that the sentence was crushing, in the sense of being disproportionate to the total gravity of the offending. I do not agree. No doubt eight years is a stern sentence for someone of the appellant's relatively tender years. But, as was explained earlier today in D.P.P. v. Zullo[6], a sentence of eight years' imprisonment is a long way from the very top of the sentencing range for intentionally causing serious injury. Despite the appellant's youth, and despite that a sentence of eight years' imprisonment may for someone of his age be a long sentence indeed, this was a serious offence, with serious aggravating circumstances, which was committed after the appellant had been given numerous lenient sentences for previous offences of violence, and thus numerous previous opportunities to mend his ways. It called for condign punishment. Consequently, in the particular circumstances of this case, I am not persuaded that a sentence which is significantly less than half the statutory maximum of 20 years should be regarded as manifestly excessive, or that by itself, or in combination with the sentence that was imposed for robbery, it should be regarded so much as crushing as to warrant this Court's

84. I would, for those reasons, dismiss this appeal.

88. For the reasons given by Nettle, J.A., I agree that the appeal should be dismissed.

96. The formal order of the Court is that the appeal is dismissed.

[1] R. v. Mills [1998] 4 VR 235.. Compare R. v. Chaffey [1999] VSCA 12 and R. v. Bell [1999] VSCA 223.

[2] [2000] VSCA 224.

[3] [2003] VSCA 131.

[4] See Cameron v. The Queen (2002) 209 C.L.R. 339, R. v. RND [2002] VSCA 192 at [18].

[5] [1998] VSCA 32.

[6] [2004] VSCA 153.