R v Huynh

District Court of NSW|2023-01-27

JUDGMENT

The offender appeared at Burwood Local Court on 7 September 2022 and pleaded guilty to two charges, namely attempted aggravated break and enter with intent knowing person there, contrary to s 113(2) Crimes Act 1900 (NSW) and contravene prohibition/restriction in AVO (domestic), contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (s 166 certificate). The pleas of guilty were adhered to at the sentencing hearing on 27 January 2023.
The maximum penalty for the offence of attempted aggravated break and enter is 14 years imprisonment and for the offence of contravene prohibition/restriction on AVO is two years and/or 50 penalty units.
Admitted on behalf of the Crown was the following: 1. Charge certificate (Ex C1) 2. S 166 Certificate (Ex C2) 3. Signed agreed facts (Ex C3) 4. Criminal history (Ex C4) 5. Custodial history (Ex C5) 6. Sentencing Assessment Report of Fairfield Community Corrections dated 31 October 2022 (Ex C6) 7. Apprehended domestic violence order (Ex C7) 8. Facts from court file - H83705168 (Ex C8) 9. Facts from court file - H83833822 (Ex C9) 10. Facts from court file - H84872438 (Ex C10) 11. Facts from police - H85215060 (Ex C11) 12. Facts from court file - H86082276 (Ex C12) 13. Facts from court file - H84976628 (Ex C13) 14. Victim impact statement dated 15 November 2022 (Ex C14)
Admitted on behalf of the offender was the following: 1. Letter from the offender addressed to the court (Ex O1) 2. Letter from the offender addressed to his partner (Ex O2) 3. NSW Department of Corrective Services case note report dated 9 November 2022 (O3) 4. Remand Addiction Letter of Attendance (Ex O4) 5. Remand Domestic and Family Violence Program letter of attendance dated 21 September 2022 (Ex O5) 6. Telephone screenshots (Ex O6) 7. Letter from Coleman Greig Lawyers dated 20 April 2022 (Ex O7)

Background to the offending

The offender is the ex-partner of the victim Nguyet Anh Huynh and there are four children to the relationship. On 22 August 2021 a provisional apprehended domestic violence order was in place prohibiting the offender from assaulting, threatening, stalking, harassing, or intimidating the victim, as well as damaging or destroying the property of the victim.

Agreed facts

At about 9pm on 12 October 2021, the victim was in the unit she occupied with her four children in Riverwood when she heard the doorbell buzz twice. CCTV footage captured the offender entering this address at 9:15pm via a car park roller door, following a vehicle entering the car park. The offender was carrying a blue backpack and brown satchel bag which were later located by police outside the victim's home.
At 9:28pm the offender was seen on CCTV exiting the fire stairs near the car park roller door and entering the car park again by going under the door after a car had exited. CCTV footage also captured the offender walking through the car park. At 9:32pm the offender was captured on CCTV peering through a fire exit door before walking downstairs. He was then seen to enter a lift which he exited shortly thereafter. At 9:50pm CCTV footage captured a blue jacket, similar in appearance to the one the offender was seen wearing, discarded in the door of lift three, ensuring that the doors remained ajar.
The victim heard knocks at the door and the offender identified himself. The victim immediately contacted 000, having told the offender that she was doing so. The offender then began attempting to break down the door and was banging on the door loudly. He was asking the victim questions and becoming increasingly aggressive. The victim noticed the door being pushed in, and as a result, her and her son were pushing against the door to try and keep it closed.
Between 9:50pm and 9:55pm, the offender was seen on CCTV running in the direction of the victim's front door, backwards and forwards several times, in an attempt to force open the door. In attempting to enter the home the offender had broken the handle of the door and removed the metal draft stop from the bottom of the door. The offender then began pushing items such as paper and photographs through the gaps in the door which were ignored by the victim.
The victim was in a very distressed state whilst speaking to the 000 operator saying, "he is getting in the door". The victim felt intimidated in circumstances where the offender was acting aggressively. She was fearful for her and her children's safety if the offender been able to enter the property.
At 9:52pm police arrived at the address and proceeded to level two by stairs. The victim's son had to throw police a set of keys so that they could access level two due to the lift being inaccessible. CCTV captured the offender at 9:57pm running along the hallway, now without shoes, before running in the opposite direction and making an unsuccessful attempt to retrieve his jacket from between the lift doors. The police were unable to locate the offender.
It is apparent that the victim was distressed when talking to police.
The offender later told police that he panicked and hid in an electrical cupboard when the police arrived and remained there until 5am the next morning. He later spoke to a resident requesting that the police be called. The police subsequently attended, and the offender was arrested.
The offender subsequently participated in an Electronically Recorded Interview of a Suspected Person ("ERISP") where the offender provided the following information: 1. He was aware of the apprehended domestic violence order. 2. The offender discovered the victim living at the address having received mail. 3. On the date of the offending the offender was feeling lonely and missing his children and, on a hunch, went to the address and saw the victim's car in the car park. 4. He was able to ascertain the unit occupied by the victim by reference to the numbers in the car park. 5. Having spoken to the victim through the closed door, the offender tried to open the door with his hands until the handle broke, cutting his hand and causing him to become upset. 6. The offender admitted undoing two screws attached to the draft stop to the door and took off the metal strip which he then used as leverage to try and open the door. 7. The offender admitted to damaging the doorknob and refused to leave despite repeated requests from the victim to do so. 8. The offender passed things through the door which he thought the victim might need including passports, login details, cash and books he had been writing. 9. The offender admitted placing the jumper in the lift door so as to prevent access by police. 10. The offender said "I don't think she was very intimidated with me, no."

Further background to the offending

As previously noted, the offender and the victim have been involved in an intimate relationship for a period of approximately 20 years, with four children. On 16 August 2021 the offender and the victim, whilst residing together, were involved in a verbal argument which led to a physical altercation. The offender was convicted of common assault arising from this altercation and was thereafter the subject of an apprehended domestic violence order.
Further, the offender was convicted for the following offences committed between 1 June 2021 and 14 June 2021: 1. assault occasioning actual bodily harm 2. common assault 3. common assault 4. intentionally choke without consent 5. intentionally choke without consent
These convictions arose from further interactions between the offender and the victim. According to the facts arising from these convictions, the interactions involved significant violence perpetrated by the offender against the victim, including dragging the victim by her neck off a bed, onto the floor, towards a lounge room and onto a couch. In further interactions the offender had pinned the victim onto her bed with both hands before pushing the victim's face against the wall and holding it there for a short period.
Accordingly, at the time of the subject offending, the offender had already committed a number of offences of violence against the victim resulting in the apprehended domestic violence orders, the terms of which included not approaching, contacting or going within 200 m of the victim's home.

Subjective material

In a letter addressed to the court (Ex O1), the offender acknowledged that his actions were "unacceptable" and that the repeated offending since had made the offending more serious. He claimed that drugs and "strong emotional factors" contributed to his conduct whilst acknowledging his behaviour was still "wrong and detrimental". He accepted full responsibility for his behaviour and apologised to the court, promising to "change" and "be a better person".
In a separate letter to the victim (Ex O2), the offender again expressed his remorse for what he had done. His time in prison had allowed him to reflect and acknowledge that his behaviour was wrong and did not "want to repeat the same mistakes going forward". He acknowledged that drugs were a major factor in the relationship background and since being in prison he had remained sober. He claimed to be "back to my old self again" and asked for the victim's forgiveness. He expressed his willingness to be part of his children's lives, make amends and "be a better father than I was a husband".
A case note of Corrective Services completed on 25 July 2022 notes that the offender had been working in the Intake/Property area of the remand centre for close to a month and was one of their best workers. The offender worked as directed as well as using his own initiative. He spoke and communicated well and was always respectful and helpful. He offered helpful advice for future projects and appeared to enjoy the work. In a subsequent case note dated 4 November 2022, it was recorded that the offender had been a "sweeper" for four months and had continued to work hard, show discipline and remorse for his offending behaviour.
The offender had also attended a remand addiction course and domestic and family violence program.
The screenshot created 14 February 2022 (Ex O6) shows various emojis which were sent as part of messages. No further submissions were made in respect to the relevance of this material. Similarly, a letter from Coleman Grieg Lawyers dated 20 April 2022 notes orders of the Family Court following a property settlement in December 2021 involving the transfer of several properties to the victim. The correspondence noted the signing of transfer documents by the registrar of the Family Court and gave notice to the offender that he would be required to vacate one of the properties. No further submissions were made by the offender in respect to the relevance otherwise of this document.

Crown evidence

Reference has already been made to the history of violence perpetrated on the victim. It is apparent there were further breaches of the apprehended domestic violence order by way of images transmitted through the "WhatsApp" social media platform.
A victim impact statement referred to the offending the subject of this sentence, noting that the victim and her two sons were "holding onto the door fearing for (their) lives". The victim stated that every time she now hears the door buzzer ring, or someone knocks on the front door, she immediately becomes scared, freezes, her heart beats faster and she starts to shake. She was seeing a family counsellor for her trauma. The victim stated that she is now always on edge and looking around when she leaves the home. She eventually stopped talking to her friends of 20 years because they are also friends of the offender. The victim stated that she no longer trusted anyone and felt compelled to move home as she did not feel safe and was concerned for the safety of her children.

Sentencing Assessment Report

A Sentencing Assessment Report was completed on 31 October 2022 following interviews with the offender, as well as contact with the offender's brother. The offender stated that he would be residing in temporary accommodation upon his release from custody and had minimal family support in the community, noting his mother was deceased and he had an estranged relationship with his father and siblings.
The offender stated that prior to entering custody he was self-employed for 15 years running an air-conditioning business and expressed a desire to return to this work if released. The offender appeared reluctant to discuss the factors relating to his offending behaviour but rather expressed the feeling of missing his children and claiming he went home with the intention of seeing them.
The offender denied that his actions were driven by anger or aggression, maintaining that the door handle was broken by accident. In a similar vein, the offender sought to attribute his domestic violence offending to continued methamphetamine use and appeared to deflect responsibility of actions by using drugs as a rationalisation for his offending behaviour. The offender expressed minimal concern regarding the impact his actions would have had on his family. Whilst acknowledging that his family would have been scared, he was unable to explain why they may have felt this way.
The offender expressed a willingness to undergo drug and alcohol counselling if sentenced to a community-based order, also expressing willingness to accept psychological domestic violence intervention. The offender was assessed at a medium risk of reoffending. Any supervision plan implemented by Community Corrections would include referral to a local drug and alcohol counsellor, referral to domestic family and violence programs, and the need to engage in cognitive behavioural intervention to promote behaviour change. The offender was assessed as suitable to undertake community service work.

Crown submissions

The Crown noted that a sentence of full-time detention or a supervised order must be imposed for a domestic violence offence unless the court is otherwise satisfied that a different sentencing option is more appropriate. The Crown contended that the section 5 threshold had been crossed and that full-time custody was the only appropriate sentence.
Following a review of the facts, and relevant sentencing principles, the Crown contended that the objective seriousness of both offences was above the mid-range. The reasons for so contending included that the offence involved planning, repeated attempts to gain access to the premises, the offender hearing the victim's distress during the incident, the offence taking place in the evening when the victim was home alone with her children, and that the offences took place in the context of further domestic violence related offending. It was noted that the offending occurred in circumstances where the offender was in breach of an apprehended domestic violence order.
Aggravating factors, in accordance with s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), included the offences having been committed whilst on conditional liberty, the offending took place in the presence of children, and that the offender had a previous record of convictions relating to like offences with the same victim.
The Crown acknowledged that the offender was entitled to a 25% discount given the early plea, although to an extent this was an acknowledgement of a strong Crown case. The Crown contended that there was no evidence of remorse or contrition although this submission was made prior to the subjective material being served. It was noted that despite the offender's statements to Community Corrections that he might have been under the influence of drugs at the time of the offending, this was not to be taken into account as a mitigating factor (s 21A (5AA) of the Crimes (Sentencing Procedure) Act).
The Crown contended that general deterrence had a significant role to play in domestic violence offences citing Yaman v R [2020] NSWCCA 239 that general deterrence was significant "to mark society's strong disapprobation of such conduct, and to reinforce the right of women to live unmolested by a former partner". Further, that offences involving domestic violence are frequently committed and "the criminal justice system must play a part in protecting those who have been or may be victims of it". The Crown further relied upon the comments of the New South Wales Court of Criminal Appeal in Cherry v R [2017] NSWCCA 150 where it was observed that the area of domestic violence required "rigorous and demanding consequences for perpetrators for the purpose of protecting partners, family members and the wider community".
The Crown noted these were not first offences of this kind committed by the offender and that this was a relevant factor in issues of deterrence. The Crown referred to the various authorities dealing with a finding of special circumstances.

Offender's submissions

The submissions contended that whilst the offender admits being at the address, it was not with "ill intent". His decision was "spontaneous" with no intention to harm anyone but rather to ensure his children were safe. The submissions noted that prior to the breakdown of the marriage the offender had no criminal antecedents. Since being in custody he has attempted to spend his time in a "positive manner", working and attending courses.
It was contended that the objective seriousness fell in the middle to low range. This was in circumstances where the offender was "a father desperate to see his children", behaving in a manner in which he gave no thought to his actions and how they would affect the victim.
The submissions noted that the mitigating factors included no prior history other than those arising from the relationship with the victim, an early plea of guilty, the absence of weapons, and the spontaneity in which the conduct occurred. The submissions also note the offender's expressions of remorse.

Consideration

The offences were committed in the context of a history of domestic violence. Indeed, the offender was the subject of an apprehended domestic violence order which was breached by virtue of his offending.
The offence of attempted aggravated break and enter with intent involved a considerable degree of violence, with the offender attempting to force entry through a locked door knowing that the victim and their children were inside the unit. He refused to comply with demands of the victim to leave. Unsurprisingly the victim was in fear for her life, and was concerned for the welfare of her children, in circumstances where the offender had perpetrated earlier violence on the victim.
There were several aggravating factors including the offence involved threatened use of violence, the offender had a record of previous convictions for serious personal violence offences in circumstances where the offence similarly involved violence, the offence was committed in the presence of children, substantial emotional harm was caused to the victim, and the offence was committed whilst the offender was on conditional liberty. Further the offence was committed in the home of the victim given the broad interpretation of what is considered a home, as observed by Bathurst CJ (Beazley P agreeing) in R v Lulham [2016] NSWCCA 287 at [5]: "The word "home" must be considered in the context in which it appears in the legislation. As was made clear in the Second Reading Speech, to which I have referred in Jonson v R at [14], the reason it can be taken into account as an aggravating factor is that an offence to which the subsection applies involves a violation of the victim's reasonable expectation of safety and security in his or her home. It seems to me this expectation would extend not only to the actual physical residence but to the area on the same premises, at least reasonably adjacent to that building."
Further I accept the Crown's submission that the offending involved a degree of planning and deliberate conduct in preventing police access via the lift in the victim's unit complex.
In all the circumstances I find that the offences fall within the mid-range of objective seriousness.
General and specific deterrence looms large in the sentencing of the offender. The offender has prior convictions for offences of personal violence perpetrated on the victim. Despite being convicted and sentenced in respect to these offences, and being the subject of an apprehended domestic violence order, the offender committed these further offences, involving a not insignificant degree of violence, resulting in the victim fearing for her own safety and that of her children. The sentence must act as a significant deterrent on the offender committing similar offences against the victim and their children. It is beyond doubt that domestic violence offences can lead to catastrophic consequences. The courts are duty-bound to denounce the conduct of an offender who commits domestic violence offences, and even more so for repeat offenders.
Given the prevalence of such offences there is also a significant general deterrence, consistently recognised by the Court of Criminal Appeal including those relied upon by the Crown (Yaman at [131]; Cherry at [78]; R v Hamid (2006) 164 A Crim R 179 at [195] - [196]). Domestic violence offences are all too common. They are occurring at an alarming rate and at times, disturbingly, have fatal consequences.
In Yaman, as previously noted, Wilson J with whom Fullerton and Ierace JJ agreed said the following at [131]: "General deterrence had a significant role to play. Offences committed by (mostly) men who, like the applicant, refuse to accept that a partner or former partner is entitled to a life of her own choosing, must be dealt with sternly by the courts, to mark society's strong disapprobation of such conduct, and to reinforce the right of women to live unmolested by a former partner. Offences involving domestic violence are frequently committed, and the criminal justice system must play a part in protecting those who have been or may be victims of it."
Further in Hamid, Johnson J with whom Hunt AJA and Latham J agreed, said at [86]: "In sentencing a domestic violence offender, and in particular a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important."
Further, as s 3A of the Crimes (Sentencing Procedure) Act provides, it is necessary to ensure that the offender is adequately punished for the offence and to make the offender accountable for his actions. The sentence must also reflect the harm done to the victim of the crime and to protect the community from the offender.
The court also considers the need to promote the rehabilitation of the offender, including his documented efforts whilst incarcerated, although this is of lesser significance given the offenders repeated offences. However, to an extent this must be balanced against the offender's unsworn statements expressing some contrition and remorse and his efforts whilst incarcerated. However, any such expressions of remorse must be considered in the context of the statements in the Sentencing Assessment Report in which the offender deflected responsibility for his actions to the use of drugs, and the failure to recognise the significant harm caused by the offending.
In all the circumstances, I am satisfied that the s 5 threshold has been crossed and that no penalty other than imprisonment is appropriate.
The offender entered pleas of guilty to each of the offences and in accordance with s 25D(2) of the Crimes (Sentencing Procedure) Act is entitled to a reduction of 25% in any sentence that would otherwise have been imposed.
Whilst there are two offences in respect of which the court is passing sentence, the second being on a s. 166 certificate, this is an appropriate matter for the court to invoke s 53A of the Crimes (Sentencing Procedure) Act and impose an aggregate sentence. It will be necessary for me to indicate what sentence I would have imposed had separate sentences been imposed.
A court sentencing an offender for more than one offence must determine the appropriate sentence for each individual offence and then consider questions of accumulation or concurrence, bearing in mind the principle of totality. The effect of the totality principle is to require me, having assessed individual offences, to stand back and consider whether the overall sentence to be imposed is just and appropriate and reflects the overall criminality of the offending.
In Kuruppu v R [2021] NSWCCA 261 the Court of Criminal Appeal dismissed the appellant's severity appeal from an aggregate sentence of seven years, with a non-parole period of four years and three months, in respect of four offences of intentionally choking, aggravated break and enter with intent to commit serious indictable offence, contravention of an apprehended violence order and common assault. The indicative sentence in respect to the aggravated break and enter with intent was five years and three months and the contravention of the apprehended violence order was 18 months. The circumstances of the offending included considerable violence involving the offender throwing a paver through a window before entering the house and climbing through the broken window. The offender's conduct thereafter gave rise to the intentionally choking count.
Wright J with whom Meagher JA and Fagan J agreed noted, in dismissing the severity appeal, that the criminality involved in the choking offence was not part of, or subsumed in, the criminality inherent in the aggravated break and enter offence. In the circumstances the criminality involved in each of these offences was in a large measure separate and distinct, even though they were aspects of events that occurred on the one occasion.
In respect to Count 1 (seq 1), aggravated break and enter with intent knowing persons there, the appropriate sentence is five years, from which is to be deducted the 25% for the utilitarian plea of guilty, resulting in a total sentence of three years and nine months.
In respect to Count 2 (seq 4), contravene prohibition restriction in AVO (domestic) the appropriate sentence is 12 months from which is to be deducted the 25% for the utilitarian value of the plea of guilty resulting in a total sentence of nine months.
Taking into account the need for some accumulation between the sentences, a total aggregate sentence of four years is appropriate.
Whilst it is the offenders first time in custody, I am not satisfied that there are otherwise special circumstances justifying a departure from the non-parole period provided in s 44 of the Crimes (Sentencing Procedure) Act. In the circumstances, I impose a non-parole period of three years.
The offender has spent a total period of 372 days in custody for all offences, including those unrelated. The offender has spent 311 days in custody solely referable to these offences. The Crown contends that it is appropriate to backdate the sentence for a period of somewhere between 311 - 372 days with some degree of accumulation given there were discrete offences, although arising from the same apprehended domestic violence order. The solicitor for the offender agreed that some accumulation was appropriate. In all the circumstances, the sentence is to be backdated allowing 330 days in custody.

Orders 1. In respect of the offences to which the offender has pleaded guilty, the offender is convicted. 2. In relation to Count 1 (Seq 1), taking into account the plea of guilty, I indicate a sentence of imprisonment for three years and nine months. 3. In relation to Count 2 (Seq 4), taking into account the plea of guilty, I indicate a sentence of imprisonment for nine months. 4. I impose an aggregate sentence of four years to date from 17 March 2022 to 16 March 2026. 5. I impose a non-parole period of three years to date from 17 March 2022 and expiring on 16 March 2025. 6. The earliest date the offender is eligible to be released to parole is 16 March 2025. 7. The backup offence of Seq 5 on the s 166 certificate is withdrawn and dismissed.

Amendments 15 February 2023 - Coversheet - corrected case name Paragraph [6] - removed personal identifiers 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 February 2023

Crimes Act 1900(NSW)s 113(2)

Crimes (Sentencing Procedure) Act 1999(NSW)ss 3A, 21A(5AA), 21A(2), 44, 53A

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