JUDGES:	WINNEKE, P., BATT and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 August 2004
DATE OF JUDGMENT:	19 August 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 156

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CRIMINAL LAW – Sentencing – Intentionally causing serious injury.

Appeal against sentence of nine years with six and a half years non-parole period – Whether manifestly excessive.

Whether judge gave sufficient weight to: youth – rehabilitation prospects – Admissions and plea – Parole – Parity and totality.

Numerous previous convictions – Lengthy history of alcohol abuse.

Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.A. Elston	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Ms Cheri Lee	Anne Velos Criminal Law

WINNEKE, P.:

I will invite Nettle, J.A. to give the first judgment in this appeal.

NETTLE, J.A.:

The appellant, Louis Huynh, was born in Tonga on 12 August 1982 and was adopted by his father's parents. He did not meet his father until he was 12 years old and by that time his father had married another woman. He came to this country with his father and stepmother when he was 14 years old, but he did not stay with them for long. He moved out of their home after about twelve months and he began to live on the streets. He was, however, granted Youth Allowance and with the aid of that income he was enabled to finish his secondary education at the Sunshine Secondary College. He completed Year 12 at that school in 2001.

According to a report of Mr Ian Joblin, forensic psychologist, of 15 September 2003, the appellant has a significant problem with alcohol. He began drinking at around the age of 12 or 13 in response to social difficulties that he was facing at the time. Regrettably, he was the target of racial abuse at the school which he was attending in Laverton. He also found his father to be overly strict, and he experienced serious family problems after his mother walked out and went to live in Sydney. He got into company with a group of people from the Pacific Islands and he started to drink with them. He has since spent a considerable part of his relatively short life drinking to excess.

It is said that the appellant has a low threshold to tolerance when he is drinking. That means, apparently, that after drinking relatively modest amounts of alcohol he becomes easily provoked and interprets gestures such as smiles and grimaces as abuse, and he reacts with aggression. He is not without intelligence, however. According to Mr Joblin, the appellant presented well and was polite and co-operative, and certainly not psychotic, and, as has already been noticed, he completed Year 12 at school. But he has been unable, or unwilling, to curb his drinking or his propensity for violence.

He was first convicted, at the age of 13 years, of causing injury…

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 [2004] VSCA 156
Case: [2004] VSCA 156
Decision Date: 19 August 2004

CaseChat Overview and Summary

In the case of R v Huynh, the appellant challenged the sentence imposed by the lower court, which was a nine-year prison term with a non-parole period of six and a half years for the offence of intentionally causing serious injury. The dispute centred on whether this sentence was manifestly excessive, taking into account various factors such as the appellant’s youth, potential for rehabilitation, admissions and plea, parole eligibility, parity with similar cases, and the principle of totality. The appellant argued that the sentence was disproportionate given these considerations, while the Crown maintained that the sentence was appropriate and reflected the gravity of the offence.

The legal issues before the court involved the principles of sentencing, particularly the weight to be given to mitigating factors like youth and the likelihood of rehabilitation, as well as the necessity to consider admissions and plea, parole, parity with similar cases, and the overall sentence length. The court was required to determine whether the sentence imposed was manifestly excessive in light of these factors and if the trial judge had adequately balanced them in arriving at the sentence.

In dismissing the appeal, the court found that the trial judge had properly considered all relevant factors. The court emphasised that the appellant’s lengthy criminal history and persistent alcohol abuse were significant aggravating factors, which warranted a substantial custodial sentence. The judge had also appropriately assessed the appellant's prospects for rehabilitation, taking into account his admissions and plea, and had balanced these with the need to ensure the sentence was proportionate and adhered to the principles of parity and totality. The sentence was thus deemed to be within the range of appropriate penalties for the offence committed.

No further orders were made by the court.

Orders