Director of Public Prosecutions v Huynh

[2023] VCC 954

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-23-00047, CR 23-00048

DIRECTOR OF PUBLIC PROSECUTIONS

v

QUOC HUYNH

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	3 May 2023
DATE OF SENTENCE:	5 June 2023
CASE MAY BE CITED AS:	DPP v Huynh
MEDIUM NEUTRAL CITATION:	[2023] VCC 954

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:   Plea of guilty – Aggravated carjacking – Knife – Intentionally cause injury – Custodial officer – Summary charges

Legislation Cited: s18 and s79A Crimes Act – s6AAA Sentencing Act 1991 (Vic)

Cases Cited:R v O'Brien and Gloster [1997] 2 VR 714 - Veen v The Queen (No.2) (1988) 164 CLR 465 - ran v The Queen [2012] 35 VR 484 - R v Howell [2007] 16 VR 349 - R v Verdins (2007) 16 VR 269 - Worboyes [2021] VSCA 169

Sentence:  Total effective sentence of five years imprisonment, non-parole period of three years imprisonment – Forfeiture order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Holmes	Ms Z. Gough
For the Accused	Mr S. Ranjit	Ms J. Hughes

HIS HONOUR:

1

This plea of Mr Huynh came before me on 3 May when Ms Holmes appeared on behalf of the Director and Mr Ranjit appeared on behalf Mr Huynh.  Today Ms Holmes appears remotely and

Ms Park, Mr Ranjit's instructor appears.

2Charge 1, on indictment no. N11278095 was a charge of aggravated carjacking.  The aggravation in the matter was the possession and injury by use of the offensive weapon, in this instance being a knife.  This is an offence under s79A of the Crimes Act 2022 for which the maximum penalty imposed is one of 25 years gaol, with a minimum non-parole period imposed pursuant to s10AD of three years.

3The circumstances involved Mr Huynh phoning for a taxi on 19 June 2022.  The car which came to pick him up ultimately was driven by the victim, Sachin Kumar, he was aged 25.  During the drive which began at 2.10 am, there was an argument about payment by Mr Huynh, which was made by credit card, but could not be effected. 

4When they got to Ardeer, the driver pulled up and said effectively no money then out you go.  At that stage, Mr Huynh became enraged and the circumstances as detailed in Exhibit C then took place.  That is, an argument ensured and it appears that on a number of occasions Mr Huynh has hit Mr Kumar and certainly has stabbed him on one occasion at least, after he had produced a knife.  As I said, Exhibit C shows these circumstances.  The stabbing itself is scary, when one looks at where the victim was stabbed. 

5In further preparation for this sentence I relooked at the CCTV to remind myself of the circumstances.  Not only is it scary, but it is in fact horrific.

6

Subsequently, an ambulance ultimately arrived. 

Mr Kumar was taken off to hospital.  The car had been by that time taken by Mr Huynh and it was apparently found later that day in an undamaged state.  He was arrested three days later as part of the investigation.

7Charge 2, involves an offence committed by him while on remand at Ravenhall. This occurred on 29 September 2022. The charge to which has been pleaded under the indictment is under s18 of the Crimes Act of intentionally cause injury.  The maximum penalty prescribed for that crime is 10 years imprisonment, but there is a mandatory six months' minimum period of gaol required pursuant to the provisions of s10AA(4).  There was no s10A submission made in this matter.

8I should say, both of these crimes are category 1 crimes.  The victim in Charge 2 was Mark Jones, who was a custodial officer.  The attack itself took place at 11 am and I will come back to those circumstances in due course.

9Mr Huynh also pleaded guilty to four summary charges.  Charge 4, a charge of unlicenced driving, which under the Road Safety Act s18 has a penalty of 20 penalty units and/or one months' gaol.

10Charge 5, drive in manner dangerous, which has pursuant to s64 of the Road Safety Act, a penalty of 240 penalty units.  Two years maximum gaol with a six month loss of licence.

11Charge 6 is possess controlled weapon, in this case it was a cricket bat, under s6 of the Control of Weapons Act. The penalty prescribed is 120 penalty units and/or one years' gaol.

12And the final charge is Charge 7, possess a prohibited weapon, which was the shiv used in the attack on Charge 2, which pursuant to s5AA of the Control of Weapons Act has a penalty of 240 penalty units and/or two years gaol.

13As to the impact on the victims.  Despite the dramatic nature of both of these videos, as far as one can gather upon the medical information filed both victims received minor physical injuries remarkably.  As I said, in regard to Mr Kumar, the size of the knife and manner in which it was wielded clearly presented the potential for a most serious situation.

14However, Exhibit G, which is the hospital notes tendered today shows as a result of that attack, which is an aggravating factor in the aggravated charge, resulted in a single stab wound. Indeed Mr Kumar left the hospital that night, albeit against medical advice. No victim impact statement has been filed.

15As to the second charge in regard to Mr Jones his victim impact statement is tendered as Exhibit B.  Tendered today were the hospital notes, Exhibit H, there were four superficial stabbing wounds, only two of those needed sutures, and according to the ambulance and the hospital no excessive bleeding caused.  There are a couple of abrasions.  But again Mr Jones was discharged that day.

16Insofar as Mr Jones’ victim impact statement, Exhibit B, it indicates that he has not been able to work from 29 September 2022, which is now eight months.  Reading his victim impact statement there seems to have been experienced by him a high emotional reaction which has apparently caused depression and anxiety.  There is no other information as to why he's been off work for such a time.  Clearly it is not on the basis of the physical injuries, however without more information one is unable to determine in attacks of this type, especially when you are carrying out this type of job, what sort of emotional impact can be rendered from such an attack.

17Apparently since the commission of Charge 2, Mr Huynh has been in solitary confinement.  Despite what appears to be valiant attempts by the defence instructing solicitor, Ms Park we have been unable to confirm for the purposes of the Court what will be the state of the continued incarceration in regard to this issue of solitary confinement.  I must say from the Court's point of view, it is particularly disappointing to receive such a lack of assistance from Corrections. 

18The sentencing aspect of such matters is obviously very important, not only in the interests of Mr Huynh but the interests of the community.  However, as I have said, and has been remarked upon by the learned prosecutor, I will sentence on the basis that I have no power insofar as the manner in which Mr Huynh serves his sentence.  I presume, if he continues to endure solitary confinement, such will be dealt with administratively by Corrections when his end date of sentence is determined.  Equally no doubt that will be taken into account when assessing his eligibility for parole.  But as I say, the Court is essentially in the dark due to the failure of Corrections to proffer any assistance.

19From the information obtained by Ms Park, Mr Huynh has been allocated to the Melaleuca Unit at Barwon Prison from 16 December last year, where apparently he is to remain in what they call the Olearaa managed unit, which I presume is the unit in which he is serving solitary.  The only further comment I can say upon this is should such information from Corrections, or my assumption as to how I should treat this matter, be incorrect, no doubt that may form grounds for an appropriate appeal.  But as I say, I am simply left in the dark on this matter.

20

Coming to the classification of the crimes.  Clearly, both are particularly serious, as indicated from the maximum penalty, Charge 1, 25 years, Charge 2, 10 years. Both are category 1 offences.  As is clear from the circumstances that I have described, Charge 1 is a very concerning crime.  It is an offence committed publicly against a taxi driver carrying out his duties.  Because the victim sought to seek payment and/or told Mr Huynh he was not prepared to take him further without payment. 

Mr Huynh clearly became enraged, leading to him using the knife.

21In regard to the charge there is obviously a need for discrimination as an aggravating carjacking itself, the carjacking aspect of it seems to me to be very low key in regard to this charge.  The real issue is the aggravating factor itself, being the offensive weapon and the use of it, which results in the maximum penalty being raised from 15 years to 25 years.

22As I said, the actions in the taxi are very concerning and indeed as I have described them, horrific.  They could well have resulted in Mr Huynh being across the road on a murder charge, fortunately for the victim that is not so, but clearly the real issue is putting that charge into appropriate perspective.

23As to Charge 2, clearly that's an offence committed against a prison officer, as a result of which the minimum period of imprisonment is impacted.  The reason behind the crime, which I initially thought may have been some grudge, from what was put is not so.  Mr Huynh apparently, when an altercation occurred in an adjoining yard, decided he wanted to get into that yard to assist a friend.  The actions shown on the CCTV are therefore quite deliberate, quite concerning and led to, when he could not get through to his friend, a random use of violence. This is even more remarkable when you consider that it was committed within a prison, where there was obviously a number of prison officers, and he was put under control, if I can use those words, within about 20 seconds.

24On the plea, Mr Ranjit accepted the seriousness of both these crimes.  He asked the Court to consider the commission of them in a setting of cognitive impairment, long term drug use and institutionalisation.

25The analysis of Mr Ranjit set out as well in written form in Exhibit 1, in particular at paragraphs 19-29 of Mr Ranjit's submission.  Insofar as Charge 1 in regard to the taxi he put, and I accept, that there was no pre-planning. You need no further proof of that than the fact that when he rang to book this taxi he gave his own phone number and he was able to be identified from that number.

26It becomes serious because of the aggravating factors.  As I said earlier, the fact of the stealing of a car is the minor part of the charge.

27Insofar as Charge 2 is concerned, I again accept Mr Ranjit's submission that this was not planned, although given the use of the shiv it is very difficult to understand and is most concerning. 

28One has to look at this offending in regard to both charges on top of what can only be described as the concerning priors of Mr Huynh.

29He had just got out of gaol on 17 May 2020, from a sentence imposed in this Court in June of 2016 for three armed robberies, three attempted armed robberies, a kidnap, a theft, and dangerous driving while being pursued by police, for which he had been sentenced to six years with a non-parole period of four years. 

30His earlier prior was in May 2010, again he spent a hundred and fifty days in gaol as a result of burglary, assault, possess dangerous prohibited weapons, possess heroin and a breach of a CCO.  Further in his career, that is criminal career, in April 2008, he was sentenced to a period of 12 months with a minimum of six months for robbery.  He has earlier offences for burglary and many, many offences for driving charges. 

31Unfortunately his priors make up some 21 pages of contact with the law from a time when he was a youth and was sentenced to a youth training centre.  First time he was gaoled was in 2007, when he was a young person then of the age of 19.

32I think correct analysis would indicate that despite the serious nature of his priors, as to actual violence they are limited.  However, insofar as these prior offences are concerned, they are important in this sentencing process.  Mr Huynh I point out to you that you are not in any way again punished by this Court for your prior offences.  However, your significant criminal antecedents are far from irrelevant.

33As was said by Charles JA, with whom the other two judges agreed, in the Court of Appeal in R v O'Brien and Gloster [1997] 2 VR 714, at 718:

'It is of course clear that no principle of sentencing requires that more severe sanctions be administered to those who persist in their criminal behaviour.  But an adverse criminal record may impact upon the sentencing process in a number of ways; for example, as an indicator of the offender's moral culpability, his prospects of rehabilitation, his dangerous propensity, and the community's need for protection and the increased importance of specific deterrence is a factor in sentencing, having regard to the failure of more moderate penalties as a means of deterrence…'

34In that same case, Charles JA went on to quote from the High Court decision of Veen v The Queen (No.2) (1988) 164 CLR 465, in particular at 477-478 where the Court said:

'...the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate of the gravity of the instant offence.  To do so would impose a fresh penalty for past offences.  The antecedent criminal history is relevant however to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law.  In the latter case, retribution, deterrence and protection of society, may all indicate that a more severe penalty is warranted.  It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders.'

35Unfortunately Mr Huynh, now being 35 and with the history that I have indicated, such illumination is such that the question of protection of the community must be to the forefront in this sentence.  See in particular, in this regard, s5(1)(b) and s5(1)(e), in addition to the other principles of course which are set out in s5 of the Sentencing Act.

36If I come now to the plea.

37Mr Ranjit in the written plea Exhibit 1 relied upon all limbs of Verdins.  Such submission requires 'a rigorous evaluation of the evidence'.  See Tran v The Queen [2012] 35 VR 484, at 490-491, [20]-[22] and further as is detailed in R v Howell [2007] 16 VR 349, [32], in any given case it is:

'…not so much the label to be applied to the offender's (psychiatric) condition, but whether and to what extent it can be shown to have affected the offender's mental capacity at the time of the offence or sentence.'

38As I indicated to Mr Ranjit during the plea, I consider the evidence of the Neuropsychologist Ms O'Meara is such that the submission fails in regard to limbs 1 to 4.  In this regard I refer in particular to pp14-16 of Exhibit 2, from which I shall read.  At paragraph 14, Ms O'Meara said this:

'Mr Huynh reported a history of chronic depression and anxiety…  Nevertheless, he denied numerous common symptoms of the disorders at the time of the assessment…and did not present as clinically depressed or anxious.  Furthermore, he reported and demonstrated some features that maybe indicative of a personality disorder, (including reported long standing irritability and aggressiveness, impulsiveness, lack of remorse, empathy and illicit behaviours) and warrant further exploration… he clearly meets criteria for a substance use disorder.'

39On the same page, Ms O'Meara noted that Mr Huynh demonstrated clear evidence of cognitive impairment.  At the bottom of p14 she said this:

'Mr Huynh would also be at risk of a substance related brain injury given his reported extensive polysubstance abuse from a young age and prior to completion of neuronal development.'

40On the next page she said at the top of p15:

'Although Mr Huynh endorsed moderate symptoms of depression and extremely severe symptoms of anxiety, on a formal questionnaire of mood, this was disparate with his

self-report and presentation during assessment and inconsistent with the nature of cognitive deficits on testing.  As such his current medical state is not considered to have had a significant acute impact on his current level of cognitive function.’

41Going then to an assessment of his cognitive state and as to their impact on his day-to-day life as called for by instructing solicitors, Ms O'Meara said this in paragraph 4, p15:

'The cognitive deficits apparent on the current neuropsychological assessment will have the following impact on Mr Huynh's everyday functioning, decision making and impulse control.  I note in particular that, he is likely to act impulsively, without first considering the consequences of his action, particularly when under a time pressure.'

42We come then to paragraph 5 at the bottom of that page, the relationship if any between the psychological conditions or cognitive impairment:

'It's likely that the cognitive deficit, apparent on the current assessment contributed to the offending behaviours to some degree.  Specifically his poor language or verbal intellectual skills and concrete reasoning would detrimentally impact on his ability to verbally negotiate situations and consider other perspectives, and the range of options available to him for resolving the situations.  In addition, he demonstrated difficulty with impulse control during the current assessment.'

43On p16 on the second paragraph, she says this:

'Given the nature of the offending, (explicitly taught as wrongful from a young age and with clear physical consequences for the victims), Mr Huynh's previous convictions for similar offences and his ability to learn and remember new information with repetition, he would have been aware of the wrongfulness and likely consequences of his actions.'

44She goes on in the next paragraph to say:

'In terms of other psychological or psychiatric conditions, while there may be a relationship between Mr Huynh's substance disorder and the offending but of course, he denies any substance offending in regard to the second offence.'

45I also note, which should be taken into account, the extensive long term and chronic drug addiction referred to by Ms Lechner, Clinical Psychologist in Exhibit 4, in particular at pp1 and p4 at the time of the offence.  And further her notation at p6, where she says this:

'He also impressed as being cognitively, socially and emotionally immature with a very limited capacity to engage in reflective and consequential thinking.

46At paragraph 4, in respect of these offences Mr Huynh stated that:

‘he asked the driver nicely to take him home and get paid at the other end.  He said that the driver insulted him by dropping him at another location.  Mr Huynh was abusing drugs at the time, that likely adversely impacted upon his judgement and decision making skills.'

47Hence I find that the principles 1-4 of Verdins, are not proven to have so impacted or affected his mental capacity at the time to the degree required.  In anticipation of such finding, Mr Ranjit was at pains to utilise both reports and in particular his client's low-cognition, impulsivity, low intellectual skills, which were impacted upon by his relapse into drug taking, as an explanation for the crimes.  I have no doubt about that, and I accept those matters explain how he was involved and why he reacted so amazingly in the circumstances.

48

I accept the relevance of principles 5 and 6 upon the evidence of

Ms O'Meara, in particular I refer to p7 as set out in Exhibit 2.  I also note in reading the earlier sentence of Judge Meredith, which was the last sentence passed in June 2016, that His Honour came to a similar conclusion in regard to the same submission.  See [106]-[108] in the sentence recorded in 2016 which bears only the reference [2016] VCC.

49In the plea Mr Ranjit referred to Mr Huynh's institutionalised background.  However, despite that he submitted there was some hope that the Court should look favourably to the future as to the potential for some rehabilitation from the fact that in the 14 months after his release from the last sentence, until he relapsed and went back onto drugs, he spent that period, which was somewhat remarkable given his history, without any further criminality.

50Mr Ranjit also notes the history, that there has been no drug taking since being in remand.  I do not in any way reject the instructions, but there is no independent proof in that regard. 

51Mr Ranjit also took me to the early plea in this matter.  Given the dates of commission, the pleas could not have been earlier.  It is appropriate for a discount to be given in the sentencing, given the indication of remorse, utilitarian benefit and the assistance to justice that the early plea proffers.

52I accept that while in remand, and certainly into the future, he has been impacted by the COVID restrictions.

53The principles of Worboyes [2021] VSCA 169, [39], as to enhanced and greater weight in mitigation to be given where a plea is effected where the pandemic has affected the justice system, need to be taken into account.

54It was submitted by Mr Ranjit, that I should find exceptional circumstances established under s16(3) of the Sentencing Act for the factors that he set out in Exhibit 1 at paragraph 42, so that there should not be pursuant to the provisions of the Sentencing Act full cumulation in regard to the sentence imposed on Charge 2.  He submitted that those factors should be sufficient to establish exceptional circumstances.  I do not accept that submission. 

55The major matter argued was the impact of totality. Totality is a matter that I have to take into account in both sentences. Such does not, I find, establish exceptional circumstances under s16(3). Nor do the totality of the factors relied upon.

56Finally, Mr Ranjit said in regard to Mr Huynh, that the sentence should not be a crushing sentence.

57

The prosecutor in reply submitted that the Court should be very concerned as to both charges, in particular the manner in which the knife and shiv were used respectively.  The prosecutor raised concern as to Mr Huynh’s uncontrolled behaviour and what appeared to be absolute rage in the first charge.  She did however concede that principles 5 and 6 of Verdins were appropriate, however on the basis of the neuropsychological report also submitted that the submission of

Mr Ramjeet as to principles 1-4 should be rejected on the basis of the material before the Court.

58The prosecutor further submitted that the 16(3) proposition, as to exceptional circumstances by Mr Ranjit should be rejected, albeit noting that totality was a matter which would need to be taken into account.

59Mr Huynh, I am sorry for the extent of these sentencing remarks, however these matters were all raised on your behalf and it has been necessary for the Court to take all of them into account.  I accept in particular the submission of Mr Ranjit, that I should do my best to ensure that the sentence I impose is not crushing as far as you are concerned.  Hopefully Mr Ranjit's submission that there is still a possibility of you rehabilitating yourself proves to be true.

60Given the circumstances in which I'm pronouncing this sentence where everyone is remote, it is not necessary for you to do anything else but remain in the position you are.

61In regard to the first charge on this indictment, you will be sentenced to imprisonment for three years.

62In regard to Charge 2, you will be sentenced to imprisonment for two years.

63I do not, as I have already expressed accept that the submission as to exceptional circumstances under s16(3) has been established. I intend to impose full cumulation and in doing so I have taken into account the principle of totality, and all of the other factors that I have spoken about, not the least the serious criminality involved in this matter.

64Imposing full cumulation makes a total effective sentence of five years.  I fix as the non-parole period to be served before you will be eligible for parole as a period of three years. 

65Insofar as the summary matters, Charge 4, I will impose a period of imprisonment of 14 days.

66Charge 5, a period of imprisonment of two months.

67Charge 6, a period of imprisonment of three months.

68Charge 7, a period of imprisonment of three months.

69All of those sentences will be served concurrently.

70Madam Prosecutor what's the current PSD?

71HIS HONOUR:  Three four six.  Thank you.

72MS HOLMES:  Yes.

73HIS HONOUR:  Pursuant to s18 I will declare that the period served on remand in this matter of 346 days be taken as service of this sentence and I direct that the declaration to that effect be entered in the records of this Court.

74Now, I have signed the forfeiture order as to the weapons and knives. 

75Pursuant to 6AAA it is somewhat difficult to comply with Parliament's requirements given the operation of s16(3) of the Sentencing Act and the multiple factors have I have referred to.  But doing as best as I can, the sentence Mr Huynh that would have been imposed, had you not pleaded guilty to both of these charges, would not have been five years with a minimum of three, but seven years with a minimum of four and a half.

76Either counsel, are there any matters that I have failed to refer to?

77MS HOLMES:  No, Your Honour.  I may have just missed this, but forfeiture and disposal orders, Your Honour.

78HIS HONOUR:  No, I've signed those.

79MS HOLMES:  You made those, yes good, sorry Your Honour.

80HIS HONOUR:  Yes.

81MS HOLMES:  I just missed that aspect of when I was listening so, I just wanted to double-check.

82HIS HONOUR:  Yes.

83MS HOLMES:  Thank you, Your Honour.

84HIS HONOUR:  Thank you.  Ms Park?

85COUNSEL:  Nothing further, Your Honour.

86HIS HONOUR:  All right.  Yes, well Mr Huynh good luck, it's a significant sentence you have got to serve but really you have got to do something about making sure when you come out, and I hope it is correct that you've been off the drugs, but you've got to stay off them, because you're no good on them.

87OFFENDER:  Thank you, Your Honour.

88HIS HONOUR:  All right.  Good luck.  Yes.

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