Director of Public Prosecutions v Huynh; Director of Public Prosecutions v Quang
[2014] VCC 934
•18 June 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR-13-00078
CR-13-00079
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TUAN HUYNH |
| and |
| UYAN QUANG |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8, 9, 10, 11 and 14 April 2014 |
| DATE OF SENTENCE: | 18 June 2014 |
| CASE MAY BE CITED AS: | Director of Public Prosecutions v Huynh; Director of Public Prosecutions v Quang |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 934 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – extortion – armed robbery – make threat to kill – extortion with threat to kill
Legislation Cited: Sentencing Act 1991; Crimes Act 1958
Cases Cited:R v Mills [1998] 4 VR 235; Director of Public Prosecutions v Tokava [2006] VSCA 156
Sentence:Huynh – convicted and sentenced to 4 years and 6 months’ imprisonment with a non-parole period of 3 years.
Quang – released upon undertaking to be of good behaviour for a period of 4 years without conviction and fine of $2000 or 120 penalty units.
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APPEARANCES: | Counsel | Solicitors |
| For the Office of Public Prosecutions | Mr A Albert | Craig Hyland Solicitor for Office of Public Prosecutions |
| For Accused Huynh | Ms N Karapanagiotidis | Revill & Papa Lawyers |
| For Accused Quang | Mr D Cronin | Emma Turnbull Criminal Law |
HIS HONOUR:
1Just formally, can I ask you to remain seated while I explain the reasons for my sentence. That is necessary so that you fully understand why I have sentenced you, but importantly, so that such is recorded for all purposes, and in particular, should it go any further.
2These offences, obviously, of which Mr Huynh was convicted by the jury, and the offence for which Ms Quang pleaded guilty, are obviously matters of much seriousness, as is demonstrated by the sentence that I handed down to Mr Tam Huynh.
3There is much, of course, about a trial that details circumstances far better than one has and receives in a plea. It seems to me, clearly, that this is a case to point. The circumstances as I perceive them, are that Mr Tuan Huynh was very much, in the circumstances as disclosed to the jury, the driving force on this night.
4Further, though these offences are serious, it is clear to me that they were matters that more or less got out of hand. There was no, as was put clearly, overt planning, and I think this particularly applies to the co-accused, Quang. I have no doubt that she was, at all times, keen to get her bond and rent monies; however, I find the criminality involved is substantially different, as is her age and that she has no priors whatsoever. I find that there is a dramatic difference in criminality involved between her and the co-accused, and this will express itself in my determinations. Also, as I was subtly reminded by the learned prosecutor, in the sentence of Tam Huynh, I made a pronouncement or a declaration pursuant to s6AAA of the Sentencing Act. Clearly, while there is no direct parity in regard to all matters for which I am sentencing his brother, there is parity, certainly in regard to the threat and the armed robbery charges.
5I have no doubt that the driving force, as between them, was the elder brother, that he was the person directing activities. Further, as I have said, I have gained an appreciation of the totality of the criminality in this matter, and though serious objectively, I cannot disregard the fact that these crimes were unplanned and got out of hand. I have taken into account, of course, my declaration and it seems to me, in the circumstances, that I have taken that into account as best I can, given the reality now of having heard the full facts as disclosed in the trial.
6As I say, taking Mr Huynh first, he pleaded not guilty. He is now 27. Following a trial, he was found guilty of each of the five charges on the indictment. Exhibit A was the Prosecution Summary tendered for this plea. The first charge is one of extortion. The complainant in this case was Mr Le and it concerns demands put upon Mr Le which led to transferring, by way of Internet transfer, $900 from his account. That particular charge is the charge which relates to the co-accused, Quang. Mr Huynh is then charged again, in this instance – this relates directly to his brother who pleaded guilty to these matters – to two armed robberies, the first against Ms Lam concerning property of hers, essentially an iPhone, passports, identity cards.
7The important part about this charge and Charge 3, of which the complainant was Mr Le, is that these are, of course, armed robberies committed with the use of a knife. They are, by their very nature, most serious offences for which the Parliament has proscribed maximum penalties of 25 years.
8The final two charges on the indictment of which Mr Huynh was convicted, relate to threats to kill made to both Ms Lam and Mr Le, that they relate essentially to the circumstances surrounding the totality of the events and steps taken by Mr Huynh, still in possession of the knife, as to what would happen to both victims should they report the matters to the police, and not only to them, but what might happen to their families.
9Insofar as the fifth charge upon which I am to sentence, that is, the last charge of threat to kill, that is a serious violent offence and the serious offender provisions applies to that matter. There has been no submission by the Crown that the sentence should be anything that is not akin to the actual criminality in this matter, or that it should be skewed in any way to protect the public.
10The normal result would be that the sentence imposed for Charge five would be cumulative upon the other sentences, however, without in any way wishing to disregard the intent of Parliament, the totality of the sentence will mean that that is simply not possible given how I have proscribed the sentence.
11As I said, the objective seriousness of all these crimes is demonstrated by the material set out in exhibit A, and I will not repeat it. The effect of such criminality is also amply detailed in both exhibit B and exhibit C. They are, respectively, the victim impact statements of firstly, Ms Lam and then Mr Le.
12Reading those statements, it is quite clear that they both were particularly intimidated by the ferocity of these attacks, by the fear engendered by these attacks, and also the fear engendered by the threats made. It is difficult, and I make the following comments without reflection on the Vietnamese community in any way, because I have got to know many aspects of the Vietnamese community and admire it greatly.
13However, where there are threats made as to impacting on a family back in Vietnam, there are a lot of factors in the history of that country that may well have come to play, which impacted upon both victims in this matter, of which the Court would be not aware; however, what is clear from the victim impact statement is that they were particularly concerned about those matters. There was no suggestion from counsel that there was any exaggeration in those victim impact statements, and that is the manner in which I have considered them.
14Coming to the circumstances put to me by Ms Karapanagiotidis on behalf of Mr Huynh, I cannot help but think the background to these matters lays very much in his priors, which have been admitted. As I said in the sentence relevant to his brother, Mr Huynh in this instance has made a very large leap, although a much larger leap than his brother did. Each of them jumped into a league of seriousness that neither has been in before, with extortion and armed robberies.
15A perusal of the priors show that they have never been in such a league before, however, cursing both their backgrounds, despite the attempts by their family to assist them, has been an addiction to drugs. I have no doubt that it is that background and the milieu surrounding it, that lays at the core of the over-reaction by Mr Huynh on this night.
16Unlike his brother, he, in fact, does have significant – not only drug matters – but does have a number of convictions for prior assaults. That is not, in any way, to disregard the number of priors that he does have by way of traffic heroin, and involvement generally in the drug milieu, but he does have prior counts for intentionally cause injury, threaten serious injury and also for recklessly cause injury, albeit going back to 2005. They are matters of concern when one is dealing with violent offences, and again make for a significant difference between him and the sentencing, as I have conceived it of Ms Quang.
17Insofar as the plea was concerned, Ms Karapanagiotidis did not seek to resile from the seriousness of these crimes. Their objective seriousness is clear. She submitted, however, that a true understanding of what had occurred on this night would lead the Court to pass a sentence which had within it, substantial concurrency. She submitted that as far as her client was concerned, and indeed, the circumstances of the night, that there was no actual pre-planning. It is clear, on the facts, that that is correct. This issue as to the money owed, the desire to leave the flat and break the lease certainly arose on that night. As Ms Karapanagiotidis stressed, when you looked at his priors, despite the background of violence, the degree here is a substantial jump.
18Ms Karapanagiotidis again referred by way of background to the cycle of drug use which has beset this refugee family, as I say, despite the attempts of the parents. Her client, in fact, had particularly good prospects. He is an intelligent person and did well at school. Unfortunately, no doubt because of the strong discipline involved with Vietnamese families, he left home at a very young age, and found himself on the street, and as I say, his priors show that things then fall apart. He not only has problems at school, does not complete the schooling to the level that he could have, albeit that he was intelligent enough, despite these circumstances to still do his Year 12, but gets into a chain, or a milieu, of involvement with drugs, which begins with ecstasy and unfortunately escalates through to heroin, albeit not injected. It is clear that this impacted upon his whole life and that is again demonstrated in the types of offences he commits. He was sent back to Vietnam at one stage to try and sort out his life. His parents hoped that within the culture of Vietnam he would sort out his life. Unfortunately, he was not able to avoid the scourge of drugs.
19It was put to me that throughout his career, despite a number of prison sentences, he has shown, when he got out, for example in December of 2010, that he could meet his parole obligations and therefore he is a person who is capable, if he wants to, of freeing himself from the scourge of heroin. Essentially, Ms Karapanagiotidis, while submitting that, and not resiling from the appropriateness of imprisonment, put to me that there was, perhaps, for the one last occasion in regard to her client, an opportunity by way of a longer than usual parole period to assist him. It is quite clear, Mr Huynh, that unless you now eliminate the impact of drugs upon you, you will spend the rest of your life in gaol, as you have effectively spent the last 18 months. Of those 18 months, the period that applies to you by way of s18 is now 267 days and that is indicative of the other offences that you have committed and for which you have served time. Despite that indication of capability and meeting your parole and abstaining from drugs, the background, again, to these offences, seems to be your resumption of heroin use.
20Throughout a significant period of your relationship with Ms Quang, you have been in custody, estimated approximately half of the time that you have had your relationship with her, you have been in custody. Also tendered was exhibit 1, the report of the psychologist, Mr Simmons. That report is dated 5 May, 2014. That report, essentially, recounts much of what I have just had to say. Under ‘Opinion’ it notes your background and that you were raised in Australia by refugee parents. It notes the deterioration in your behaviour at secondary school, and your early interest in drugs. It notes that you began substance abuse at 15, with cannabis, and then amphetamines and alcohol, however, that you have struggled over many years with heroin, as I say, again demonstrated from the number of trafficking counts.
21The psychologist makes the obvious comment that you would benefit from drug and alcohol counselling, with a particular focus on relapse prevention. As I say, unless you want to be institutionalised for the rest of your years, there is no doubt that that is the correct position. He indeed makes the plea to the Court at the bottom of page 6, that you have been in custody for one reason or another, for almost 18 months. He notes that you would face a further custodial disposition as a result of this sentence, and raises the issue of you becoming institutionalised.
22That impact would be obviously no good to you, or to the community, however Mr Huynh, should you choose when you finally get out from serving this sentence, not to rid yourself of drugs, that is exactly what is going to happen. There is, as you know, no alternative. It does not seem a though you have had any physical issues to date, but as your counsel described it, I starkly described your future. There are only three alternatives for you: firstly, you give up the drugs. If you do not give up the drugs, then what is front of you is a milieu of drug-taking crime and imprisonment, should you not be subject to the third alternative, which is to be found dead, up an alley, having overdosed. The second two are not great alternatives.
23They reflect however, exactly what I said to your brother. He also is required to make the same steps. Your counsel stressed that you have been, as best as can be determined while in prison, clearly in a position where – while this might sound remarkable – free of drug taking within the gaol. You have done the appropriate courses. You have, as I have said, been quite honest and upfront with Mr Simmons in regard to his report, and you have worked as a billet in your particular unit. Your counsel also spoke of the large amount of time that you have spent during your life, in recent times, in gaol, apart from the period that I must take into account, and asked me to take that into account on the issue of totality. I have, as best I can, taken all those matters into account.
24I have determined, therefore, to sentence you for the five charges as follows: If you would stand please. Doing as best I can, and taking into account all the matters put on your behalf, but balancing those against the need for appropriate punishment, and appreciating the seriousness of your offences. Ms Quang, you can sit down for the moment.
25On the first Charge you are to be sentenced to a period of imprisonment of two years. In regards to Charges 2 and 3, that is, the armed robbery charges, on each I sentence you to imprisonment for a period of three (3) years each. On the threats, being Charges 4 and 5, I sentence you on each charge to imprisonment for a period of fifteen (15) months.
26Having been sentence to gaol in regard to Charge 4, the violent offender provisions apply. As I said, there is no submission from defence in this matter. Parliament has determined that unless I determine otherwise, the penalty imposed in regard to Charge 5 should be fully cumulated upon the other sentences. It is, in my view, upon the issue of totality, despite giving full cogniscence to the intent of Parliament, not possible to do that in this case.
27What I have determined, insofar as your sentence is concerned, is to make Charge 2 the head sentence. That is a sentence of three years for armed robbery. To add to that, 12 months in regard to the extortion Charge 2, be served by way of cumulation, and six months by way of Charge 4, being the threat offence, making a total aggregate sentence of four (4) years and six (6) months.
28I have determined, Mr Huynh, that the period that you should serve before being eligible for parole, is a period of three years.
29I also declare that the 267 days that you have served on remand, be deemed part of this sentence, and that declaration be lodged in the Court for such purposes. I have also made a Compensation Order and a Disposal Order. As I say, I note a slight difference in both the total aggregate and the minimum that I suggested that I would have imposed. In regard to your brother, however, the differences, as I have explained, comes about from a full understanding of the circumstances and the manner in which they occurred. Insofar as your client is concerned, Ms Karapanagiotidis, is there anything I need to clarify?
30MS KARAPANAGIOTIDIS: No, Your Honour.
31HIS HONOUR: Mr Huynh, the end result of that is the maximum sentence I will be giving you is four years and six months. The minimum you have to serve before being eligible for parole is one of three years, of which you have already served 267 days. Anything Mr Prosecutor?
32MR ALBERT: No, Your Honour.
33HIS HONOUR: Yes, you can take away the prisoner.
34MS KARAPANAGIOTIDIS: Your Honour, may I be excused so I can speak with my client downstairs.
35HIS HONOUR: Yes, certainly. Certainly.
36MS KARAPANAGIOTIDIS: Thank you.
37HIS HONOUR: Ms Quang, you can stay seated. We then come to the sentence of Ms Quang. Ms Quang pleaded guilty pre-trial – to one count of extortion with threat to kill. The maximum penalty proscribed, being an offence under s27 of the Crimes Act, is one of 15 years. That, in itself, demonstrates the seriousness with which the community, and in particular, Parliament look upon such an offence. Insofar as the plea which was conducted before me, Mr Cronin appeared on behalf of Ms Quang.
38As I have already remarked, these particular circumstances were certainly not planned. Ms Quang is now only 23. They came about because of a disagreement over rent and bond money. When the victims refused to return the money, Ms Quang sought the assistance of her then boyfriend, Mr Huynh, who I have just sentenced. The particular role that she played, for which she has pleaded guilty, given the agreement that was reached just prior to trial, was that she pleaded guilty to the extortion charge which involved the Internet banking transfer of some $900. Her role was to effectively effect such transfer by the use of technology from her iPhone whereby the transfer of the $900 came out of one account into the other.
39The substantial difference, of course, in her background comes about insofar as the other two parties that I have sentenced in these matters – only one party has been sentenced for extortion, that is her boyfriend – is the fact that has no priors whatsoever. She was 20 at the time. She came to Australia at the age of 17 to begin foundation studies. She completed those, and indeed successfully completed all of her studies and she is about to graduate, as I understand the position, having passed and qualified in a Business Management Degree from Deakin University. Since that time, she has been part-time employed, and hopes to get work in the fashion industry.
40Insofar as her character is concerned, not only was there no priors, but tendered on her behalf were a series of character references, in particular from her mother, and from other persons that she has met, both by way of her work, and throughout her studies and insofar as her religious observance is concerned, which did talk to her character.
41I have, having been able to look at the circumstances of this crime, albeit that she was willingly a party to obtaining her rent, taken the view that the manner in which this domestic dispute became a serious criminal matter, must rest primarily with the actions of her boyfriend, albeit that she certainly benefitted in receiving the monies that she wanted, by the actions of her boyfriend and his brother. However, I have come to the firm conclusion that these circumstances erupted into this serious criminality because of the actions of her boyfriend.
42I accept the propositions put to me that she has been particularly remorseful. It is pointed out that her original record of interview was one of denial and that situation was maintained up until the settlement was reached prior to trial. I think her role as very much the lesser party must be respected, as is her legal position to be entitled to take action when an appropriate indictment is placed before her. It seems to me, in the circumstances, that I should not take any particular untoward view of her, despite her denials referred to by the learned prosecutor today.
43Insofar as Mr Cronin's plea was concerned, he stressed the personal circumstances that I have referred to. He stressed the fact that she was from a clearly – she was the pathfinder I suppose you would say – of a family trying to attain the benefit of education for the first time, and that she is a person who came to Australia at a very young age, to do that. I must say that I was particularly taken with a letter from her mother, and setting out the circumstances whereby the family, firstly, refused and did not want her to go; and then were very proud of her, the actions that she had taken, and been, of course, devastated when they became aware of this crime.
44Mr Cronin stressed the excellent steps she has taken in her Tertiary education and the employment history, that is, that throughout her time, she has been involved in casual work. He stressed the plea of guilty, albeit in the totality of the circumstances and not until the trial was about to begin; the fact that she had no priors, her genuine remorse which is, as I have said, so strongly attested to by the character references, her strong prospects for rehabilitation, her role and the circumstances of offending which, as I have said, I think was significantly different from the tenor in which it developed once the boyfriend arrived, that is, Mr Huynh, who I have sentenced today.
45The other impact has been, although not unusual, she has had these circumstances hanging over her for a long time, and given her status, she has issues that may well relate to her residency; however, they are not matters that I can take directly into account. They are matters of an administrative nature which do not really concern me.
46Insofar as Mr Cronin’s plea itself, he stressed that she has kept to her bail since. That since this time she has seen herself in a particularly dark place, and despite that, she has been able, with medical assistance, to continue with her studies and be successful in her studies. I accept the comment made that it was never her intention that these matters would escalate. It is very difficult to take oneself into the circumstances of this particular lounge room on this particular night. I also accept that she has suffered as a result of the threats to her life that have come about from her own actions, and in this regard, I take into account in particular, the comments of her doctor in his letter of 12 May 2014.
47It was put to me that it would be appropriate, in the circumstance, for a sentence which did not involve imprisonment despite its seriousness, and did involve something being put back to the community by way of a Community Correction Order. In considering a sentence of this type, it is a very difficult balance. I have no doubt that this particular person with no priors who is, essentially, still a young person and very young in this community, will effect rehabilitation. Whether it is with, still as a girlfriend of Mr Huynh, must be questioned. I would think she should look very closely at her relationship in regard to Mr Huynh. He is a person, unfortunately, who has been afflicted by drugs, and I would think that relationship would be dangerous; however, it is not for this Court to tell people what relationships they form.
48However, I would be concerned if she maintained that relationship, as against her wanting to rehabilitate. However, being as positive as I can, and upon the principles set out by our Court of Appeal in R v Mills [1998] 4 VR 235, and in particular in the case of Director of Public Prosecutions v Tokava [2006] VSCA 156 by the current President, indicate that this Court should, in particular circumstances, despite there being serious offences committed, if it is convinced that rehabilitation can be effected, then a period of imprisonment should not be imposed.
49I am so convinced in this case, despite its serious nature. I do not intend to pass a Community Correction Order in this matter. Given the totality of the circumstances, I find that an order under s75 of the Sentencing Act 1991 should be passed, and that is a release upon her undertaking to be of good behaviour for a period of four (4) years, without conviction.
50I will impose, as well, a fine of $2000, which as close I can get it, I think, comes to about 120 penalty units. I accept that the submission put to me was a Community Correction Order, however, taking the totality of the circumstances as I understand it, and the totality of her background, I find that the bond is the appropriate sentence in this case. Mr Cronin, I will have to get your client to enter into such an undertaking. You better ask and explain to her, firstly, what it means. It would be a very, very unfortunate for her if, during that time of four years, she committed another criminal offence.
51MR CRONIN: Yes.
52HIS HONOUR: With offences of this type, you only get one chance for leniency in your life. This is it. If she came back before me, there would be no other alternative, but a period of gaol, and it will be necessary for you to explain that to her.
53MR CRONIN: Yes, Your Honour.
54HIS HONOUR: Mr Prosecutor, would you like to clarify any matters?
55MR ALBERT: Yes, if Your Honour could assist me. We are trying to find the provision under which a fine can be imposed.
56HIS HONOUR: A fine can be imposed upon any sentence.
57MR ALBERT: In addition to an undertaking.
58HIS HONOUR: Yes.
59MR ALBERT: Yes.
60HIS HONOUR: Just general fine provisions. I think the fine provision can be imposed in regard to any sentence, can’t it?
61MR ALBERT: I do not doubt it, Your Honour, I am just trying to find it.
62HIS HONOUR: It is the general fine provision. It says, in addition to any other provision, if a person is found guilty of an offence, under s49, the Court may, and that is guilty, and she has pleaded guilty, subject to any specific provision, fine the offender in addition to, or instead of any other sentence – s49(1).
63MR ALBERT: Thank Your Honour.
64HIS HONOUR: It is a very difficult situation. A CCO is sometimes seen as an appropriate form of punishment. It seems to me that given her situation, a fine of that order would be appropriate.
65MR CRONIN: Your Honour, obviously we agree with it. There is just one typographical part of the undertaking.
66HIS HONOUR: Yes. Ms Quang, you have pleaded guilty to this very serious charge. I have taken a very unusual step with you, given your background, not to impose a conviction and to release you on a good behaviour bond. That is because of the particular nature of these circumstances, and as I have said, how this matter went awry on this night. However, one of the most important provisions of the undertaking, as Mr Cronin has just explained to you, is that you do not commit another offence in the next four years. If you come back to me having committed another offence punishable by imprisonment, then there will be no more leniency. Do you understand that?
67ACCUSED: Yes, Your Honour.
68HIS HONOUR: Mr Cronin. What is an appropriate time, given that she is still basically not working full time, is she?
69MR CRONIN: No, she is not.
70HIS HONOUR: What about 12 months?
71MR CRONIN: Yes, thank you sir.
72HIS HONOUR: For the payment of the fine, but I should indicate that if there is an application to extend that time, I will expect a substantial amount to have been paid.
73MR CRONIN: Yes, thank Your Honour. I will explain that to her and the process. Thank you.
74HIS HONOUR: Just coming to your subtle comments about s6AAA, I think the difference is that with his brother I declared five years with a non-parole period of two years and four months, where the sentence for Tuan Huynh was actually four years and six months with a non-parole period of three years.
75MR ALBERT: Yes, Your Honour.
76HIS HONOUR: Sometimes they do not necessarily align.
77MR ALBERT: No, no, well no two cases are identical, Your Honour, but I just thought ‑ ‑ ‑
78HIS HONOUR: No, I suppose those two cases have to be pretty close to identical, albeit one was a plea.
79MR ALBERT: They were close, but it is never identical and that is concluded, that is understood.
80HIS HONOUR: But I was aware of your – of the issue.
81MR ALBERT: No doubt you were, and Your Honour, I was just being overly ‑ ‑ ‑
82HIS HONOUR: No, no, I appreciate it.
83MR ALBERT: ‑ ‑ ‑ overly annoying.
84HIS HONOUR: No, not at all. I appreciate the reference. That has got to re-done, does it? That has probably taken us past the next one, has it? We might just have a slight – short break after we do this. Ms Quang, could you stand please. I think, given what has just happened to your, as I understand – still boyfriend – you will understand how close you came to gaol in this matter. I have not pronounced the determination under s6AAA because of the circumstances it is very difficult, but all I will say is, for the purposes of satisfying that requirement, that had you not had this order passed today, then the alternative would have been a sentence involving gaol. I expect you, over the next four years, to live the life you have lived prior to this time, and if you get into any difficulties, do not call your boyfriend, go to VCAT or something like that if you want rent. All right?
85ACCUSED: Yes, Your Honour.
86HIS HONOUR: We do not want to have any problem with you again. All right.
87ACCUSED: Thank you, Your Honour.
88HIS HONOUR: And I am confident that we will not. Thank you. Stand down.
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