Director of Public Prosecutions v Huynh, Tam
[2013] VCC 499
•26 April 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-00019
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TAM HUYNH |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 April 2013 | |
DATE OF SENTENCE: | 26 April 2013 | |
CASE MAY BE CITED AS: | DPP v HUYNH, TAM | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 499 | |
REASONS FOR SENTENCE
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Subject: Criminal law – plea – sentence
Catchwords: Armed robbery – intentionally cause injury – threat to kill – traffic in a drug of dependence – state false name and address – drive whilst suspended – deal with proceeds of crime – polysubstance abuse – prior criminal convictions – Verdins principles applied
Legislation Cited: s.18 of the Crimes Act 1958 – s.20 of the Crimes Act 1958 – s.75A of the Crimes Act 1958 – s.71AC of the Drugs, Poisons and Controlled Substances Act 1981 – s.145 of the Criminal Procedure Act 2009
Cases Cited:R v. Verdins [2007] VSCA 102 – Latif v. R [2013] VSCA 51
Sentence: Total effective sentence of 3 years and 10 months imprisonment with a non-parole period of 30 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T. Hoare | Ms S. Pattison (Office of Public Prosecutions) |
| For the Accused | Mr I. Crisp Mr J. Jassar | M+K Lawyers |
HIS HONOUR:
1 Mr Tam Huynh pleaded guilty to seven charges pursuant to Indictment Number C13380846. Mr Hoare appeared on behalf of the Director. Mr Ian Crisp appeared for Mr Huynh, and Mr Jassar appears today.
2 One needs to remind oneself that Mr Huynh is still only twenty-five. He was twenty-four at the time of these offences. The first of the charges is one of intentionally cause injury, which is a breach of s.18 of the Crimes Act 1958, for which the maximum penalty prescribed is ten years. You have then had two charges of threat to kill in regard to two separate individuals, a breach of s.20 of the Crimes Act 1958 for which the maximum penalty for each offence is ten years. Then at least by way of ranking within the Crimes Act 1958, the most serious offences are two charges of armed robbery, again against the same individuals, which are breaches of s.75A of the Crimes Act 1958, for which the maximum penalty prescribed by Parliament is twenty-five years, and then two further offences, traffic in a drug of dependence, offences against s.71AC of the Drugs, Poisons and Controlled Substances Act 1981, for which, for each offence the maximum penalty prescribed is fifteen years.
3 In addition to that, pursuant to s.145 of the Criminal Procedure Act 2009, Mr Tam Huynh has pleaded guilty to three summary charges, being state false name and address, for which the maximum penalty is five penalty units or one month, drive a motorcar while authority to do is suspended, twenty penalty units and/or four months' gaol, and deal with the proceeds of crime, an offence against the Crimes Act 1958, which involved the sum of $4,975, the maximum penalty of which prescribed is two years and/or two hundred and forty penalty units.
4 The prior offences of Mr Huynh, to which I will come back to later, while serious and longstanding, essentially are all drug related. Unfortunately, as this Court often sees, we now have the progression of such offences. However, Mr Huynh has taken a big step here into the big league. These are major offences for which serious penalties are prescribed.
5 As I remarked, Mr Huynh is now still only twenty-five. His life has been beset by drugs. He has not worked, as I understand it, for his whole life. I do not know what he thinks is going to happen in his life but this must, I would have thought, be a game changer, to use that phrase. Unless you give up drugs, unless you change your life and get out of the drug milieu, then unfortunately, you are destined to be in gaol for the rest of your life. That is the alternative you have, of course, is to end up dead at the end of a lane. So pretty great alternatives. It is a matter for you whether you change your life or not.
6 This Court and the comments it makes and the sentences it pass are totally irrelevant. Persons such as yourself, with such longstanding involvement in this type of activity, are street smart, totally aware of what you have been involved in, and it is quite clear that what we do here means nothing. Your alternatives that I have set out depend totally on you. One would hope that you change your lifestyle.
7 I must say, given your background and the circumstances, there are not great prospects for your rehabilitation. That is a difficult thing for this Court to say, because I have always had a positive view in regard to young persons, that young persons will rehabilitate themselves. I hope it occurs in your case.
8 The particular circumstances that led to these crimes are related to a girl or woman, Ms Quang, who was a girlfriend of your brother, Tuan. Essentially she had gone into a tenancy, and two weeks later she was unhappy about staying there and had sought the return of the bond. Neither you nor your brother had met the persons who had let her the room. However, to assist your brother's girlfriend, both of you decide to set out upon this escapade of criminality. The best summary of that is contained in the prosecutor's summary set out in Exhibit A, and I will read in short form from paragraph 9 on.
9 Tuan knocked on the complainant's bedroom door. He asked them to come into the lounge room and asked them for the money. You then came into the lounge room. You demanded the money be returned immediately or you threatened to hit Lee. You then approached Lam. Lee stood up. He was then hit by you to the left side of the face. The punch broke the lens of the glasses he was wearing and cut his left eyebrow, causing it to bleed. That is the circumstances of Charge 1. Fortunately despite the fears and the amount of blood, the laceration turned out only to be a small laceration to the left eyebrow and the eyes were not damage, albeit that he was required to seek assistance from an ophthalmologist at the Eye and Ear Hospital.
10 The threatening procedures continued. You then yelled at the female, Ms Lam, and produced a twenty centimetre long knife with a yellow handle. Your brother pushed her to the floor and you threatened to stab her. You sat opposite both of the victims, holding the knife with the blade pointing at them. Subsequently, while in that position, your brother and his girlfriend went into the bedroom and packed their belongings and also then started to pack and take belongings of the victims.
11 You then assisted your brother's girlfriend in taking various items while your brother kept the complainants in the lounge room under knifepoint. Ultimately the male victim was persuaded to enter by way of Internet, a transfer to Quang of the amount that this criminality was sought for, and that is a bond of $900. In addition, both of you threatened that because of your experience, that you had been in and out of prison, your knowledge of Vietnamese families in Victoria, that if they went to the police they would be killed and the police could not do anything about it. Those matters make up the charges of threat to kill.
12 The property is detailed in the prosecution opening that made up the proceeds or the property taken by way of the armed robbery charges. Ultimately, despite being scared of what was happening, through the aid of technology, the complainants established where their phone was and the police also utilised that application and as a result raided the premises that were living in. That is at 125 Alfreda Street, St Albans. You and your brother were not there but it is accepted that you were both living there at the time.
13 In your bedroom was found a series of accoutrements of trafficking in drugs, and subsequently, one hundred and ten grams of heroin and thirty-seven grams of amphetamine, which make up the balance of the charges in the Indictment. The seriousness of these crimes is demonstrated by the fact that insofar as the heroin is concerned you had one hundred and ten grams of heroin. The trafficable quantity is, according to Schedule 11, is three grams. The commercial quantity is five hundred grams. Equal quantities apply insofar as the amphetamine is concerned. Insofar as the summary charges are concerned, $4975 was also located.
14 Subsequently, on 20 August you were arrested in the street actually as a result of being apprehended driving a car. You had a record of interview in which you were quite uncooperative. As the learned prosecutor said, the serious offender provisions apply in regard to Charges 2 and 3, which are the threats to kill.
15 Victim impact statements were filed and, as agreed today, one hundred and forty-two days has been served by way of pre-sentence detention. Insofar as Exhibit B, that is the victim impact statement of Ms Lam, and Mr Le, at Exhibit C, it seems to me that their comments are justifiable. The circumstances in which they found themselves would terrorise anyone. I must say, however, that some of the broader issues set out in their records of interview are no doubt relevant to persons who have had the migrant experience from Vietnam and the difficulties of living in this country, and those matters cannot really be ascribed to your behaviour in these offences. However, the justifiable concerns from the way they were treated by you are matters that this Court must take into account.
16 I have already signed a disposal order, or a compensation order, in regard to Ms Lam in the sum of $700, and Mr Le in the sum of $1,928.
17 Insofar as the plea effected by Mr Crisp, essentially that plea concentrated on the report of the neuropsychologist, Ms Vowels. That became Exhibit 1. It is a report prepared by way of assessment. You were assessed on 27 December 2012 and the report is dated 30 December 2012.
18 It makes for interesting reading. As I say, it refers to the risk factors which have led to what was seen a acquired brain impairment. Ms Vowels says, on paragraph 2 of the first page:
"The most significant of these is the extensive history of substance abuse starting when he was about 14 years and consuming most of his life until recent times".
19 As I said earlier, your prior offences are quite concerning. They essentially, while not at the league that we are now concerned with show, going right back to the Children's Court in 2004, circumstances where you have been involved in trafficking of heroin. Every step that could be done and taken to try to change your behaviour in the youth environment was tried, all to no avail. Your possession and trafficking, I think in the youth offences, one, two, three offences of trafficking, and a number of possession of heroin. You then come up to the adult Court in January 2008 at Broadmeadows, again trafficking, possess heroin and possession of a controlled weapon, for which you get four months' gaol, again suspended. At Sunshine in July 2010 again you are up for possession and trafficking in heroin, and then the most recent prior, apparently, of which Mr Crisp has recently appeared insofar as you are concerned in the Magistrates' Court, was handed down in December 2010, at least the ones that relate to me, are priors in these matters, again traffic, use and possess heroin, for which you got a combined gaol and drug treatment order, as was then available.
20 As I say, such a history is terribly concerning to this Court. Unfortunately, such is associated with the milieu of the life that you lived, you were a user, a polysubstance of user of heroin, amphetamines, cannabis and, to a lesser degree, alcohol.
21 Associated with the life you have been leading, of course, are grave dangers. One of those came about, apparently, from a serious overdose you have had with heroin which required hospital admission and loss of consciousness. I have not had any formal proof of that matter. However, it seems to have been accepted by the neuropsychologist, and she raises the issue as to the risk of hypoxic brain damage.
22 You have also, apparently, been assaulted several times, and also have been involved in a serious motor vehicle accident in 2012 where you apparently lost control and ended up colliding with a building. Again, there was some period of brief blackout. While none of those matters are formally proved, they were all matters that concerned the neuropsychologist as to whether you were suffering and as a result thereof, some form of acquired brain injury.
23 You apparently did poorly academically. You were apparently treated somewhat harshly at home by your father's code of discipline and, unfortunately, your parents separated at fifteen. I should add that while no doubt that is a grievous and difficult experience for a young man to handle, I would not in any way cast any blame at the parents for the life of crime that has been indulged in by you since.
24 You, as Ms Vowels said, had a mood at interview which was concerningly cheerful, and with no obvious signs of depression. Insofar as the testing undertaken upon you, the probable range of your IQ is not high. You were considered well below the level of competence of most of the population and it was the view of Ms Vowels that this issue should be recognised when considering your offending behaviour, as well as what has clearly been a lack of capacity to benefit from previous steps taken by the Corrections Department and rehabilitation programs in regard to you.
25 As I say, Ms Vowels was particularly concerned as to an acquired brain injury, and at page 6 thought that the behaviours and the manner of your life and, in particular, the performance of these tests, showed an obvious difficulty insofar as executive operation is concerned. Ms Vowels suggested that your inappropriate and counter-productive behaviours come about as a result of either your substance dependence and/or the lifestyle and the impact that that has had upon your brain. Ms Vowels suggests that you seem powerless to prevent these matters, clearly, you are not.
26 Ms Vowels is of the view that your cognitive disabilities, albeit at a moderate level, in combination, result in a diagnosis of a moderate form of an acquired brain impairment, disexecutive syndrome with a minimum to moderate amnesic syndrome. Of course, all of these matters come about from the obvious disabling outcome of your prolonged substance abuse and all its associated risks, as I have referred to, the assaults and the overdoses.
27 Ms Vowels is concerned about your future insofar as custody is concerned and suggests that you need treatment for depression. It is obviously most important that that report is sent to the authorities in regard to your sentence.
28 Insofar as the plea was concerned Mr Crisp was at pains to stress the importance of me taking such into account insofar as the principles of Verdins are concerned, and I do so. As set out by the Court of Appeal in Latif v. R [2013] VSCA 51, the particular circumstances relevant to such a consideration do not require a formal determination that it is your condition, your neuropsychological condition, which caused this criminality. Indeed, I would make a finding that there is no cause or link between such, and nor did your condition in any way obscure your intent. It is clear that you decided to assist your brother and his girlfriend in getting the bond and then took the opportunity to indulge in this spate of criminality.
29 However, as the Court of Appeal says, and as the neuropsychologist has put, clearly, your long history is such that I must take that into account in comprehending your criminality. I have no doubt that your condition has impaired your ability to exercise appropriate judgment, has impaired your ability to make calm and rational choices or to think clearly, and impaired your ability to appreciate the wrongfulness of your conduct. That is the specific matters set out in Verdins in paragraphs (a), (b) and (d), such, I find, reduces the moral culpability and moderates the aspects of denunciation and general deterrence in this case that would otherwise be even more prominent in a sentence such as this.
30 I stress the term, "moderation". Given the severity of these crimes specific deterrence, punishment and general deterrence, of course, loom very large. These are serious offences. Your offending is based upon a history of failure, even from a young age, to benefit from assistance offered, you have lived an aimless life, concerned with your addiction and your capacity to service that addiction, being by trafficking within this community. While Verdins factors are taken into account, with a history such as yours their impact is reduced. You take a grave risk when you are involved in trafficking, and you must pay the consequences.
31 Insofar as the plea is concerned Mr Crisp stressed that the criminality on this night was, despite its seriousness, of short compass. Insofar as the armed robbery is concerned the value involved were not great and, indeed, it would not be high in the order of culpability of armed robberies. As a result of the injury inflicted there was no long term injury suffered.
32 The armed robberies and, indeed, all of these crimes could not be seen to be planned in any way, and the clearest example of that is that neither of you actually took weapons into the premises but availed yourself of the weapons that were in the premises.
33 It is also noted that your role was to assist your brother. While one understands the motivation, once in there you had no hesitation in becoming very much a part of these serious crimes. Mr Crisp also stressed that the sums which were stolen were not large, as part of the armed robbery, he also stressed the almost inexplicable circumstances where, in order to get someone's bond back of $900, you commit such crimes which exposes you to such serious risks to your liberty.
34 Mr Crisp essentially put that the matters were opportunistic. He stressed the plea of guilty was recorded almost as soon as was possible, the offending having happened in August 2012, the plea being finalised by January of the following year. He stressed in the circumstances the utilitarian benefit of your plea and the remorse that it demonstrated, and, of course, the importance of this Court, even with a person of your background, hoping, perhaps against hope in your case, but not losing sight of the importance of rehabilitation for a young man. It is hoped, of course, that you can rehabilitate.
35 It should not be lost sight of, the seriousness of the drug offences in this matter. As expressed in R v. Pidoto & O’Dea [2006] VSCA 185, the Court of Appeal make it clear that in this case the seriousness is based on a quantity basis, and I have already demonstrated insofar as the two offences that you are concerned, that the quantity was of a high order, albeit that the trafficking was of a simpliciter nature.
36 It has been necessary to balance all of the above factors, and it has not been the easiest of tasks. However, doing as best as I can, Mr Huynh, if you would stand up, please.
Sentence
37 On Charge 1, you are sentenced to a period of imprisonment of four months.
38 On Charge 1, you are sentenced to a period of imprisonment of nine months. That makes you a serious violent offender.
39 Pursuant to the provisions of s.6DA of the Sentencing Act 1991, the protection of the community becomes the principal basis of sentencing. However, there is no submission from the prosecution that I should make any other order than is appropriate to the criminality in this matter and nor do I do so.
40 The only other matter is the order as to cumulation. Given the circumstances of this case and the number of offences, the intent of Parliament that the full cumulation be effected insofar as Charge 3 is concerned, will not be affected because of the principle of totality, although I do not lose sight of the intent of Parliament in this regard.
41 Insofar as Charge 3 is concerned, you are sentenced to a period of imprisonment of nine months. It is to be noted in the records of this Court that you were sentenced in regard to Charge 3 as a serious violent offender.
42 In regard to Charge 4, you are sentenced to a period of imprisonment, that is the first of the armed robbery charges, of two years.
43 With regard to Charge 5, a period of imprisonment of two years.
44 Coming to the drug charges, in regard to Charge 6 involving the heroin, given the quantity involved the appropriate sentence I had determined is a period of two years imprisonment.
45 Insofar as the last charge, 7, you are sentenced to a period a period of imprisonment of nine months.
46 Insofar as the summary offences for the stating false name and address, one week, for the driving whilst suspended, one month, for the dealing with proceeds of crime, four months.
47 Coming then to the determination of an aggregate sentence, using Charge 4 as the base of two years, I order that the following periods be cumulated upon Charge 4 and each other. Insofar as Charge 2, three months of that sentence, in regard to Charge 5, six months of that sentence, in regard to Charge 6, nine months of that sentence, in regard to Charge 7, three months of that sentence, and in regard to the summary matter, deal with the proceeds of crime, one month of that sentence, making a total effective sentence of three years and ten months imprisonment.
48 I have determined that the period that you should serve before being eligible for parole is thirty months imprisonment.
49 Pursuant to s.18 of the Sentencing Act 1991, I declare the one hundred and forty-two days that you have served by way of remand is deemed to be service of this sentence and a declaration to that effect be recorded in this Court.
50 I declare, pursuant to s.6AAA of the Sentencing Act 1991, that had you not pleaded guilty I would have sentenced you to a period of imprisonment of five years with a minimum of three years and four months.
51 Essentially for you, in layman's terms, Mr Huynh, on the top you have got three years and ten months. You have got to serve two years and six months, thirty months, before being eligible for parole, and you have already done one hundred and forty-two days. All I can say is you have got to change your ways because it is not much use you come out and go straight back on to your addictions, otherwise you are going to be straight back in, and these penalties are only going to get larger and larger.
52 As I say, if you do not turn up dead somewhere you will end up with large biceps and walking circles in gaol with all the other mugs, but that is totally a matter for you.
53 Yes, Mr Prosecutor, any matters that I have not attended to or have inappropriately attended to or got wrong in some way?
54 MR HOARE: No. Your Honour, I am just checking whether, Your Honour would make an order on the licence in relation to the drive whilst suspended.
55 HIS HONOUR: No, I do not intent to make an order.
56 MR HOARE: Yes. Your Honour, I do not have anything to add, thank you, Your Honour.
57 MR JASSAR: Yes, sir. Thank you, Your Honour.
58 HIS HONOUR: Yes, Mr Jassar will come down and talk to you about the circumstances, no doubt, and to your mother, but you have got to change your life, otherwise you are just a loss to the community and your mother. Yes, take the prisoner away.
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