Director of Public Prosecutions v Huynh

[2019] VCC 849

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-01795

DIRECTOR OF PUBLIC PROSECUTIONS

v

LOUIS HUYNH

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 June 2019
CASE MAY BE CITED AS:	DPP v Huynh
MEDIUM NEUTRAL CITATION:	[2019] VCC 849

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr C. Liaskos
For the Accused	Miss K. Blair

HER HONOUR:

1Louis John Huynh, you have pleaded guilty before me to one charge of intentionally causing serious injury in circumstances of gross violence, one charge of false imprisonment, one charge of theft and one charge of kidnapping.  The facts underlying this offending are as follows.

2The victim, Mehye Toff, was your landlord.  He lived in rented premises at
2 Linda Street, St Albans.  In 2016 he had open heart surgery and was on Warfarin medication.  He lived at the premises initially by himself but by late 2017 was finding it difficult to pay rent and so decided to get someone in to share the house with him.  A friend at a local shop put him in contact with you and you moved into that house at 2 Linda Street a few weeks before the offences.  The arrangement was that you pay $500 a month for rent.

3This arrangement did not work out as apparently you brought people home late at night, disturbed Mr Toff, ate his food and he believed you were on drugs.  He asked you to find alternative accommodation.  You, however, failed to move out and he offered you $600 to leave.

4On the afternoon of 20 November 2017, when Mr Toff returned home from the shops, he was set upon by you and two other men as he entered the house.  The three of you punched and kicked him and as a result of blows to his mouth his top dentures were damaged.  You asked Mr Toff for his keys, money and wallet and took his mobile phone from the kitchen bench.  You then put a rope around his neck which you pulled tight so that Mr Toff struggled to breath.  One of the other men struck him with a sharp implement to his liver area and Mr Toff fell to the ground.

5Whilst on the ground the three of you savagely and repeatedly kicked him, and throughout the attack told Mr Toff that you were going to kill him.  The three of you then put tape over Mr Toff's mouth, bound his wrists and lower legs with rope, put a hood over his head and then threw him into the rear of his van.  You then drove the van for about an hour along a freeway before stopping in a bush area whilst the other two men followed in a four wheel drive.

6Once stopping in the bush area the three of you got Mr Toff out the van and repeatedly kicked him all over his body.  You got his bank card and asked for his pin, but because of the stress he was under he was unable to deliver the correct number.  After testing the card on a device they had, which showed that Mr Toff had given you the incorrect pin, you continued to beat him, demanding the correct pin, but Mr Toff was unable to remember it.

7You then took $300 from his wallet.  You also took the tape off his mouth and forced him to drink turpentine from a bottle, which was taken from the back of the van.  The tape was then re-applied to his mouth.  After about half an hour Mr Toff was put back into the car and the three of you left in the four wheel drive, leaving him alone in that van overnight with his wrists and legs bound and a hood over his head.  His mouth was taped and he struggled to breath throughout the night and the following day.  You also left him there without any water.

8You all returned the following day at which time you said to Mr Toff, 'Are you still alive?'  The three of you then drove back to the house at Linda Street, where Mr Toff was dragged into a bedroom.  There the rope was cut.  Mr Toff did not have the strength to scream but begged for water.  You put a bottle of mineral water in the room but did not take the lid off and Mr Toff was unable to open it for himself.  After about an hour you opened the bottle then left the premises, leaving Mr Toff lying on the floor unable to get up.

9Later that day at about 5.24 pm, you telephoned an associate whose own telephone was being lawfully intercepted by police officers conducting a drug operation on that person.  During the call you said to the associate,

'Something came up, me and my landlord had a falling out.  I fell out with my landlord and tied him up.  I'm at my landlords, I'm good.  He is lying in my room.  Well, his room now.  He needs help so good luck to him, made him not so easy to function.  Come to Linda Street, the blue fence'.

10As a result of the call police attended at 2 Linda Street, St Albans, just after 7.30 pm, where they found Mr Toff lying on the floor in a bedroom, apparently in pain with injuries to his chest, face and arms.  He was taken by ambulance to the Royal Melbourne Hospital for treatment.

11Mr Toff was initially treated in the intensive care at the Royal Melbourne Hospital for six days and was then discharged to a general ward, where he remained until 15 December 2017.  An assessment at the hospital revealed he had suffered rib fractures on his right-hand side, pneumothorax, a haematoma to his left-forehead, rhabdomyolysis, bilateral hand lacerations and ligature marks around his wrists and lower-legs.  As a result of the rib fractures and associated pneumothorax, Mr Toff had suffered respiratory failure and required ventilation in the intensive care unit.

12On 28 November 2017, Mr Toff was also examined by Dr Quidgley from the Victorian Institute of Forensic Medicine.  She noted boggy swelling on the right side of the back of Mr Toff's head, as well as bruises over the right and left eyelids and bruising on the right side of the jaw, as well as many bruises and abrasions on his chest, abdomen, back and upper and lower limbs, all of which were likely to have been caused by blunt trauma.  Also noted were four scabbed linear abrasions to the right side of Mr Toff's chest, which Dr Quidgley believed were likely to have been caused by an object with a sharp, narrow edge.

13You were arrested on 30 November at a house in St Albans where you were hiding in a bedroom cupboard.  You were taken to the Sunshine police station where in a record of interview you denied knowing anything about the assault that occurred on 20 November and told police that you did not think you had been to an address in Linda Street.  You denied causing injuries to Mr Toff and later in that record of interview said that whilst that name sounded familiar with you and you may have lived with him you were not sure as you could not remember where you had been staying.  You said you had no idea why Mr Toff would be alleging that you had assaulted him.

14The maximum penalty for causing serious injury intentionally in circumstances of gross imprisonment is 20 years' imprisonment.  Section 10 of the
Sentencing Act requires that in sentencing for this offence the court must set a non-parole of not less than four years, unless there are special circumstances.  It does not seem that such circumstances have been argued in your case.  The maximum penalty for false imprisonment is 10 years' imprisonment.  The maximum penalty for kidnapping is 25 years' imprisonment and the maximum penalty for theft is 10 years' imprisonment.

15On 25 September 2003, you were sentenced to a term of imprisonment for intentionally causing serious injury.  Therefore you are to be sentenced as a serious violent offender in respect of Charge 1 on the indictment.  You have remained in custody since 30 November 2017.

16At the time of this offending you had been placed on a Drug Treatment Order, which carried with it an 18-month sentence of imprisonment, which was restored by the Magistrates' Court on 13 December 2017 and you were ordered to serve the unexpired portion of that sentence, which was 471 days.

17The theft, which relates to theft of Mr Toff's car, means that pursuant to s.89A of the Sentencing Act I must disqualify any driver’s licence that you hold.

18A victim impact statement was received from Mr Toff by way of a sworn statement on 17 September 2018.  It made for distressing reading.  Mr Toff clearly continues to suffer enormous emotional trauma as a result of the assault that you unleashed upon him.  He has difficulties sleeping.  He is still in considerable pain.  He is unable to sleep on his side because of the pain that he still suffers from his ribs.  He has intestinal difficulties, which he attributes to the forced swallowing of turpentine, but it would appear may have been caused by measures taken whilst he was hospitalised for almost a month following your attack upon him.  He has been unable to work since the incident.  He has no power in his right hand or arm.  He has difficulties with his left leg.  He is financial difficulties now because he is unable to work or support himself.  He lost tools and items in the car, which it was stolen and on which he did not have insurance.  He stated,

'I am so hurt and so sick.  I want to go back to Romania but I cannot.  I am disabled and not able to work and people there will laugh at me.  That's why I'm suffering over depression, it so hard for me.  I am unable to do anything.  I have two children, how am I able to help them?'

19He said he does not feel safe when he goes out.  He does not know when his fear will cease.  He sees a psychologist on a weekly basis.  He concluded,

'What I really think is that one day they will come and kill me.  Especially this main criminal because he threatened me one week prior to the incident and look what happened now.  That is why I am so scared that one day I will be dead.  It is a miracle that I am still alive'.

20I now turn to your personal circumstances.  You are now 37 years of age, you were born in Carlton and until you were five grew up in the housing commission flats with your parents and younger sister.  Your mother is Australian and your father Vietnamese.  The family then moved to Laverton.  When you were 12 your mother moved to Sydney with another man and this appears to be a major traumatic event in your life, although in the numerous psychological reports that I have received you do not seem to attribute much significance to it.  Thereafter you only saw her on school holidays and any meaningful relationship with her ceased.

21You were left with your father and younger sister.  Within a year you had left home and then began many years of homelessness.  You, thereafter, essentially couch surfed, although you managed to remain at school.  You attended the Footscray City Highschool and stayed at school until Year 11, although you did not complete it.  Unsurprisingly you soon began smoking marijuana, drinking alcohol and at the age of 15 began using ice.

22You told psychologist Alison Maynard, whose report was tendered on the plea, that essentially you turned to drugs to numb the feelings that you were experiencing as a young, unsupported and homeless teenager.  Also unsurprisingly you began offending in your teens and by the age of 17 were placed in a youth justice centre, which put an end to your schooling.

23You have appeared before the courts on a regular basis since the late 1990s and have a long and serious criminal history with convictions and sentences for theft, robbery, possessing a dangerous article and escape from a youth training centre.  In 2003 you were gaoled for nine years, with a minimum term of
six years, for intentionally causing serious injury and robbery in an altercation with a victim who ultimately loss an eye as a result of the assault that you unleashed upon him.  You were then only 21 years old.

24There then appears a ten year gap in your offending.  On your release from prison in 2008 you obtained work on construction at a temple for two and a half years, but were unable to be registered with the Master Builders Association because of your criminal history, which according to Ms Maynard you found very distressing.

25You then began a handyman business which flourished for several years.  In 2009 you married and your son, Leo, was born in 2010.  However, your business began to fail and eventually you had to sell your tools in order to pay for registration and other bills.  You then began gambling to make more money, but of course lost that money instead.  You told Ms Maynard you began staying away from home because you were ashamed of your inability to financially support your wife and child.  You hid your gambling problem from your wife and began using ice again in order to give you more energy to work.  Eventually the relationship, unsurprisingly, broke down.  Your wife left and you last saw your son about two years ago.  You told Ms Maynard that you suffer enormous guilt and sadness over you inability to support your son.

26You became homeless again.  Your ice use spiralled.  You also started using heroin whenever you could get it.  Again, unsurprisingly, the offending resumed.  In July 2016 you were sentenced for shoplifts and drug offences, and negligently dealing with the proceeds of crime and possessing a disguise with unlawful intent.

27Your life continued on in much the same way after your release.  On
10 May 2017 you were sentenced to three months imprisonment on a consolidation of charges, including criminal damage, unlawful assault, retention of stolen goods, obtaining property by deception, theft from motor vehicle, two motor vehicle thefts, possessing a controlled weapon, negligently dealing with the proceeds of crime, dealing with suspected proceeds of crime and of course possession of methylamphetamine.

28On 4 October 2017 you were placed on a Drug Treatment Order in relation to charges of dishonestly retaining stolen goods, driving whilst disqualified, being a prohibited person in possession of a firearm, unlawful possession of ammunition, possession of ice, trafficking in ice and possessing Buprenorphine.  Your last sentence was seven days' imprisonment, presumably for failing to abide with the conditions of your Drug Treatment Order.

29As I have said, on 13 December 2017 you were dealt with for breach of the Drug Treatment Order and ordered to serve the remainder of the unexpired portion of the 18-month sentence that attached the Drug Treatment Order.  In fact you were on that order at the time of this offending.

30Your relapse into drug use involved smoking ice daily, using heroin when you could get it and also abusing alcohol.  You told Ms Maynard that you often blacked out when you drank alcohol and your protracted ice use has led to paranoid episodes, where you believed there were listening devices in your roof and that friends were talking about you or trying to set traps for you.  You said that you were hyper vigilant and when out in the community slept with a gun beside your bed.  Many of your friends have been attacked or died of drug overdose.

31You made, I am satisfied, a creditable attempt to change your life around, but that did not work and you have relapsed back into this spiral of incredibly serious substance abuse related offending, and this has ultimately led to the very serious charges this court must deal with today.  I am instructed that whilst you committed those offences upon Mr Toff you were heavily under the influence of both methylamphetamine and alcohol.

32Psychological testing by Ms Maynard revealed that you have many symptoms which are consistent with a post-traumatic stress disorder, although you do not entirely fulfil the diagnostic criteria for this condition.

33That testing also revealed that you have severe anxiety, stress and extreme depression.  Testing by a neuropsychologist, Martin Jackson, revealed that you have all your life suffered from a very specific language based learning difficulty, which affects your verbal working memory and your verbal executive skills.

34Ms Maynard at one stage seemed to suggest that you might also suffer from a schizoid personality disorder and/or autism, although she did say that further investigation did not entirely bear that.  However, I ordered a Forensicare report in order for that to be explored.  In his report, psychologist Professor Michael Daffern did not believe that you suffered from either disorder, but did believe that you had unsurprisingly over the years developed an antisocial personality disorder and he thought you did have some features of a schizoid personality disorder.  Clearly also, and totally unsurprisingly, you fulfil the diagnostic criteria, that is all the features of a Substance Abuse Disorder.

35You have been held at Marngoneet Prison where you have received some therapeutic treatment, which you told Ms Maynard has been helpful for you.  You have undergone, I am satisfied, every program that you could possibly do.  I received a bundle of certificates attesting to what work you have been doing.  You have undertaken a successful Conversations and Listening Program, you have undertaken an Imaginative Emotions Program and Managing Worry Program.  You have undertaken a Financial Education Program, a Managing Sleep Program, a Coping with Change Program, a Release Related Harm Reduction Program, a Successful Conversation Speaking Program, a six-hour Alcohol and Drugs and Depression Program.  You have received a Certificate of Appreciation for participating in the Good Friday Appeal Fun Run in April of this year.

36I am satisfied you have used your time there as productively as you can.  I also note that you work as a prison support facilitator, that is you attend programs and support other prisoners who are attending those programs.

37I also received a letter from you, addressed to your victim, which I am satisfied is genuine.  The court is always a bit worried when it receives letters from accused persons.  They can often be self-serving and not helpful.  But I am satisfied that this is a genuine letter of apology.  You begin saying,

'These are no words that may offer much immediate comfort to you today here in court.  Being in this environment and seeing me again will no doubt bring back many frightening memories, but it is my genuine hope that what I say will give a sense of peace, security and confidence to be able to start to rebuild your life'.

38You conclude by outlining the programs that you have undertaken in gaol.  You describe your attack as terrible, you talk about tormenting Mr Toff.  You say,

'The attack was without any just cause.  My actions were cruel and senseless and left you not only with horrific physical injuries, but traumatic emotional wounds that may have lifelong consequences for you'.

39Your family situation is not particularly good; you had a falling out with your sister more than 10 years ago and you have sporadic contact with your father.  You have been diagnosed also with a major depression.  Ms Maynard said of you,

'My Huynh's major depression, with a very strong theme of rejection and shame in his life has led to Mr Huynh to be socially isolated, lack trust in others and overreact significantly in situations where he's rejected by others or disappointed.  In addition, he rarely shows his emotion because he finds it hard to trust others with any vulnerability and then his aggression is difficult to control when his emotions become overwhelming'.

40I am reading that out as much for your benefit as anything else.  It is very important, Mr Huynh, that you gain some understanding of what underlies your extensive and horrific drug use.  I accept that your life took an appalling turn for the worse when your mother left your home.  You described to Ms Maynard a normal and fairly happy family life until that moment.  Thereafter, as I said, you were a homeless boy with virtually no supports, abusing drugs and alcohol and starting a lifelong pattern, it would seem with only one break, of constant and relentless drug use and criminal activity, some of it extremely serious.  This is the second time you have been before the court on extremely serious violent offending.

41I hope in the sentencing remarks I have made so far, Mr Huynh, that you understand that the court does have sympathy and does understand the great difficulties of your personal life.  Unfortunately, the court must also have regard, not only to the fact that when you are in the community and using drugs you present a serious danger to that community, but that the court is also obliged because of the nature of your offending to sentence you in a particular way.  In other words, I have to sentence you to a minimum term of four years for the charge of intentionally causing serious injury in circumstances of gross violence.

42I clearly do not need to say that the attack that you unleashed in company on Mr Toff was horrific.  That is evident.  But because you have previously been dealt with by the courts, even though that occurred 16 years ago, for very serious offending, I am obliged to take that into account in sentencing you.

43In sentencing you I do take into account your plea of guilty, which I regard as a genuine expression of remorse.  I accept that you are a man who when he can does his best to rehabilitate himself.  I note that even though you were homeless you have kept yourself at school until Year 11, and that only ended because you were gaoled.  I accept that when you got out of gaol in 2008 you kept yourself straight for 10 years and you worked and you built up an occupation and maintained employment.

44It is my belief, for what it is worth, that you are a man of capacity and that if you can use this time in gaol productively, as you have already begun to do, if you can operate within the gaol environment, which I am satisfied - although you may not enjoy it - you are comfortable with and know how to manoeuvre around; am I correct?  You know your way around a gaol?  All right.  You know how to access programs, you clearly do.  Marngoneet I know has more programs than most and it is my comment, and I will be forwarding my sentencing remarks to the gaol, it is my comment that in my view it is really important that you are placed in as therapeutic an environment as is available in a custodial sentence.  It is my belief that you want to carve out a useful, productive life which offers you peace and contentment, and I believe that you do have the capacity to do that.  But you are not going to be able to do that until you work very hard on the understandable psychological difficulties you have been left with as a result of your upbringing and a true understanding of how ruinous drugs are for you.

45I am not saying in any way that despite the serious offending that you are without rehabilitation or without hope.  But in the circumstances of course I can only deal with you by way of a term of imprisonment and it is going to be a term of imprisonment, regretfully, for some years.  Could you stand up please, sir.

46On Charge 1 you are sentenced to five years' imprisonment; on Charge 2 you are sentenced to 18 months' imprisonment; on Charge 3 you are sentenced to 18 months' imprisonment and on Charge 4 you are sentenced to 12 months' imprisonment.

47I order that the base sentence is the sentence imposed on Charge 1, that is five years' imprisonment.  I order that nine years of each of the sentences imposed on Charge 2 and 3 and six months of the sentence imposed on Charge 4 be served cumulatively to the sentence imposed on Charge 1, giving a total effective sentence of seven years.  I order that you serve a minimum term of five years before becoming eligible for parole.

48Now what is the PSD?  It was 13 days at the time that Mr Huynh last appeared.

49MISS BLAIR:  It's 88, I believe, Your Honour.

50HER HONOUR:  Thank you.  I direct that 88 days of this sentence have been served by way of pre-sentence detention.  All right, Mr Huynh.  All I can say to you, sir, is that – I will repeat what I said.  You have made a number of attempts in your life to put yourself on another path and in my view, from the material I have received, I think you are making a really good fist at doing that again.  And I believe that you are capable of doing it.  And I simply hope that in your time in gaol you are able to build on what you have started and continue it, and that ultimately when you are released you do lead the sort of life that you want.  But as I have said, it is quite clear with this very serious offending principles of general deterrence, just punishment and denunciation and protection of the community dominate the sentencing exercise before me.  Thank you very much, Mr Huynh.

51Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of eight years and ordered that you serve a minimum term of six years.  Thank you.  Thanks, Mr Huynh.  You can take Mr Huynh down.

52Are there any other orders?  Sorry, before we do.  Sorry, Mr Huynh, I just have to check.

53MR LIASKOS:  Apologies, Your Honour, I might have missed it, but licence suspension.

54HER HONOUR:  I am sorry.  In relation to Charge 4 your licence is cancelled, you are disqualified from obtaining any other licence for a period of two years.

55MR LIASKOS:  And Your Honour mentioned at the beginning of Your Honour's remarks, regarding the serious offender provisions for Charge 1.  I take it that forms part of the sentence as well?

56HER HONOUR:  You are declared to be a serious violent offender.  Is that everything that I need to do?  Thank you, Mr Huynh, you can be taken down.  Thank you, sir.  I'll return these certificates to you before I lose them.

57MISS BLAIR:  Thank you, Your Honour.

58HER HONOUR:  Has that letter been forwarded.  I take it Mr Toff didn't want it.

59MISS BLAIR:  He didn't want it.

60HER HONOUR:  Yes, understandably.  It's a shame.  Only because it might have assisted him, but you know, I could imagine the thought of having - I don't know.  It just may allay any fears he has about being attacked in the future.  It might be worth - look, I ask the prosecutor.  It's a matter the prosecution, but it might be worth pursuing this with Mr Toff.  Perhaps with a recommendation from the judge.  I don't want to step over the line, but that it might be of assistance to him to read that.  Once he's informed that, you know, Mr Huynh is basically in gaol for the next five years.  That might give him the confidence to read it.

61MR LIASKOS:  I'll raise that again with the informant, Your Honour, as I pass the sentence along.

62HER HONOUR:  I'm only suggesting that for Mr Toff's sake, it's got nothing to do with Mr Huynh.

63MR LIASKOS:  I appreciate that.

64HER HONOUR:  All right, thank you.  Has the prosecution got a copy of this?

65MR LIASKOS:  Of the letter?

66HER HONOUR:  Yes.

67MR LIASKOS:  We do, Your Honour.

68HER HONOUR:  You do, all right.  Well I'll simply return these materials to you, thank you very much.

69MISS BLAIR:  Thank you, Your Honour.

70HER HONOUR:  Yes, thank you.  Counsel are excused and we'll just get the next matter on, thank you.

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