Director of Public Prosecutions v Huynh

[2019] VCC 635

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00024
CR-18-00028
CR-18-00029
CR-19-00722

DIRECTOR OF PUBLIC PROSECUTIONS

v

LE HUYNH,
PHU HUYNH
GLENN NGUYEN

‑‑‑

JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	12 April 2019
DATE OF SENTENCE:	8 May 2019
CASE MAY BE CITED AS:	DPP v Huynh & Ors
MEDIUM NEUTRAL CITATION:	[2019] VCC 635

REASONS FOR SENTENCE
‑‑‑

Subject:  CRIMINAL LAW SENTENCE

Catchwords:  Kidnapping – Intentionally cause injury – Common assault – Prohibited person possess firearm – Plead not guilty – Guilty at trial – Term of imprisonment – Non-parole period.           

‑‑‑

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Glynn	Office of Public Prosecutions
For Accused LE HUYNH	Mr. D Cronin	Leanne Warren and Associates
For Accused PHU HYNH      For Accused GLENN NGUYEN	Ms N. Karapanagiotidis Mr R. Backwell	Leanne Warren and Associates Greg Thomas Lawyers

HIS HONOUR:

1Le Huynh, Phu Huynh and Glenn Nguyen you were each found guilty of kidnapping by a jury on 21 February after a three week trial approximately, including the preliminary matters.

2Le Huynh you were also found guilty of intentionally causing injury, common assault and being a prohibited person in possession of a firearm.  You have pleaded guilty to charges of possessing a drug of dependence, possessing property suspected of being proceeds of crime and being an unlicensed person in possession of ammunition.

3Phu Huynh, in addition to being found guilty of kidnapping you were also convicted of common assault.

4The maximum penalty for kidnapping is 25 years imprisonment.  The maximum penalty for intentionally causing injury is 10 years imprisonment.  The maximum penalty for common assault is five years imprisonment.  The maximum penalty for being a prohibited person in possession of a firearm is 10 years imprisonment.  The maximum penalty for the proceeds of crime charge is
2 years imprisonment.  The maximum penalty for being an unlicensed person in possession of ammunition is 40 penalty units.  The maximum penalty for possession of methylamphetamine is 12 months imprisonment, only when the Court is satisfied on balance that the possession is not for a purpose associated with trafficking, otherwise it is five years.

5In brief the facts of kidnapping can be summarised on the basis that you
Le Huynh were owed a debt, that was at least in part a drug debt, and you sought to enforce it by imprisoning the victim until he paid the sum owed.

6The victim attended at your premises at 20 Patonga Drive on 15 May 2017 in order to discuss the debt.  He had some drugs in his possession but he was unable to satisfy your demands for settlement of the debt.  You started to ask 'Where’s the money?'  You produced a firearm and threatened him with it.  He was imprisoned from that point forward.  You struck him several times with the weapon causing an injury to his head.

7You told the victim that he was not leaving and that you would contact others who would go with him to collect money.  The victim was sending text messages to others trying to raise some funds.  At one point you telephoned your younger brother and co-accused Phu Huynh.  You, Phu Huynh arrived and became an enthusiastic participant in the effort to extract payment of the debt from the victim.  You arrived at the same time as two or three others, each of whom participated in some way in the ongoing detention of the victim.

8In your presence Le Huynh, you Phu Huynh and a number of these others assaulted the victim for approximately one minute.  An assault commenced shortly after you Le Huynh said something to the men in Vietnamese and your liability for the common assault is on the basis of you directing that assault.

9Around an hour into the ordeal you Le Huynh took a photograph of the victim’s injuries for some unknown purpose.  At 7.55 pm you Le Huynh left the premises.  Before leaving you handed over your pistol to others so they could carry on the debt recovery process.  Your leaving was not a withdrawal from the enterprise.  Clearly you had set in motion a course of events that continued.  I sentence you however, on the basis of your criminality as demonstrated by your conduct between the arrival of the victim and your departure.  Your subsequent text messages also serve to demonstrate the scope of your criminality.

10After your brother left, I am satisfied that you Phu Huynh became central to the ongoing detention of the victim.  Text messages sent by you after the victim’s escape make this very clear.  As indicated during the plea hearing I cannot be satisfied to the requisite standard that you handled the weapon as per the evidence of the victim.  In brief, my reasons for concluding I cannot be satisfied you handled the weapon are due to the prior inconsistent statements of the victim, and the circumstances in which he first made such an accusation.

11Glenn Nguyen arrived not long before you, together with another, accompanied the victim to his home address.  You drove him there in your mother’s red Honda Jazz vehicle.  The purpose of taking him to his home was to try and collect money he stated would be left there.  The victim had earlier sent text messages to his mother asking that she obtain a substantial sum of money and leave it in the letter box.  He also asked her to contact the police. The victim was your prisoner during the trip to his home.  You were in possession of the pistol during this part of the detention.

12At his home the victim was trying to delay you and your accomplice in the hope that help in the form of the police or some other form might eventuate.  You escorted him first to the letterbox and then later inside. You had the pistol with you at all times.  After finding nothing in the letter box the victim pretended to look in the garage for money.  He had also surreptitiously sent further text messages urging the attendance of the police.

13After looking in the garage you told the victim it was taking too long and ordered him back to the car.  You drove your accomplice and the victim back to
Patonga Drive.  Your accomplice left the car.  You then drove back to the victim’s home.  The victim created another ruse, and was able to flee into his house before you were alerted to his deception.  He locked the doors and had effectively escaped your imprisonment of him.

14The trial was run by each of you on the basis that the victim’s credibility was poor and he could not be accepted as a witness.  The presence of the weapon, the fact that he was imprisoned in order to satisfy the debt and the fact that he was assaulted were the subject of challenge.

15The text messages sent by you Le Huynh and you Phu Huynh after the victim’s escape support his account and leave no doubt as to what had transpired.

16Le Huynh, at the time of your arrest at your address at 20 Patonga Drive, a case containing a total of 30.4 grams of methylamphetamine was found on the floor, together with deal bags.  According to the evidence at trial the
methylamphetamine had been left behind by the victim.  Nevertheless in all of the circumstances of the evidence in the case I am not satisfied that your possession of it at the time of its location meets the description of being ‘Not for a purpose associated with trafficking.’  Notwithstanding, given the circumstances of your possession of the drugs I intend to impose a sentence that is entirely concurrent with other sentences imposed this day.

17A total of $3,100 in cash was found (Summary Charge 10 possess proceeds). Two magazines containing ammunition were found in a bedroom (Summary Charge 9 –unlicensed person in possession of ammunition).

Objective Circumstances and Respective Roles

18The seriousness of the offence of kidnapping is indicated by the maximum of 25 years imprisonment.  There are more serious examples of the offence than this one, as was pointed out on your pleas.  However this matter contains several very serious features:

·A firearm was used throughout.  For sentencing purposes I cannot be satisfied it was loaded.  It may not have been loaded.  The victim was familiar with the weapon – the salient consideration from his viewpoint at the time would no doubt be that it may well have been loaded.

·The victim was assaulted during the ordeal.  He suffered injury.  He was held at gunpoint.

·The ordeal lasted for approximately two and a half hours.

·It only ended because of the victim’s escape.

·There was at least six participants at different times.

·The demand was for a substantial amount of money.

·The demand was in the context of an illicit drug debt, thus the victim must have been extremely concerned for his welfare and the consequences of non-payment of the debt.

19You Le Huynh were the instigator of the conduct.  You played the leading role.  You Phu Huynh were a significant participant, particularly once your older brother left Patonga Drive.  You Glenn Nguyen were the principle "gaoler", for want of a better word, once the victim was taken from Patonga Drive.  I do accept however that the level of oppression was substantially less at your hands, Glenn Nguyen, during the trips to the victim’s home, than was the case at Patonga Drive throughout.

20The victim was in grave fear throughout.  The offending has had a serious impact upon him.  I have received his victim impact statement and I take the impact upon him into account.

Le Huynh – Personal Circumstances

21Mr Le Huynh you are now 30 years of age having been born in October 1988 in Melbourne.  Your parents were both born in Vietnam.  Your parents separated during your teenage years.  You told a psychologist,
Mr Jeffrey Cummins, that the separation occurred because your father frequently engaged in acts of domestic violence against your mother and also against you and your sister.

22Your father is 55 and lives in Melbourne working in maintenance.  Your father has been in trouble with the law in relation to committing acts of domestic violence against a second wife from whom he has now separated.  You told
Mr Cummins that your father had a history of gambling, alcohol, heroin, methamphetamine and cannabis abuse.  You told Mr Cummins that essentially you had no meaningful bond with your father.

23Your mother is 51 years of age and she has remained single since separation.  She derives an income from her business as a nail technician.  Your mother has never been in trouble with the law.  Your mother has never had a problem with gambling, alcohol or illicit drugs.  I received a letter from your mother on your behalf at your plea hearing.

24You have an older sister who has never been in trouble with the law and now lives in the United Kingdom.  You have younger brothers, one of course being Phu Huynh and another younger brother who is aged 17.  On your father’s side you also have two half-sisters who are young.

25You attended a Catholic primary school in Braybrook and attended
Caroline Chisholm Catholic College until passing Year 10.  You were expelled for fighting at school at age 16 in early Year 11.  You were a reasonably competent student although whilst at secondary school you saw a school counsellor because you were often absent from school due to issues relating to your father’s physical abuse, which you told Mr Cummins continued even after your parents separated when you were around 16.

26After leaving school you did 12 months work as a motor mechanic’s apprentice, but then ceased that work when you found out that your employer had not registered you as an apprentice.  You then did approximately 12 months of cabinet making.  You also worked in a call centre in the city for around six months.  You were working at the Telstra call centre when you were arrested and charged with the homicide matters that were dealt with in the
Supreme Court in July 2009.  I will come to this matter in more detail later.

27You started drinking alcohol at the age of 13 or 14 and alcohol continued to be a problem for you until the age of 19.  You would drink at the end of each working day once you had started work.  You started smoking cannabis at around age 16 or 17 and you were a recreational smoker of cannabis until you were incarcerated at the age of 19.

28From the ages of 18 or 19 you were a frequent and sometimes daily smoker of methamphetamine.  You never used methamphetamine intravenously.  When you were 20 you were sentenced by Justice Kaye in the Supreme Court for the offences of manslaughter, intentionally causing serious injury and intentionally causing injury.  The charges related to a violent affray in company with several others during which the deceased was struck to the head with an axe and later died.  Other weapons were used to attack other victims and a serious injury was caused to one of those victims.  I was provided with Justice Kaye’s reasons for sentence.  You were 19 at the time of the manslaughter offence.  You were sentenced to a total effective sentence of 11 years imprisonment with a non-parole period of seven years imprisonment.

29You were released on parole on 28 June 2016 in relation to that sentence.  At that point you owed slightly less than three years parole.  You were remanded in custody for this matter following your arrest on 17 May 2017.  The Parole Board cancelled your parole with effect from that date.  It follows that you have been serving that parole sentence since your arrest and do not have available to you any pre-sentence detention in respect of the sentence which I now impose.  You have approximately 11 months left on that parole sentence.  I am told it concludes in April 2020.

30During your release on parole you held some employment at a stonemasons and received a serious injury to your left arm during this employment when heavy slabs of stone fell on your arm.  You received a serious crush injury including nerve damage to your left arm.  This accident occurred approximately 10 months into your parole.  You have not fully recovered from this injury.  Because of the residual pain in your left arm you are prescribed Lyrica and you take up to 600 mg daily which I am told is a very high dose.  

31You told Jeffrey Cummins that approximately one month prior to your arrest on
17 May 2017 you relapsed into illicit drug use.  You stated that you were using half a gram of ice daily for a month before you got arrested.  You were also using oxycodone, OxyContin and Lyrica for pain relief.  You were initially prescribed those medications at Western Hospital in Footscray.

32It was stated on your behalf that the injury to your arm precipitated a period of depressed mood.  You told Jeffrey Cummins that you relapsed into using methamphetamine and being dependent on methamphetamine because you were feeling depressed and in physical pain regarding the work-related injury to your left arm.  In Mr Cummins' opinion you developed an adjustment disorder with depressed mood in relation to the injury to your left arm.

33I accept that your injury to your arm causes ongoing problems and considerable pain that has to be managed with high doses of medication.  I accept that the injury will have an adverse impact on your experience in custody and I take this matter into account.

Totality

34Your counsel placed particular emphasis on the principle of totality.  Noting that the offences before me are interrelated and your cancellation of parole comes about due to the commission of these offences.  I was referred to the case of The Queen v Stephen James Hunter where the operation of s 16(3B) and its relationship with the principle of totality is discussed.[1]

[1][2006] VSCA 129, [10]-[32].

35Section 16(3B) requires that the sentence I impose be served cumulatively on the unexpired portion of your parole sentence unless I find exceptional circumstances exist that warrant some concurrency.  Exceptional circumstances were not advanced by your counsel and there is clearly no basis to find that they exist.  Accordingly I must order that the sentence I impose be served cumulatively upon the parole sentence, however I must also have regard to the principle of totality.  The practical effect of applying totality is that I must moderate the sentence I impose so that the total sentence you face does not exceed the criminality encompassed by all of the sentences.

Prospects of Rehabilitation

36Given your serious offending in all of its circumstances whilst on parole for such a serious matter and considering your drug history and the conclusions of
Mr Cummins as to your insight, I find I am unable to consider your prospects of rehabilitation as anything other than poor.

Phu Huynh

37Phu Huynh you are a younger brother of Le Huynh.  I have already summarised his early life and background and of course yours is similar.  Your parents separated when you were 13 or 14.  You were also exposed to violence, alcohol abuse, gambling and instability via your father in your formative years.  You have not had contact with your father for a number of years.

38You lost an eye as an infant.  You have a prosthetic glass eye.  This has caused feelings of great insecurity and rejection throughout your formative years.  You have felt stigmatised as a result of your glass eye during your formative years, you experienced bullying, your self-confidence was eroded as a result and it has been a source of depression, anxiety and alienation for you over the years, particularly as a younger person in school.  In his report Dr Aaron Cunningham opines that this experience led to vulnerability and negative peer influence as you sought acceptance with people from whom you would not feel rejected.

39Every 12 months you are required to attend a specialist for cleaning at regular periods also for the purpose of replacing and resizing your prosthetic eye.

40You completed Year 11 at school.  I was told you have worked hard since.   Your work history includes loading containers, working in your cousin’s bin hire business, working at the airport.  You have also undertaken a traffic control training course.  I was told you have aspirations of either working in the video game industry or starting your own retail business.

41I was told there is work available for you upon release.

42At the age of 18 you were deeply affected by the incarceration for manslaughter of your older brother.  His incarceration had a significant emotional and financial impact on you and your entire family, including selling the family home.  You had been close to your older brother.  You also feel considerable loyalty towards him, I have been told.  You were up until recently a carer for your grandmother who suffers Alzheimer's.  You assist her in a variety of ways including bathing, cleaning and translating.  You live at home with your mother and a younger brother.  I accept you feel you have let your mother down in particular.  You have been described as being burdened by this fact.  Many testimonials were tendered on your behalf, the most recent being from Danny Nguyen which was received since the plea hearing.  The others, include your partner Dixie Medina, Than Pham, Tristan Sullivan, Steven Nguyen and one from your mother.  I also received testimonials from Theo Markellis and Bau Ngyen.

43The effect of these testimonials is to paint a picture of a responsible and considerate son, grandson, partner, friend and employee.  Someone who contributes to the wider family, someone who is a ‘Rock of support’ for your mother.  Someone who is scarred by experiencing the impact on the family of his older brother’s incarceration for manslaughter.  It is a shame that despite going through the experience of your brother’s imprisonment, you so willingly leapt into serious offending by his side in May 2017.  I accept that you exhibit these strong and fine qualities that those supporters and loved ones have attested to.  

44But they deserted you spectacularly on the evening of 15 May 2017.  You demonstrated a capacity for cruelty and the torment of another and a willingness to engage in serious criminality.  Far from a considerate and responsible individual on that night, you behaved like a callous gangster and standover man.

45As I have said, I accept you have these finer qualities.  You have a reasonable work history.  You have never been sentenced to a term of imprisonment before.  Your previous appearance was on 24 October 2016 for breach of a CCO and the order was confirmed.  You have Children's Court appearances for affray and violence, you have a previous history of driving matters also.  I was told you now have your licence and have put it to good use caring for your grandmother, driving her to appointments and driving your brother places.

46All things considered, I find you have reasonable prospects of rehabilitation given the support you have from your partner, your mother, family and friends.  I accept that you have tried to make positive changes to your life whilst on bail.  You have been on strict bail conditions including a curfew since July of 2017.  You are relatively youthful.  The positive matters expressed on your behalf and through the testimonials would resonate more vibrantly if they were accompanied by remorse and contrition for your wrongdoing.  You are not to be punished for contesting the matters at trial, I simply point out that the impact of the matters I accept on your behalf, going to the issue of rehabilitation, would have even greater effect if they sat within the context a plea exhibiting remorse and contrition.

Glenn Nguyen

47Mr Nguyen I have already observed that whilst your offending was serious, you handled and used the weapon, and you were the principle "‘jailer" of the victim during your participation in the offending.  I consider your level of oppression toward the victim to be well below that of Le Huynh or even Phu Huynh during their participation in the offence of kidnapping.

48

My assessment of your overall role is that you fall marginally below that of

Phu Huynh, with Le Huynh’s role being clearly the most significant.

49Your criminal history is almost of no moment in the context of this matter save for the appearances of affray and injury matters in the Children's Court in 2011. There is a gap in the criminal history from 2013 up to this matter which occurred in May 2017.  Your history compares favourably with the histories of Phu Huynh and Le Huynh.

50You are the youngest of the three, being 23 now and 21 at the time of the offence.

51Up until your recent remand you were living at home with your parents, your grandmother and some of your siblings.

52You were born in Melbourne and grew up in Carlton and then Deer Park.  Your parents migrated from Vietnam with your grandmother prior to your birth.  You have two sisters and a brother.  All of your siblings were born in Australia.  They are all law abiding members of the community engaged in meaningful and productive work or tertiary education.

53Your mother works form home as a beauty therapist and your father repairs shipping containers.  Your counsel told me that you are the only child of the family to get into trouble, you rebelled against the expectations at home.  You left home at a young age and ‘couch surfed’ at the homes of friends.

54I was told you have passed Year 10 at secondary school.  That you attended Copperfield College apparently until Year 8.  You later completed a TAFE general education course.  In 2016 you were accepted into the SAE Institute and completed one semester in 3D animation.  You completed casual work at your father's place of employment intermittently since high school.  You worked at Western Containers cleaning shipping containers, but you developed a reaction to the chemicals you were required to use and left after one month.  I was told you have not worked since early 2018.

55You are currently on Centrelink benefits. 

56At age 13 you were apparently kidnapped at gunpoint.  You told psychologist Gina Cidoni that you believed the kidnapping was in retaliation for a fight that you and your friends got into.  You reported to Ms Cidoni that you were driven out to a farm that you had a body bag and a shovel and your perception was that the man who took you there decided not to kill you after asking how old you were.  In 2015, you were in Thailand with your grandparents and an aunt and uncle.  You told Ms Cidoni that the trip was in part designed to move you away from drug use and the negative influence of your peers. 

57

You said that while you were there a close friend of yours was murdered in Melbourne.  During the same holiday you were 100 metres away from a shrine, when a bomb went off, causing massive carnage to a number of individuals.  You told Ms Cidoni that you commenced drug use at age 14.  You started using ice and cannabis, sometimes simultaneously.  You reported using cannabis daily from ages 14 to 20.  You first used heroine at age 15.  But you told

Ms Cidoni you stopped using it at age 19.  You have used GHB and methadone, but you told Ms Cidoni you take them rarely.  You have used many other drugs including amphetamines, MDMA, Oxycontin, cocaine and benzodiazepines.  Ms Cidoni reported that you showed symptoms of PTSD and I take this into account in formulating your sentence. 

58She also stated you experienced paranoia and have psychotic experiences that are exacerbated whilst using substances.  She found that there was a marked sociopathic trend in you with anti-social traits, immaturity and egocentricity.  It is disturbing in your case that despite such an apparently traumatic history, including being the victim of a terrifying kidnapping yourself on your account, that you would engage in the very same conduct in relation to the victim in this matter.  You were on strict bail when released from custody in September 2017 up until you were remanded on 12 April this year, including curfew conditions. 

59I received testimonials from your elder sister, your younger sister, a cousin and a friend Tony Nguyen.  I accept that the sentiments expressed by them, their experience of your character and their perception of the challenges you face, are genuine.  These references go some way, together with other matters, including your relative youth and limited history, to a finding that you have reasonable prospects of rehabilitation. 

60Your counsel stated that you need to embrace your family.  They are there for you and there is no doubt that they will be a positive influence on your life if you allow them to be.  You need to listen to them and remove yourself from former influences and the destructive, negative influence of drug use.  I will now turn to sentence.

Sentence

61The overall criminality demonstrated by this episode of kidnapping at gunpoint together with its associated features is particularly dire.  I must impose sentences of sufficient length, to deter others and to denounce the conduct.  Specific deterrence is also relevant where each of you are concerned, but particularly you Le Huynh.

Le Huynh

62I sentence you as follows.  On Charge 1 on the trial indictment, intentionally causing injury, you are sentenced to 18 months imprisonment.  On Charge 3, kidnapping you are sentenced to be in prison for four and a half years, this is the base sentence.  On Charge 5, common assault, you are sentenced to be in prison for nine months.  On Charge 8, being a prohibited person being in possession of a firearm, you are sentenced to be in prison for two years.  On Charge 1 on indictment H11370942, you are sentenced to be imprisoned for six months.  On related summary Charge 10, possessing property suspected of being proceeds of crime, three months imprisonment. 

63On related summary Charge 9, being an unlicensed person possessing cartridge ammunition, you are fined $500.  I direct three months of the sentence imposed on Charge 1 on the trial indictment, intentionally causing injury, be served cumulatively on the base sentence Charge 3.  I direct that three months of the sentence imposed on Charge 5, common assault, be served cumulatively on the sentence imposed on the base sentence Charge 3.  I direct that three months of the sentence imposed on Charge 8, be served cumulatively on the base sentence Charge 3.  That makes a total effective sentence of five years and three months imprisonment.  This sentence is to be served cumulatively on the unexpired portion of your parole sentence.  I set a non-parole period of three years.  I make the forfeiture orders sought in respect of each case that is applicable to those forfeiture orders.

Phu Nguyen

64

On Charge 3 on the trial indictment kidnapping, you are sentenced to three years and nine months imprisonment and this is the base sentence.  On

Charge 5, common assault, you are sentenced to nine months imprisonment.  I direct that three months of the sentence imposed on Charge 5 be served cumulatively on the sentence imposed on Charge 3.  That makes a total effective sentence of four years imprisonment.  I set a non-parole period of two years and six months before you are eligible for parole.

65Pursuant to s.18 of the Sentencing Act I declare that you have served 83 days as pre-sentence detention.  There is an application for an order 464ZF in your case.  I make the order sought, I make it based on the seriousness of this offending, also your prior matters and the fact that there was no opposition to the making of it.  Once I sign that order, you will be required within the requisite time to submit to an oral swab for the purposes of taking a forensic sample.  If you do not submit to it, reasonable force can be used to take the sample. 

Glenn Nguyen

66On Charge 3, kidnapping, you are sentenced to three years and three months imprisonment.  I set a non-parole period of two years.  I declare that you have served 145 days as pre-sentence detention in this matter.  I also make a s.464ZF order in relation to the taking of a forensic sample from you.  I do so for the reasons being the seriousness of the matter, your prior history and the fact there was no opposition to it.  If you do not submit to the taking of the sample, reasonable force can be used for it to be taken.

67Pursuant to s 168, the Indictment No.C1711251.2 relating to Phu Huynh will be remitted to the Magistrates' Court.

MR GLYNN:Yes Your Honour.

MS ALLISON:  Yes Your Honour.

HIS HONOUR:  Adjourn until 10.30.

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