Director of Public Prosecutions v Huynh

[2019] VCC 1299

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02253

DIRECTOR OF PUBLIC PROSECUTIONS

v

XUAN BACH HUYNH

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JUDGE:	HIS HONOUR JUDGE SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	21 June 2019
DATE OF SENTENCE:	15 August 2019
CASE MAY BE CITED AS:	DPP v Huynh
MEDIUM NEUTRAL CITATION:	[2019] VCC 1299

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Duckett	OPP
For the Accused	Ms E. Anselma	Furstenberg Law

HIS HONOUR: 

1Xuan Bach Huynh, on 21 February 2019, a jury found you guilty of two charges of common law assault, one charge of threat to kill, one charge of sexual assault and two charges of rape. The maximum penalty for common law assault is five years' imprisonment. The maximum penalty for threat to kill is 10 years' imprisonment. The maximum penalty for sexual assault is 10 years' imprisonment. The maximum penalty for rape is 25 years' imprisonment. Pursuant to s.5(2)(g) of the Sentencing Act, a sentence of imprisonment for this offence is mandatory[1]. 

In order to protect the confidentiality and privacy of your victim, I will not be referring to any identifying details in my sentencing remarks. 

[1] It being a Category 2 offence as defined under the Sentencing Act

Circumstances of Offending

2Your offending took place on the evening of Saturday, 20 May 2017, leading into the early hours of Sunday, 21 May 2017.  As at that time, you resided in Keysborough with your wife and your 24-year-old daughter.  Your victim resided nearby with her husband and their 20-year-old son.  You and your victim had known each other for some 15 years through your association with her husband.  You and your victim shared a common Vietnamese community and culture.  In particular, your victim was close friends with your wife.  It was not unusual for you and your victim to share meals each week with your respective partners, nor was it unusual for you to attend social occasions within your community at your respective homes and various other friends' homes.  You were also friends on social media.

3Approximately 10 days before your offending, your victim's husband left Australia with their son to visit Vietnam.  You were aware of this. 

4On Saturday evening, 20 May 2017, you made arrangements to collect your victim from her address, to attend a karaoke party with all of your mutual friends at another address in Keysborough.  Whilst at that karaoke party, you consumed a quantity of full strength beer.  When later interviewed by police, you indicated that you had drunk a lot at the party.  Others at the party observed you to be drinking approximately six to 10 full strength beers.  In relation to your consumption of alcohol on this evening, you informed Professor Michael Daffern from Forensicare on 29 April 2019 that you had consumed a large quantity of alcohol at the party before departing with the victim[2]. 

[2] Paragraph 21 of Professor Daffern’s report.

5At about 11 pm, you left the party with your victim and two other males.  As the males, including yourself, had been drinking alcohol, your victim drove your vehicle, dropping the other occupants home before driving you home, parking your car in your garage, saying goodnight to you and then running home.  This was at approximately 11.30 pm.

6Your victim entered her house through the front door and went to her bedroom, before moving towards the shoe rack near the front door of her premises.  At this point she heard a noise that sounded like the security door.  You then entered your victim's property through the front door.  You then pushed her onto the couch.  When she told you to get off her, you laughed and told her that you would make her happy. 

7After pushing your victim onto the couch, a struggle ensued and at one point your victim's head hit the coffee table, damaging it. Your victim started screaming at which point you held her by the throat, and said you wanted to make her happy.  It is this conduct which forms the basis of Charge 2 on the indictment, common law assault.  As the struggle continued, with you on top of your victim so that she could not move away from you, you informed her that you wanted to have sex with her.  When she brought up your wife, you replied that you did not care about your wife or her husband, and this did not dissuade you, nor did her request to be permitted to go to the toilet. You then started to pull up your victim's top and sexually assaulted her by licking, sucking and biting her nipples.  Your conduct in this regard forms the basis of Charge 4 on the indictment, sexual assault.  When your victim cried for help, you laughed and said, 'Stop screaming otherwise I'll kill you.  No one can help you.  Don't scream anymore'.  Your conduct in that regard forms the basis of Charge 3 on the indictment, threat to kill.  As the struggle continued, you managed to pull off her pants.  You then penetrated her vagina with her fingers.  Your conduct in that regard forms the basis of Charge 6 on the indictment, rape. As your victim continued to indicate to you that she did not wish this activity to take place, at one point you got your hand over her mouth and squeezed her throat saying, 'Stop calling, stop.  No one can help you, no one can help you'.  Your conduct in that regard forms the basis of Charge 5 on the indictment, common law assault.  At some point after you had penetrated her vagina with your fingers, you again returned to this activity by again penetrating her vagina with your fingers.  But this time, however, you filmed your actions with your mobile phone.  Your conduct in this regard forms the basis of Charge 8 on the indictment, rape. In evidence before the jury, your victim indicated that whilst this final rape was taking place, she could see the flashing from the camera and observed you to be laughing[3].  The ordeal for her finally ended when you removed your hand from her vagina and she ran to the toilet, locking herself in.

[3] Page 142 of the trial transcript

8The following morning, after your victim had disclosed details of the offending to various people, the police were contacted, and you were ultimately arrested and charged by police.

Victim Impact Statement

9On 21 June 2019, the prosecution tendered a victim impact statement, affirmed by the victim on 11 June 2019.  That statement was read during the course of the hearing on 21 June 2019.  In her victim impact statement, the victim clearly explains the impact that your crimes have had on her, both physically and emotionally.  She indicates that she is still affected by the crimes physically.  She has headaches and difficulty sleeping.  She referred to the impact of the offending on her and her group of friends, many of whom share social networks with you and your family. She indicated that,

'Many of them became witnesses for this court.  I am embarrassed now that these friends know about what happened.  I want to hide from my friends.  I don't want to see them.  It is very hard for me to tell them how I feel.  They don't understand what I have been through.  Losing my friends has been a big loss in my social life.  I haven't spoken to them for years.  If I do see them it brings back the memory of what has happened'. 

10The victim also referred to the fact that your house is situated near her own,  'So every time I go past his house what happened to me comes into my mind'. She also spoke of the impact of the court process on her stress levels.  In particular, she referred to the numerous occasion upon which the court date had changed as causing her much stress.  I note in that regard the protracted nature of the criminal proceedings in your case, including an adjournment of the first trial listing on 23 April 2018 following failed resolution discussions.  Having observed your victim giving evidence at your trial, it was evident to me that she found the process of describing in detail your offending caused her considerable embarrassment, shame and distress. 

11I have carefully considered the victim impact statement tendered on 21 June 2019, and have taken it into consideration in constructing an appropriate sentence in your case. 

Nature and Gravity of the Offending and Your Role In It

12The offending for which you now fall to be sentenced represents extremely serious criminality. 

13You knew your victim in this matter, a physically diminutive woman who lived close to your residence.  Having been in her company at the party earlier on the evening of Saturday 20 May 2017, you knew that her husband and son were away, leaving her alone in her premises. 

14Having consumed a large quantity of alcohol and being driven home by your victim, you attended upon her home later at night and offended against her in the sanctity of her own home.

15Whilst the duration of your offending was not specified, it is clear from the evidence and the jury's verdict that you engaged in sustained and determined criminality.  The crimes of sexual assault and rape are inherently violent offences.  In particular, your crimes of rape involved an invasion of your vulnerable victim's personal autonomy.  In addition to the inherently violent nature of the crimes of rape and sexual assault, your criminality involved additional violence against your victim, in the form of grabbing her throat and later squeezing her throat, the common law assault charges. When faced with opposition from your victim, you threatened to kill her. 

16When you raped your victim on the second occasion, by penetrating your victim's vagina with your fingers, you filmed this activity, and your victim was aware of this.  I note also that you were observed by your victim on occasions during this ordeal to be laughing.  I regard your demeanour as observed by your victim, coupled with your filming of the second rape, to be aggravating circumstances, accentuating the overall gravity of your criminal conduct on this evening.

17This ordeal must surely have been a terrifying ordeal for your victim.  Your conduct in relation to your victim represents a shameful disregard for her wishes and feelings.  The prosecution submitted that your overall offending in relation to this incident reflects a level of seriousness between the mid and high level.  During the course of plea submissions, your counsel accepted that your conduct represents a serious, significant and nasty example of rape.  For all the reasons that I have just outlined, it is my view that your conduct on the evening represents significant and serious examples of the crimes for which you have been found guilty. 

18I also note from the report dated 21 May 2019 of Professor Michael Daffern from Forensicare that there is no suggestion of any reduction in your moral culpability for your offending on the basis of any mental impairment. 

Personal Circumstances

19You are the second of three children born to your parents, both of whom are now deceased - your father died in 2001 and your mother died in 2017.  You are currently 51 years of age.  You were born in Saigon in 1968.  Whilst you have described your early childhood positively, your father worked for the South Vietnamese forces during the Vietnam war, and falling the fall of Saigon, he was apprehended and sentenced to 10 years in prison, being released in 1981.  Following that, he fled to Australia.  Understandably, you have described the period of your father's imprisonment as the beginning of a difficult time for your family and yourself. Your father was imprisoned in the north of Vietnam, and you were unable to see him during this period of imprisonment.  You were in fact unable to see your father from 1975 until 1989. 

20You struggled in school, and were upset with the loss of your father.  Your mother remarried in 1981 which caused you additional stress. 

21In relation to your schooling, you described to Professor Daffern being teased at school due to your father's association with American armed services, and your educational attainment was therefore compromised. You ultimately completed year nine but at the start of year 10, in 1982, you attempted to escape Vietnam with your sister, during which time your sister was shot and hospitalised and you were captured and imprisoned.  You attempted to escape one week later, but you were recaptured and, at the age of 14 or 15, imprisoned for a period of 12 months.  In 1988, at the age of 20, you successfully escaped Vietnam with your brother, sister and grandparents, travelling to Malaysia where you remained for one year before arriving in Melbourne in 1989.  Your mother followed in 1996 with her new husband.

22In terms of your life in Australia, you lived with family and friends, initially in Richmond before purchasing a house in 1997.  To your credit, you have been consistently employed in Australia.  After commencing a motor vehicle mechanics course, you obtained employment in the Holden factory, where you remained for some five or six years, before obtaining employment in the spare parts factory at Holden, where you remained for an additional two years.  You have subsequently worked in various factories and more recently in a warehouse in Dandenong until the time of your incarceration.

23You met your wife in 1992.  This was your first intimate relationship.  She was then living in Australia on a temporary visa, but was deported in 1993 due to some disclosure issues with the Australian authorities.  Your relationship with your future wife continued, notwithstanding the obvious geographical difficulties.  You were married in 1994 and your daughter was born in 1995.  Following a protracted visa application process, your wife was finally able to migrate to Australia in 2002.  As at the time of your offending, you were residing with your wife and daughter in the same neighbourhood as your victim.

24Notwithstanding your 30 years in Australia, you do not have any prior convictions.  This is clearly a matter standing to your credit. 

25Professor Daffern, in his report dated 21 May 2019, did not diagnose you with any mental impairment related issues or any drug or alcohol problems.  He noted, however, your use of alcohol since arriving in Australia, and referred to your regular use of alcohol, consuming a large quantity of beer at social events, most Saturdays.  Professor Daffern referred to your self-report that:

'His alcohol consumption has increased during the last few years and on occasions he has suffered from memory loss as a consequence of intoxication'[4].

[4] Paragraph 20 of Professor Daffern’s report

Whilst I regard your reported use of alcohol as concerning, given the absence of any diagnosis from Professor Daffern, I am unable to make any finding as to the impact or otherwise of alcohol on your criminal offending. 

26As indicated by Professor Daffern[5], you have maintained a denial of the offending for which you now fall to be sentenced.  According to Professor Daffern it is often the case:

'That people who have committed sexual offences are unwilling to fully disclose details of their sexual history and acknowledge responsibility for their offending prior to sentencing for fear that disclosure might aggravate a sentence'.

[5] Paragraph 7 of Professor Daffern’s report

Professor Daffern recommends that you be assessed by the Specialised Offender Assessment and Treatment Service or SOATS in order for your sexual offence history to be re-examined and for an appropriate determination in relation to your treatment needs in that regard.  Professor Daffern concludes that on the information available to him, you present as a low risk of sexual reoffending. 

27You have been in custody since 21 May 2017, a period exceeding two years.  In that time you have had limited visits from family.  I was informed that on one occasion, your niece and her husband had visited, and you have had one occasion of telephone contact with your wife for the purposes of facilitating a divorce. Perhaps unsurprisingly, your daughter has ceased contact with you.  Given your inability to speak English, you have had difficulty communicating with many of your fellow prisoners, and I am satisfied that your time in prison has no doubt been particularly onerous for you, given these matters which have contributed to your isolation.  I was informed that you have been working - you had been working as a billet in mainstream, but have been assaulted on two occasions, resulting in your transfer temporarily to protection.  Whilst you have now been returned to mainstream, to date you have not been able to resume employment, which has exacerbated your feelings of isolation whilst in custody. 

Sentencing Factors

28In formulating an appropriate sentence in your case, I have had regard to the factors set out in s.5(2) of the Sentencing Act. 

29I have had regard to the maximum penalties prescribed for the offences for which you have been found guilty, as outlined at the commencement of my sentencing remarks. 

30I have taken into consideration the nature and gravity of your offending, and your culpability and degree of responsibility for it.  I refer to my earlier sentencing remarks in that regard. 

31I have had regard to the impact of your offending on your victim, and I refer to my earlier sentencing remarks in that regard.

32I have had regard to the fact that you pleaded not guilty to these charges, and you apparently maintain a denial of any wrongdoing.  Whilst you certainly do not, through your pleas of not guilty, attract any punishment, the absence on your part of a plea of guilty precludes any mitigatory allowance on the basis of any utilitarian benefit to the community, or on the basis of remorse. 

33I have had regard to your prior character, noting again the absence of any prior convictions on your part.  I have also taken into consideration your most difficult upbringing and personal circumstances, together with your difficulties and isolation whilst in custody to date.

34I turn now to the issue of current sentencing practices.  During sentencing submissions before me on 21 June 2019, Ms Duckett, who appeared for the Director of Public Prosecutions helpfully provided a number of decisions, all of which I have had regard to.  The DPP v Pthwang Za Lian and Kaplin Thang Hlawnceu [2019] VSC 75, Anjan Schrestha v The Queen [2017] VSCA 364, Tuan Anh Cao v The Queen [2018] VSCA 98 and Ye Zhao v The Queen [2018] VSCA 267. These cases primarily concerned sentencing in relation to the most serious offence for which you fall to be sentenced, that of rape. In the most recent decision of Lian and Hlawnceu, the Court of Appeal embarked on an extensive analysis of current sentencing practices and relevant principles in relation to sentencing for the crime of rape. That case involved a rape in company with particularly aggravating circumstances.  In a joint judgment, the court reinforced that,

'Rape must always be regarded as a very serious offence. The maximum sentence available for rape, 25 years' imprisonment, makes the gravity of that offence perfectly clear.’[6] 

[6] Paragraph [52] of that decision

35Further the court commented as follows,

'The main factors to which a sentencing judge must have regard, when dealing with an offence of rape of this kind, are denunciation, and deterrence.  That will ordinarily include both general and specific deterrence.  In general, the protection of the community will take precedence, as a sentencing factor over rehabilitative concerns. The public must be left in no doubt that, when an offender behaves in this manner, he will receive condign punishment.”[7] 

[7] Paragraph [59]

36At paragraph [70] of that decision, the court set out a number of factors which will ordinarily be relevant when assessing the gravity of any particular offence of rape, many of which I have referred to in my sentencing remarks. 

37The court referred to the earlier decision of Schrestha to which I have cited, where the court there indicated that there should be an upward adjustment in sentences for offences of digital rape committed in circumstances broadly similar in objective gravity to the offending in Schrestha, which was described as an upper mid-level example of the offence[8].

[8] Paragraph [82] Hlawnceu

38After conducting an analysis of recent decisions of the Court of Appeal in relation to sentencing for rape, the court indicated that:

'…sentences of eight years' imprisonment, after a trial have not been uncommon.  There are also a number of instances where sentences, both after a plea of guilty and after a trial, of either six or seven years' imprisonment, have been held by this court to be within range'[9].

[9] Paragraph [97] Hlawnceu

39The court reaffirmed the position since the High Court decision of Dalgliesh[10], that while s.5(2)(b) of the Sentencing Act provides that current sentencing practices are relevant to the determination of a sentence in each case, nevertheless that factor is but one of a number of matters that must be taken into account in determining the appropriate sentence to be imposed in the particular case.  Furthermore in promoting consistency of sentences, the consistency that is sought to be achieved is in the application of relevant legal principles rather than some mathematical equivalence of sentences[11]. Bearing that cautionary note in mind, I have nevertheless had regard to the authorities provided to me by the prosecution in the context of having regard to current sentencing practices in the formulation of an appropriate sentence in your case.

[10] [2017] 349 ALR 37

[11] Paragraph [91] of Hlawnceu

Sentencing Purposes 

40In formulating an appropriate sentence in your case, I have had regard to the sentencing purposes set out s.5(1) of the Sentencing Act.  As highlighted in the decision of Hlawnceu, the sentencing principles of denunciation and deterrence are prominent sentencing purposes in relation to your offending. Given your ongoing denial of wrongdoing in relation to your victim, both general and specific deterrence are relevant sentencing purposes in your case.  Protection of the community is also an important purpose.  In that regard, I have had regard to the opinion of Professor Daffern that you represent a low risk of sexual offending, though this must be tempered, in my view, with Professor Daffern's comment that:

41'reassessment by the Specialised Offender Assessment and Treatment Service would, however, confirm this assessment, in light of (possibly) more frank disclosure of his offending behaviour'[12]. Facilitating your rehabilitation is another appropriate sentencing purpose.  In your case, it is difficult to ascertain your prospects of rehabilitation, particularly given your ongoing denial of the offending.  Professor Daffern recommends further assessment in relation to your sexual offence history and treatment needs, and he also recommends intervention in relation to your problems with alcohol abuse[13].  Nevertheless, you fall to be sentenced with a complete absence of any prior criminal history.  I regard your rehabilitative prospects as reasonable but somewhat speculative in the circumstances.

[12] Paragraph 23 of that report

[13] Paragraph 24

Cumulation and Totality

42It was submitted on your behalf that your offending represents a single episode.  Nevertheless, as I have already stated your offending represents sustained and determined conduct.  Your violation of your victim involved separate and discrete criminal acts of grabbing her throat, threatening to kill her, sucking, licking and biting her nipples, squeezing her throat and twice penetrating her vagina with your fingers.  A degree of cumulation is therefore required to adequately reflect the gravity of your criminality.  Furthermore, you fall to be sentenced in relation to Charge 8, the second rape charge, as a serious sexual offender pursuant to the Sentencing Act. Pursuant to s.6D of the Sentencing Act, I must regard the protection of the community from you as the principle purpose for which a sentence is imposed in relation to Charge 8. Pursuant to s.6E of the Sentencing Act, there is a presumption of cumulation in relation to sentencing for Charge 8.

43Pursuant to s.6F of the Sentencing Act, in relation to Charge 8 I direct that the fact that you are to be sentenced as a serious offender be entered into the records of the court. 

44In formulating an appropriate sentence in your case, I have also had regard to the totality principle, that is, the need to ensure that the total sentence remains just and appropriate for the entirety of the offending.

Sentence to be Imposed

45Mr Huynh would you please stand.  On Charge 2 of common law assault, you are convicted and sentenced to 15 months' imprisonment. 

46On Charge 3 of threat to kill, you are convicted and sentenced to two years' imprisonment. 

47On Charge 4 of sexual assault, you are convicted and sentenced to three years' imprisonment. 

48On Charge 5, common law assault, you are convicted and sentenced to 20 months' imprisonment. 

49On Charge 6 of rape, you are convicted and sentenced to five years and six months' imprisonment. 

50On Charge 8 of rape, you are convicted and sentenced to six years' imprisonment.  This is the base sentence.

51I direct that two months on Charge 2, three months on Charge 3, four months on Charge 4, three months on Charge 5 and eight months on Charge 6 be served cumulatively on each other and on the sentence imposed on Charge 8, making a total effective sentence of seven years and eight months.  I order that you serve a period of five years and three months before becoming eligible for parole. 

52Pursuant to s.18 of the Sentencing Act, I declare 816 days as the period of imprisonment already served on this sentence. 

Sex Offenders Registration Act 2004 Order

53As you have been found guilty of a sexual assault offence and two rape offences, pursuant to the provisions of the Sex Offenders Registration Act you are subject to reporting requirements for life.

54Finally, I will make the disposal order sought in relation to the mobile telephone used in the offending.  I will now ask my associate, Mr Lavery to attend at the back of the court to provide Mr Huynh with the relevant documentation regarding the reporting requirements for Mr Huynh to sign an acknowledgment of receipt.  Ms Duckett, whilst that is happening, are there any issues in relation to the maths or anything else in relation to the sentence?

55MS DUCKETT:  No, Your Honour. 

56HIS HONOUR:  Yes.  Ms Anselma, anything to say in relation to ‑ ‑ ‑

57MS ANSELMA:  No, Your Honour.

58HIS HONOUR:  No, thanks.  Yes, thank you.  Mr Huynh can be removed, thank you.  Thank you Madam Interpreter for your assistance this morning.

59INTERPRETER:  Thank you.

60HIS HONOUR:  Yes, thanks, (indistinct words).

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