R v HUYNH; R v LAM; R v TA

IN THE COURT OF CRIMINAL APPEAL No: 60442/99 60443/99 60444/99 SPIGELMAN CJ HULME J SMART J

Monday, 14 February 2000 REGINA -v-Ding Khuong HUYNH REGINA -v-Tuan Van LAM REGINA -v-Non Huu TA

1 SPIGELMAN CJ: I invite Justice Hulme to deliver the first judgment. 2 HULME J : On 16 June 1999 the above named Respondents were sentenced by his Honour Judge Viney in respect of charges of affray to which they had pleaded guilty on 27 April 1999. 3 By notices dated 5 August 1999, the Director of Public Prosecutions has appealed against the orders made upon the ground that the sentences were inadequate. Notice that the Director was considering appeals had been forwarded by letter dated 16 July 1999, although that forwarded to Mr Ta was returned unclaimed. 4 On the evening of 21 June 1996, there was a brawl in New Canterbury Road, Petersham in the vicinity of a roller skating rink between two groups of young men mostly of Vietnamese origin. Eye witnesses estimated that up to thirty persons were involved. One youth was stabbed to death, a second sustained a broken leg and other injuries, and the Respondent Huynh sustained a knife, or similar, wound to his left wrist. Judge Viney accepted the description of the incident as a "frightening melee". 5 The statement of facts which was tendered by the Crown without objection records that the Respondents were among a group of ten to fifteen young men who had met at a house in Silverwater on the evening in question. Another offender, a Mr Diep, had produced a bundle of some ten machetes and placed them on the floor, near the door of the house. However, the statement went on to say that there was no evidence that any of the Respondents had a weapon during the affray, no evidence that any of them was involved in the attack on the deceased, and that the Crown accepted pleas to affray on the basis that each Respondent was involved to some extent in the brawl. In fact each had been charged with manslaughter and malicious wounding in addition to the charge of affray and their pleas to the last mentioned charge were accepted in full satisfaction of the indictment. 6 Other material tendered by the Crown as relevant to all Respondents and without objection revealed that the participants in the brawl were all of Asian appearance; a number of the participants were armed with machetes and other weapons including a tomahawk; vehicles were climbed on and smashed with machetes; and participants were rushing along the roads. 7 It was accepted that the pleas were entered at the first reasonable opportunity. The learned sentencing judge expressed the view that the pleas had "more than the usual utilitarian value of simply saving the cost of a long trial in the face of a strong Crown case" taking the view, judged by his comments on some of the evidence, that conviction was by no means certain. On the other hand, Judge Viney did not make a finding that any one of the Respondents were contrite. In pre-sentence reports it was said that Mr Ta appeared to show little remorse for his actions and Mr Huynh tended to disclaim any responsibility and his involvement seemed not to have any impact other than it brought him before the court. The report on Mr Lam says little on the topic of remorse, certainly nothing in Mr Lam's favour. 8 In part, the evidence against the Respondents consisted of recorded interviews, and, of course, the statements of each so recorded is evidence against only its author. There were differences between them and it will be convenient at this stage to proceed to consider matters peculiarly to each Respondent.

Tuan Van Lam 9 Judge Viney recorded that Mr Lam's "plea of guilty... was on the basis of his concession that he was there, that he was part of the crowd, as it were, and by his presence encouraged the others involved... I cannot be satisfied beyond a reasonable doubt that Lam participated more than he, by his plea, concedes." 10 At the time of sentence, Mr Lam was twenty-three years old. He had left Vietnam on his father's boat in about 1980, ultimately arriving in Australia. He attended school, but acquired almost no literary skills. Judge Viney reported that Mr Lam had drifted into bad company, but seems to have accepted evidence from Mr Lam's brother that the Respondent had settled down a lot, worked with his sister, was no longer in receipt of social security payments and his conduct had become significantly more responsible. A pre-sentence report recorded that Mr Lam was co-operative and seemed to have matured since his last court appearance. 11 Mr Lam's antecedents included convictions for stealing a conveyance and being an unlicensed driver in April 1994 and driving while his licence was cancelled and stating a false name and place of abode on 9 April 1996. On 17 June 1995 he had also committed an offence of affray in respect of which he was convicted on 7 May 1996 and sentenced to six months of imprisonment. He appealed and in June 1996 his appeal against conviction was dismissed, but the sentence of imprisonment was reduced to periodic detention. He was on bail at the time of the offence with which this Court is concerned. Although it was subsequent to his commission of that offence, it is appropriate also to record that in December 1996, he committed further offences of driving while his licence was cancelled and stating a false name. In March 1997 for these offences he was fined $1,000 and required to enter into a two-year recognizance under s558 of the Crimes Act . 12 Judge Viney observed that the fact Mr Lam was on bail at the time of the subject offence was an aggravating feature, but took the view that the community would be best served by deferring sentence upon terms that Mr Lam entered a recognizance in the sum of $1,000 to be of good behaviour for three years and to accept the supervision and guidance and obey all reasonable directions of the probation service. His Honour said he left it to the discretion of the probation officer to cease supervision after twelve months if the officer thought it appropriate.

Non Huu Ta 13 Judge Viney recorded that Mr Ta was at the skating rink and: "heard there was a fight outside and went out. There is no evidence that he participated in the fight... His counsel, Mr Young, pointed out that there is no evidence to establish a case against him other than his admitted presence. His plea of guilty is on the basis that he was present and thus by his presence may have encouraged the others who were involved. Thus his criminality is at the lowest end." 14 Mr Ta's father was killed when Mr Ta was four years old and he was raised by his mother since then. He was twenty-one at the time of sentence. Judge Viney seems to have accepted observations in a pre-sentence report to the effect that Mr Ta: "has lacked the benefit of paternal guidance and probably the poor choice of associates led him to this incident. He is not on social services and works for his uncle. He does not take drugs and is not involved in gambling or illicit activities." 15 Although Judge Viney does not refer to this part of it, the author of the report also observed that Mr Ta presented himself as a person with low self confidence and without any goals as to his immediate future. 16 Mr Ta's only other prior conviction was on a charge of entering enclosed land without lawful excuse. This was in November 1988 and he was fined $100. 17 His Honour deferred passing sentence on Mr Ta entering into a recognizance on similar terms as that described above in the case of Mr Lam, save and except that in Mr Ta's case the period was two years.

Dinh Khuong Huynh 18 His Honour records that when the fight erupted Mr Huynh ran from the skating rink towards the fight, was struck with either a knife or machete, the wound requiring four stitches. Mr Huynh had said that he did not know why he ran into the fight, although he also said in his interview at a different place that it was with a view to stopping the fight. There was no evidence that Mr Huynh inflicted blows. 19 Born in Vietnam, Mr Huynh lived in New Zealand for about six years prior to arriving in Australia in 1993. He completed his HSC, although with marks generally below average. Apart from six months employment soon after he left school, he had been unemployed. His Honour seems to have accepted the statement in his pre-sentence report that: "Mr Huynh presents as a polite and relatively confident young man. He would appear to have lacked motivation and direction which led to a poor choice of associates and some anti-social behaviour. He does now seem to have removed himself from this social circle and to have gained motivation towards seeking a more productive use of his time." 20 Mr Huynh was twenty-three years old at the time of sentence and had no prior convictions. 21 Again his Honour deferred sentence on the condition that Mr Huynh entered into a recognizance for two years, but otherwise on terms similar to those described above in the case of Mr Lam. 22 So far as is presently relevant, sections 93C and 93D of the Crimes Act 1900 provide: "93C (1) A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to penal servitude for 5 years. (2) If 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of sub-section (1)." "93D (2) A person is guilty of affray only if the person intends to use or threaten violence or is aware that his or her conduct may be violent or threaten violence." 23 The Respondents' pleas meant that they had been guilty of, at least, the minimum criminality implicit in the above provisions and it is arguable from the remarks of the learned sentencing judge which I have quoted above, that he misapprehended the effect of the Respondents' pleas and took a far more charitable view of their activities than he was entitled to. His Honour's statements when dealing with Messrs Lam and Ta to the effect that their pleas of guilty were on the basis that they were present and by their presence encouraged, or may have encouraged, the others involved, were, as statements of the Respondents' criminality necessarily implicit in their pleas, at least arguably wholly inadequate. 24 His Honour made no such statement when dealing with the position of Mr Huynh, but neither did he indicate that he approached Mr Huynh's guilt on any other basis. It is, therefore, to be inferred that he adopted the same approach. 25 In written submissions, the Crown did not challenge that his Honour's approach was, as a matter of law, incorrect. Following remarks made during the course of hearing, that submission was advanced, but not having been dealt with in written submissions. It obviously was not canvassed in the written submissions for the Respondents. 26 The Court has decided without hearing the Respondents that the Crown appeals should be dismissed and in these circumstances it is unnecessary for me to go further than I have done in my reference to the criminality necessarily implicit in a plea to the charge of affray. 27 The Crown pressed on the Court statements of the Full Court of the Supreme Court of Victoria in R v McCormack (1981) VR 104 at 110:- "A riot, like an affray, involves both violence and public alarm. They involve public alarm because they are currently or potentially dangerous. The level of the violence used and the scale of the affray or riot are factors relevant to sentence: Thomas , Principles of Sentencing , 2nd Ed, p 110. A riot usually carries with it an inherent danger of injury to persons or property or both. There is a danger that members of the crowd will respond to what has been called 'the psychology of the crowd': Wright v McQualter (1970) 17 FLR 305 at 318. The danger is great when the crowd can be described as a mob threatening violence... From the fact that a riot is dangerous it follows that it is reasonably foreseeable that some injury may result from it. If for some reason special to an individual rioter he did not realise that the riot was dangerous or did not foresee that a particular injury or type of injury may result, that could be a factor given weight in mitigation of penalty. The fact that a particular injury resulted from the riot could be treated as an aggravating factor... Before turning to other grounds we say something about the approach to sentencing a rioter. The basic approach is that the offender is not sentenced for his individual acts considered in isolation. He is sentenced for having by deed or encouragement been one of the number engaged in a crime against the peace 'any participation whatever, irrespective of its precise form in an unlawful or riotous assembly of this type derives its gravity from becoming one of those who, by weight of numbers, pursued a common and unlawful purpose. The law of this country has always lent heavily against those who, to attain such a purpose, use the threat that lies in the power of numbers'; R v Caird (1970) 54 Cr A R 499 at 507. While this is the basic approach it is open to the sentencing judge at his discretion to take into account the actual conduct of an offender in a riot, by way of aggravation... or mitigation." 28 With much of this passage I would, with respect, agree. However, it must be recognized that the offence of riot, provided for in s93B of the Crimes Act requires the presence or threat of unlawful violence of twelve or more persons for a common purpose - circumstances both more pregnant with the eruption of mob violence than many cases of affray and often making it easier as a matter of inference to attribute vicarious blame, or responsibility, for consequences of the riot. For this and other reasons, not all of the remarks just quoted apply to the offence of affray, although clearly some do. 29 Furthermore, there is also much to be said for the distinction, adverted to in Thomas, Principles of Sentencing , 2nd Ed, p 111, between premeditated affrays, including pitched street battles of rival gangs, and the affrays which break out spontaneously in response to an unforeseen event. All other things being equal, clearly the former merit heavier punishment than the latter. 30 It becomes, therefore, necessary to say something more about the facts. There was limited evidence as to the Respondents' involvement. One witness said that she saw Mr Lam holding someone being attacked, but the judge expressed doubts about the reliability of the witness' identification. In reaching this conclusion his Honour cannot have relied on anything that Mr Lam said for in his interview with the police Mr Lam denied that he had been there on the night. I must confess I can see no valid basis for his Honour's doubt but the Crown has not challenged this finding and accordingly this Court must accept it. There is no other evidence Mr Lam became actively involved. 31 When one has regard to Mr Huynh's injury and what he had to say when talking to the police as to the circumstances in which it occurred, the inescapable inference is that he sought to, and did, become involved in the fracas. It is, I think, to be inferred from his ERISP that at the time he intervened he was aware of the presence of weapons, if not being used but at least held by some of the participants. Mr Huynh did say, as I have indicated, that his involvement was with a view to breaking up, or stopping, the fight. He said he left as soon as he was injured. There is no evidence that he became actively involved. 32 There is no evidence that Mr Ta became actively involved. 33 An important issue which, at least so far as one can judge from his Remarks on Sentence, received scant attention from His Honour is whether there is any significant premeditation on the part of the Respondents or foreknowledge of what was liable to occur. In each of their ERISPs, Messrs Ta and Huynh admitted he was there and that during the fight and afterwards saw people with machetes. However, apart from the presence of Messrs Ta and Huynh at the Silverwater house with some ten or twelve other people, and the statement that about ten machetes were placed near the door by the co-accused Mr Diep, I am unable to see any persuasive evidence that Messrs Ta and Huynh were aware of the likely presence of the weapons. 34 The Crown has not submitted that this Court should make a finding, based on their presence at the house at Silverwater and the presence of machetes there, that prior to the commencement of the fracas any of the Respondents knew that weapons would be involved, or indeed that a fracas was likely to occur. In those circumstances, his Honour not having made any finding to this effect, this Court should not do so. Although I have no doubt there was premeditation on the part of some people, and clearly some brought weapons into the dispute, the evidence does not persuade me that the Respondents here had any such premeditation prior to the dispute arising. Of course, had they had such premeditation or had they brought weapons into the fight, the result of this appeal would be almost certainly different from that which it will be. 35 In light of the limited evidence which there was as to the Respondents' involvement, it seems to me that one should not hold against them the death which occurred, or the presence of weapons, or the magnitude of the brawl overall. The limited extent of the evidence of the Respondents' knowledge, participation and the duration of their participation means that the penalty appropriate to them is far less than due to whoever laid out the machetes at the door of the Silverwater house, or those who brought weapons to the scene. One must approach the issue of what is a proper sentence on that basis. 36 In light of these conclusions and the clean or almost clean record of Messrs Ta and Huynh, I am not persuaded that, even at first instance, I would have imposed a harsher sentence than Judge Viney did on these Respondents. Particularly as these are Crown appeals, I am of the view that this Court should not interfere with the sentences imposed on Messrs Ta and Huynh and should dismiss the appeals in relation to them. 37 The situation as to Mr Lam is different. Prior to the subject offence, he had been dealt with on three occasions by a court and, I have no doubt, had pointed out to him the obligations all citizens have to obey the law. One of those occasions also involved, as has been said, the offence of affray and the seriousness of committing that offence demonstrated by the imposition of a gaol term. That sentence was imposed but two weeks prior to the instant offence. His commission of that further offence while on bail was, as numerous authorities in this Court have recognized: R v Andrew Skillan Jones (unreported, CCA, 30 June 1994), R v Richards (1981) 2 NSWLR 464, R v Redman (1990) 47 A Crim R 181 - a matter of major aggravation. By December 1996, Mr Lam had clearly not reformed. His offence deserved a gaol term. 38 However, this is a Crown appeal, this Court has a discretion not to interfere. At least so far as this Court has been informed, it is now over three and a half years since Mr Lam committed an offence - a distinct improvement on his past. Although I do not for one moment suggest that Judge Viney should not, as his Honour warned, send Mr Lam to prison if he breaches his recognizance, I am of the view that the Court should, in the exercise of its discretion, dismiss the appeal in his case also. 39 SPIGELMAN CJ : I agree. 40 SMART AJ : I also agree. 41 SPIGELMAN CJ : The order of the Court is the appeal is dismissed in each case.

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