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R v Huynh

R v Huynh

Case [2000] NSWCCA 18 14 February 2000

Public Order Offences

Criminal Law

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CITATION: R v HUYNH; R v LAM; R v TA [2000] NSWCCA 18

FILE NUMBER(S): CCA 60442 of 1999; 60443 of 1999; 60444 of 1999

HEARING DATE(S): 14 February 2000

JUDGMENT DATE:
14 February 2000

PARTIES :

Regina
Ding Khoung Huynh
Tuan Van Lam
Non Huu Ta

JUDGMENT OF: Spigelman CJ at 1; Hulme J at 2; Smart AJ at 40

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL
OFFICER : Viney DCJ

COUNSEL : Crown: MC Marien
Huynh: SJ Odgers
Lam: PG Hogan
Ta: JS Stratton

SOLICITORS: Crown: SE O'Connor
Huynh: TA Murphy
Lam: Hovan & Co
Ta: TA Murphy

DECISION: Appeal dismissed in each case.

IN THE COURT OF
CRIMINAL APPEAL
No: 60442/99
60443/99
60444/99

SPIGELMAN CJ
HULME J
SMART J

Monday, 14 February 2000

REGINA -v-Ding Khuong HUYNH
REGINA -v-Tuan Van LAM
REGINA -v-Non Huu TA
JUDGMENT

1    SPIGELMAN CJ: I invite Justice Hulme to deliver the first judgment.

2    HULME J : On 16 June 1999 the above named Respondents were sentenced by his Honour Judge Viney in respect of charges of affray to which they had pleaded guilty on 27 April 1999.

3    By notices dated 5 August 1999, the Director of Public Prosecutions has appealed against the orders made upon the ground that the sentences were inadequate. Notice that the Director was considering appeals had been forwarded by letter dated 16 July 1999, although that forwarded to Mr Ta was returned unclaimed.

4    On the evening of 21 June 1996, there was a brawl in New Canterbury Road, Petersham in the vicinity of a roller skating rink between two groups of young men mostly of Vietnamese origin. Eye witnesses estimated that up to thirty persons were involved. One youth was stabbed to death, a second sustained a broken leg and other injuries, and the Respondent Huynh sustained a knife, or similar, wound to his left wrist. Judge Viney accepted the description of the incident as a "frightening melee".

5    The statement of facts which was tendered by the Crown without objection records that the Respondents were among a group of ten to fifteen young men who had met at a house in Silverwater on the evening in question. Another offender, a Mr Diep, had produced a bundle of some ten machetes and placed them on the floor, near the door of the house. However, the statement went on to say that there was no evidence that any of the Respondents had a weapon during the affray, no evidence that any of them was involved in the attack on the deceased, and that the Crown accepted pleas to affray on the basis that each Respondent was involved to some extent in the brawl. In fact each had been charged with manslaughter and malicious wounding in addition to the charge of affray and their pleas to the last mentioned charge were accepted in full satisfaction of the indictment.

6    Other material tendered by the Crown as relevant to all Respondents and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Huynh

Details

AGLC: R v Huynh [2000] NSWCCA 18
Case: [2000] NSWCCA 18
Decision Date: 14 February 2000

CaseChat Overview and Summary

In the case of R v Huynh, the defendants Ding Khoung Huynh, Tuan Van Lam, and Non Huu Ta were appealing against their sentences for charges of affray. The Director of Public Prosecutions appealed against the sentences, arguing that they were inadequate. The defendants had pleaded guilty to the charges, and the sentencing judge accepted that they were part of a larger group that participated in a brawl in which one person was killed and others injured. The defendants were each sentenced to a recognizance with conditions, instead of imprisonment.

The legal issues before the court were whether the sentences imposed were inadequate and whether the sentencing judge misapprehended the effect of the defendants' pleas. The court held that the sentences were not inadequate, and the sentencing judge's approach to the defendants' pleas, while arguably incorrect, did not result in a harsher sentence than what the court would have imposed. The court also held that the defendants' limited involvement in the brawl and lack of premeditation meant that they should not be held responsible for the full extent of the violence and harm caused. The court exercised its discretion not to interfere with the sentences imposed on the defendants, and the appeals were dismissed.

Orders