Huynh v Police No. Scciv-03-1236

HUYNH v POLICE
[2003] SASC 414
Magistrates Appeal

Gray J This is an appeal against sentence.
Background
Lee Van Huynh was convicted in the Magistrates Court on 7 March 2002 for the offences of act likely to cause harm and driving a motor vehicle without consent. He was sentenced to a 16 month term of imprisonment. That sentence was suspended on Mr Huynh entering into a supervised bond to be of good behaviour for a period of 2 years. Mr Huynh failed to comply with the supervision requirements of his bond.
On the application of a member of the police for enforcement of the bond, a warrant was issued for his arrest. Mr Huynh appeared before a Magistrate on 6 August 2003. An affidavit from his Community Corrections Officer outlined that Mr Huynh had failed to attend two scheduled appointments and had failed to report at any time following 22 November 2002. The magistrate revoked the order of suspension of the sentence. The magistrate observed:
The defendant was given a 16 months suspended sentence for offences of act likely to cause harm and driving a motor vehicle without consent. It is clear from the sentence that was imposed that those offences were regarded seriously by the sentencing court.
The defendant was given the benefit of the leniency of a suspended sentence with very strict conditions one of which was that he be under the supervision of a probation officer for two years and obey all lawful directions of that probation officer. It is clear from what the defendant has told me that he did not take that obligation seriously. It is clear from what he has told me that he did not do anywhere near enough to maintain contact with his probation officer or to cooperate with his probation officer as was required by the condition of his bond. It is clear from the discussion that we have had this afternoon that he treated the obligations to be under supervision and to cooperate with the probation officer with disdain.
The defendant put other priorities ahead of that obligation. That was not the court’s intention. If the court had realised that he was going to treat that obligation as casually as he did, the sentence would not have been suspended. It was suspended when he promised to be under supervision and to comply with the obligations involved in that. He broke his promise.
I revoke the suspension of the sentence of 16 months and I fix a non-parole period of six months.
The Appeal
When the appeal was called on for hearing, counsel then appearing for Mr Huynh submitted that the magistrate had not properly attended to his obligations with respect to the rights of unrepresented parties before the court. It was further submitted that the magistrate had been discourteous and rude. A report was received from the magistrate with respect to these matters.
The allegations have been unequivocally withdrawn by counsel for the appellant. There was no substance to the allegations. The allegations should not have been made.
Extension of Time
The appellant’s notice of appeal was lodged out of time. An explanation for the late lodgement was provided by counsel. It is to be understood from that information that the delay was not due to any conduct of the appellant.
The appellant appeared unrepresented on 6 August 2003 when the magistrate revoked the order for suspension. After Mr Huynh was taken into custody his mother contacted a solicitor. The solicitor later attended the prison to see the appellant and took instructions. The solicitor sought further information from the court including the reasons for judgment and other file paperwork. Upon receipt of that material the solicitor forwarded the documentation to counsel. Counsel was delayed in his consideration of the matter.
The delay clearly occurred through no fault of the appellant. Further material received on the appeal disclosed strong reasons for interfering with the conclusions of the magistrate. It is apparent that Mr Huynh was sentenced on an incorrect factual basis. Counsel for the crown did not oppose an extension of time. There is no obvious prejudice to the crown if leave were to be granted. It is appropriate to extend time in this case.
Submissions on Appeal
During the appellant’s submissions before this court, it became apparent that there may have been a medical explanation for Mr Huynh’s conduct. The appeal was adjourned. A psychiatric report was obtained from Dr Jules Begg. The report provides an explanation for Mr Huynh’s non-attendance to his bond obligations.
Dr Begg’s opinion is that Mr Huynh continues to suffer from a major depressive illness. His failure to attend to the conditions of his bond were a direct manifestation of this condition.
In my opinion Mr Van Huynh suffers from a Major Depressive Disorder which was precipitated by the death of his father…There are a number of factors present in the history that account for why Mr Van Huynh has developed a pathological reaction of Major Depressive Disorder when faced with the grief of the loss of his father.
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At a deep psychological level it is my belief that Mr Van Huynh fears that he was responsible for the death of his father…I strongly suspect the anger he has expressed towards his family and friends, and indeed to himself through the onset of depression, is anger which more properly could be directed towards his father…His depression therefore acts as a means of avoiding this unconscious idea. Many aspects of his life could now be considered a self-punishment. For example his alienation from family and friends, non-attendance at Correctional Service appointments and failing to ensure adequate representation in Court, all have a final outcome in ensuring he is more miserable in his life. Such misery or punishment serves to alleviate the guilt he feels for his father’s death…In a similar fashion, his lack of utilisation of mental health resources, his denigration of the effects of treatment on his brother and his disregard for the Correctional Service staff and his perception of the Magistrate involved in his Hearing, suggest a mental state in which he does not believe that parental figures can be trusted.
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Factors that are favourable for his prognoses is that he has re-established a positive relationship with his mother, has been able to maintain consistent employment and stable accommodation. His further therapy should include an anti depressant medication, but such medication will not be able to be introduced until he gains sufficient trust with his treating therapist. In terms of psychological assistance, I would recommend referral for Grief Counselling and once this is underway, then refer him to a psychiatrist for review of his depressive symptoms and introduction of an anti depressant. Prior to his father’s death he described himself as a timid person, and part of his difficulties lie in an inability to express his feelings directly without recourse to anger towards others. Cognitive Behaviour Therapy and Assertiveness training can be of assistance.
Counsel for the Crown consented to the report being received as further evidence on the appeal.
It is apparent that the magistrate was not provided with all relevant evidence regarding Mr Huynh prior to sentence. As a result, Mr Huynh was sentenced on a materially incomplete factual basis. It is appropriate that he be re-sentenced in the light of the further information received by the court. Counsel for the Crown did not oppose this course.
Personal Circumstances
Mr Huynh was born in Australia. He is 20 years of age. When aged five his parents separated. He continued to live with his mother and sisters. His mother later remarried. He saw his father only infrequently until his teenage years. Upon leaving school he went to live with his father. In January 2001 he witnessed his father attempt suicide. His father later died in hospital after the decision was made to discontinue life support.
Following the death of his father Mr Huynh turned to alcohol. He began fighting with his family. The arguments culminated in him being asked to leave his mother’s home. The details of his medical history and depressive mental condition have been referred to earlier in these reasons.
Prior to being taken into custody and subsequent to his release from prison Mr Huynh has worked as a casual machinist. A favourable work reference has been provided by his employer who expressed a desire to retain Mr Huynh as an employee.
Mr Huynh spent approximately four weeks of his six month non-parole period in custody following the revocation of the suspended sentence. In the circumstances, it is inappropriate for Mr Huynh to serve further time in custody for the breach of bond.
The appeal is allowed. Proper grounds exist to excuse Mr Huynh’s breach of the conditions of his bond. The order of the magistrate revoking the suspended sentence is set aside.
Pursuant to section 58(3)(b)(i)(A) of the Criminal Law (Sentencing) Act 1988 (SA) the term of the bond entered into by Mr Huynh on 7 March 2002 is extended for a period of 12 months. The bond will therefore continue until 7 March 2005. The conditions of the bond are varied pursuant to section 58(3)(b)(i)(D) to include that Mr Huynh:
-be of good behaviour, and comply with all the other conditions of this bond.
- be under the supervision of a community corrections officer until 7 March 2005 and obey all the lawful directions given by the community corrections officer.
- attend all courses and programs as directed by the community corrections officer, particularly courses relating to drug and alcohol abuse and anger management and also medical treatment including psychological and psychiatric treatment.

[2003] SASC 414

16 December 2003