R v Huynh

[2003] NSWSC 1066

CITATION:	R v Huynh [2003] NSWSC 1066
HEARING DATE(S):	28/07/03 - 31/07/03 01/08/03 04/08/03 - 07/08/03 11/08/03 - 15/08/03 18/08/03 - 22/08/03 25/08/03 24/10/03
JUDGMENT DATE:	21 November 2003
JURISDICTION:	Common Law Division Criminal List
JUDGMENT OF:	Kirby J
DECISION:	Penal servitude for 6 years; Non Parole Period 3 years 6 months
CATCHWORDS:	CRIMINAL PRACTICE & PROCEDURE - Manslaughter by Criminal Negligence - deceased died after fire - hardship on dependent - whether truly exceptional - offer of plea
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act, 1999
CASES CITED:	R v Palu (2002) 131 A Crim R 174 The Queen v Wirth (1975) 14 SASR 291 R v Edwards (1996) 90 A Crim R 510 R v Niga (unreported, CCA, 13.4.94) R v Day (unreported, CCA, 23.4.98) R v Wilmot (unreported, CCA, 20.7.94) R v Chan [1999] NSWCCA 103 R v Oinonen [1999] NSWCCA 310 R v Cardoso [2003] NSWCCA 15 R v Elliott (unreported, CCA, 14.2.91) R v Bryant [1999] NSWCCA 181 R v Tran [1999] NSWCCA 443 R v Lever [2001] NSWSC 1131 R v Olig [2002] NSWCCA 249 R v Blacklidge (unreported, CCA, 12.12.95) R v MacDonald (unreported, CA, 12.12.95)
PARTIES :	Regina Duan Tich Huynh
FILE NUMBER(S):	SC 70111/02
COUNSEL:	B Knox SC (Crown) T Golding (Accused)
SOLICITORS:	N Olender, sol (Crown - DPP) T Sellthambu, sol (Accused - LAC)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

DAVID KIRBY J

Friday 21 November 2003

70111/02 REGINA -v- DUAN TICH HUYNH

JUDGMENT ON SENTENCE

1 KIRBY J: Duan Tich Huynh was charged with the murder of his former wife, Tuoi Ngoc Huynh. Tuoi Ngoc Huynh died of thermal burns on 22 July 2002. On 25 August 2003, after a trial lasting some weeks, a jury found Mr Huynh not guilty of murder, but guilty of manslaughter. It remains for me to pass sentence. I must first determine the facts relevant to the sentencing discretion in a manner consistent with the jury verdict. Where the facts are adverse, they must be established beyond reasonable doubt. Where they favour Mr Huynh, it is enough that they should be proved on the balance of probabilities.

Background

2 Mr Huynh was born in Vietnam on 26 July 1974. He came to Australia when he was five years old. Having been educated in Australia, he returned to Vietnam for a holiday. He there met Tuoi Ngoc Huynh. They married in July 1996 and then lived with his parents at Bonnyrigg. Within a relatively short time his wife had a miscarriage. According to Mr Huynh, she then appeared to change. She returned briefly to Vietnam.

3 On 22 June 1999 a son, Patrick, was born. The relationship between Mr Huynh and his wife was already troubled by the time of his birth. After the birth, his wife again returned to Vietnam. She took Patrick with her. She remained in Vietnam for two months.

4 Having come back to Australia in February 2001, the relationship remained troubled. Tuoi Ngoc Huynh revealed that Patrick was not Mr Huynh's son, a matter later confirmed by DNA testing. Shortly after, she again left Australia with Patrick for Vietnam. On this occasion, she remained in Vietnam for one year. During that year Mr Huynh applied to the Family Court to dissolve the marriage. On 18 October 2001 the marriage was dissolved.

5 Nonetheless, Mr Huynh continued to love his wife and miss Patrick. He looked upon Patrick as a son. In March 2002, Mr Huynh returned to Vietnam. He persuaded his former wife to come back to Australia with Patrick. It was agreed that she should have her own flat and that they should live apart. Upon her return in April 2002, a flat was rented at Cabramatta. Mr Huynh often went to the flat. Indeed, he sometimes slept there, although in a bed separate from that of his former wife. She allowed him to store tools and other belongings at the premises, including model cars which he built as a hobby.

Incident

6 On 22 July 2002, Mr Huynh arrived at the flat at about 12 noon. He wanted to see Patrick and have a meal. A meal was prepared. During the afternoon he fell into argument with his former wife, as she worked in the small kitchen of the flat. During the course of the argument, Mr Huynh reached for a four litre container of methylated spirits. The container was kept on a bench in the kitchen. The methylated spirits was used by Mr Huynh to clean his model cars. He was angry. He removed the child-proof cap. With a criss-cross action, he splashed the methylated spirits around the kitchen. Some fell upon the deceased's top and some upon the kitchen floor. He dropped the container to the floor and kicked it. The methylated spirits escaped onto the floor.

7 At a time when he was approximately six feet from his former wife, Mr Huynh lit a cigarette lighter. He bent down. The naked flame came into contact with the fumes given off by the methylated spirits, and ignited.

8 I accept that the ignition happened suddenly, and unexpectedly, enveloping the clothing on Mr Huynh's arms. His arms and hands had also been splashed with methylated spirits in the course of the argument. The flames then spread very quickly across the floor to the corner of the kitchen where Tuoi Ngoc Huynh was standing. Her clothing caught alight.

9 Both immediately fled from the kitchen. Mr Huynh went to the shower and extinguished the flames. He suffered burns to his hands and arms, although they were not serious. His former wife, however, ran down the two flights of stairs to a central courtyard in the block of units. Within seconds Mr Huynh followed her into the courtyard. He used his body against hers in an effort to smother the flames. By the time he did so, her entire upper torso, her head and hair were alight. Their screams attracted the attention of neighbours. One called an ambulance. Others ran into the courtyard with buckets of water, which were then poured over Tuoi Ngoc Huynh by Mr Huynh and others. The flames were extinguished. However, soon after they had been extinguished, Tuoi Ngoc Huynh died. Mr Huynh carried her body to the front of the block to await the ambulance.

Issues of fact

10 The finding that Mr Huynh was not guilty of murder meant that the jury was not satisfied that Mr Huynh intended to kill his wife, or cause her grievous bodily harm. Nor had he acted with reckless indifference to human life, that is, a realisation that his actions would probably lead to her death.

11 The jury's verdict of manslaughter did not, of course, identify the basis upon which it had reached that verdict. The issue of manslaughter was left to them upon two bases; Manslaughter by an Unlawful and Dangerous Act, and Manslaughter by Criminal Negligence. Mr Golding, Counsel for Mr Huynh, urged the latter, suggesting that the moral culpability attaching to criminal negligence is less than that attracted by a finding of Manslaughter by an Unlawful and Dangerous Act.

12 Both findings are open. Mr Huynh's actions were plainly dangerous. A reasonable person in his position would have realised, even if he had not realised, that his conduct involved a significant risk of serious injury. Just as plainly, his actions were grossly negligent. His conduct fell so far short of the standard of care which a reasonable person would have exercised with flammable liquids, and involved such a high risk of death or really serious injury, that it plainly merited criminal punishment.

13 The moral culpability attaching to Mr Huynh's actions, to my mind, turns more on his purpose in doing what he did. Was his purpose to harm Tuoi Ngoc Huynh, not being an intention to cause grievous bodily harm? Was he trying to scare her, or was there some other purpose?

14 Mr Huynh was interviewed by the police shortly after the incident. According to the transcription of that interview, provided by the Crown, the following answer was given to the police:

"Q. 406 You said your intention was not to kill her, what was the intention ....
A. To hurt her."

15 That evidence was challenged by Counsel for Mr Huynh. Expert evidence was called. An alternative transcription was prepared based upon an enhanced recording of that part of the interview. That material, and close attention to the way in which Mr Huynh answered the police, made it plain, according to Counsel, that his words were in answer to an earlier question, and not to question 406. Elsewhere in the interview, he in fact denied that he had intended to harm his wife.

16 I accept that submission. Indeed, I think it likely the jury accepted that submission. I accept that Mr Huynh did not intend to harm the deceased. It is plain that he loved her and wished to be reunited with her and Patrick as a family. As I have said, I accept that the flames spread very quickly. I accept that Mr Huynh did not foresee that they would spread to that part of the kitchen where Tuoi Ngoc Huynh was standing, and envelope her.

17 What, then, was his purpose in lighting the cigarette lighter, when he knew there was inflammable liquid in the kitchen? Mr Huynh was repeatedly asked that question by the police. He could offer no explanation. Mr Huynh was angry. His Counsel, Mr Golding, urged that people, especially when angry, do behave irrationally, having no particular purpose in mind. His actions, it was suggested, were rather like kicking the dog, pointless, mindless, but not directed at his wife.

18 Mr Huynh had completed a double shift as a baggage handler at Qantas immediately before coming to the flat. He said that he was sick of arguing with his former wife. Mr Golding submitted that his actions can best be understood as a manifestation of his frustration at the continual arguments.

19 None of this provides a very satisfying explanation as to why Mr Huynh did what he did. He ignited the lighter. He then maintained pressure on the spring loaded mechanism as he bent down towards the floor, which he knew was covered with methylated spirits. What he may not have recognised is that fumes hover above the liquid, and that the fumes ignite, not the liquid. I think it likely that he intended to scare the deceased and that, to his surprise and horror, the fire exploded, enveloping him and thereafter rapidly spreading to the deceased.

20 I believe, therefore, that Criminal Negligence is a rather better description of his actions than Manslaughter by an Unlawful and Dangerous Act. His culpability is to be judged accordingly.

21 The Crown submitted that, in splashing methylated spirits onto the clothing of the deceased, Mr Huynh had acted out of gratuitous cruelty. Gratuitous cruelty, were it found, would be a circumstance of aggravation (s21A(2)(g) Crimes (Sentencing Procedure) Act, 1999) ("the Act"). I am not persuaded, however, that such a finding is justified.

Subjective case

22 Mr Huynh has no criminal convictions, apart from driving offences. He is the only child of elderly parents, who are devoted to him, just as he is to them. He is highly regarded, both within the Vietnamese community in Australia, and by his Australian friends. He worked for Qantas as a permanent employee. A number of his work colleagues gave evidence at the trial, speaking of his qualities as a worker, and of his good character. He has been offered work upon his release.

23 Mr Huynh has been in custody since his arrest on 22 July 2002. He has used his time in gaol well. Brother Patrick Lynch provided a letter which included the following:

"In all of his dealings with me, Duan has been open, honest and respectful. He comes from a family with deeply held ethical and religious values and he, too, shares these values deeply. He has spent many hours trying to address, come to terms with and work through the issues that have brought him into custody. He is his own severest critic. He realizes that he has much more work to do in addressing these issues, but he has begun well whilst in custody."

24 Brother Lynch concluded his letter as follows:

"In his dealings with the custodial officers, Duan has been respectful and cooperative. He has chosen his companions judiciously and has carefully avoided any of the disruptive behaviour that at times occurs in correctional centres. He has been an influence for good among his fellow inmates and he is respected by officers and fellow inmates alike. For the last six months Duan has been a delegate representing the inmates in regular meetings of the Inmate Delegate Committee with the Governor of the Correctional Centre."

25 Mr Huynh has shown deep remorse from the moment of the fire. A psychological report from Mr W John Taylor offers the opinion that Mr Huynh is unlikely to offend again. The Crown accepts that this is so. I likewise accept that the prospects of rehabilitation are excellent.

26 Remarkably, the parents of the deceased have shown great generosity towards Mr Huynh. Before the trial, they wrote to him in these terms:

" ... it far too late now for you to miss Tuoi and to feel the love for her and feel desperate for what has happened. We would rather that you took care of yourself and your health then you would be able to return to the family in the near future. We hold it dear to our hearts that you will be soon coming out from the punishment or will be allowed to get bail to stay out of the prison. We know from our hearts that you are not the gangster kind of person or a person with bad temper, and that you have never had any prior convictions or offences."

27 After Mr Huynh was convicted of manslaughter, the parents of the deceased addressed a letter to the Court, which included these words:

"Duan has been a good and hardworking citizen, who did not have any previous criminal offences, and was working for Qantas Airline in Australia.
He has been imprisoned for more than a year now as the result of the incident that led to the death of our daughter, and that happened due to his frustration and lack of consideration frequently found in young and inexperienced people.
Your Honour, due to the long distance between Vietnam and Australia, I cannot afford to come and attend the trial. I therefore, write this appeal to seek a reduction of the court sentence for Huynh Tich Duan so that he can soon return home to look after his elderly parents and bring up his little five-year-old son Patrick.
Patrick, who has lost his mother and whose father is jailed, should justly deserve your mercy."

28 The attitude of the victim, or in this case the victim's parents, should not influence the sentencing discretion. This is so whether the attitude is one of vengeance or, as in this case, one of forgiveness (R v Palu (2002) 131 A Crim R 174, per Howie J at 183/184). Nonetheless, the issue to which the parents draw attention, that is the care of Patrick, is relevant, and it is to that issue I now turn.

The circumstances of Patrick

29 Patrick, as mentioned, was born on 22 June 1999. He is now aged 4 years. His mother is dead. His biological father lives in Vietnam and has taken no part in his upbringing. Indeed, his biological father relinquished that role to Mr Huynh. Following Mr Huynh's arrest on 22 July 2002, Patrick has been cared for by others. He remained with Mr Huynh's parents until August 2003. His parents found it difficult to look after him. Mr Huynh's father is almost 63 years old. His health is not good. He underwent coronary by-pass surgery in 1994. He continues to suffer from cardiomyopathy. His physician, Associate Professor David Richmond, provided a report which included the following:

"I am concerned that Mr Huynh senior does not have the physical ability to take a paternal role for a long period of time, as his age and his cardiac condition, which would be expected to be progressive over time, will limit his ability to provide the sort of active parental care that would be expected for a young child of Patrick's age."

30 The health of his wife is no better. Cam Nhung Lam, Mr Huynh's mother, suffers from a number of complaints, including diabetes. In July 2000 she had a stroke, causing right sided weakness. Her doctor provided a report in which he said her prognosis is guarded, and that she was subject to a number of risk factors. His report included these words:

"In my opinion she will not be able to care for her 4 year old grandson fulltime. She may be able to look after him for 4 hours/day, 5 days/week."

31 In August 2003, the deceased's sister and her husband came to Australia. They thereafter returned to Vietnam with Patrick, accompanied by Mr Huynh's mother. Since their return, Patrick has been looked after by the deceased's parents, with the assistance of Mr Huynh's mother until her return to Australia on 17 October 2003. Together the families have formulated a plan for the welfare of Patrick. Arrangements will be made for Patrick's return to Australia in August 2004. Patrick is an Australian citizen. Were he to remain in Vietnam, it is unlikely that he would be sent to school. The circumstances of the maternal grandparents are said to be poor. Indeed, they have been assisted financially by Mr Huynh's parents. A social worker spoke to the deceased's father, Trinh Huynh, reporting that conversation in these terms:

"I ask for a lenient sentence in the interest of Patrick. His paternal grandmother brought him to Vietnam but we cannot afford to look after him. I will send him back to Australia to go to school early next year. I'm seventy, my wife is more than sixty. We are too old to look after ourselves so how can we look after our grandson? Our health makes it difficult also."

32 Mr Huynh had a close relationship with Patrick. It is the joint view of Mr Huynh, his parents and the maternal grandparents, that he should, upon his release, resume the care of Patrick. Unquestionably, his incarceration has caused hardship to Patrick, as well as those who have endeavoured to provide care for Patrick. In what circumstances is it appropriate to take that hardship into account on sentence?

33 The principle is not in doubt. Adopting the reasoning of Wells J in The Queen v Wirth (1975) 14 SASR 291 at 296, Gleeson CJ (with whom other members of the Court of Criminal Appeal agreed), said this: (R v Edwards (1996) 90 A Crim R 510 at 515)

"There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed, as senior Counsel for the respondent acknowledged in argument, it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full-time imprisonment."

34 The Chief Justice added: (at 515)

" ... the hardship must be so extreme as to lead a court to conclude that a sense of mercy or of affronted common sense imperatively demands that such hardship be taken into account."

35 Such cases were described as "truly exceptional" (at 516). In R v Niga (unreported, CCA, 13.4.94) Kirby P (with whom Gleeson CJ and Ireland J agreed) said this:

"In sentencing a young, single parent I believe that special consideration may properly be given to the impact of the sentence upon children or other dependants of such a prisoner. This is not to create a class of persons who are immune from punishment because of their dependants. It simply means that in looking at all the facts relevant to the circumstances of the prisoner it is appropriate and just to take into account the way the sentence on the prisoner will fall upon other persons who are innocent and on the community which must often then support them."

36 However, an examination of the cases where this principle has been applied, demonstrates that difficulties experienced by the family, even very significant difficulties, are not enough. In R v Day (unreported, CCA, 23.4.98) the Court dealt with a Crown appeal where the sentencing Judge had determined that the circumstances of the prisoner were exceptional. His wife had died some years before he had been sent to gaol for having supplied heroin. He was the sole carer of his three children aged between 12 and 15. Since his incarceration they had been looked after by their grandmother and an aunt. For a number of reasons, including the age of the grandmother, there was difficulty in providing such care. Yet Wood CJ and CL (with whom Sheller JA and Newman J agreed) said the circumstances could not be characterised as truly exceptional.

37 What, then, are the matters which are said to make the hardship in this case so extreme that it would be an affront not to recognise that hardship by moderating the sentence? First, Patrick is very young, 4 years (cf Wood CJ at CL in R v Day (supra)). Secondly, both sets of parents are old and have health problems. They each have expressed difficulty in coping with a child of Patrick's age. That difficulty is likely to get worse as they grow older. Thirdly, the geographical separation of the two families adds to the problem. Fourthly, there are compelling reasons, to do with Patrick's education, why he should return to Australia by August 2004. Hence, from that time at least, his care is likely to fall upon the shoulders of Mr Huynh's parents, neither of whom is robust.

38 I accept that there is very significant hardship by reason of Mr Huynh's incarceration. The case is perhaps on the borderline. I nonetheless find it difficult to characterise that hardship as "truly exceptional", as that phrase has been explained in R v Edwards and the cases which have followed.

39 That is not to say that the hardship is irrelevant. Indeed, in R v Edwards the Chief Justice, having found that hardship to an innocent third party was not truly exceptional, nonetheless then found special circumstances (s44(2) of the Act). The Chief Justice said this: (at 518)

"It has been submitted on behalf of the respondent, that, if the court should intervene, the case should be recognised as involving special circumstances relevant to the relationship between minimum and additional terms. I would accept that submission. The respondent's prospects of rehabilitation are such that she should serve, under supervision, a longer than usual part of her sentence in the community."

40 In R v Wilmot (unreported, CCA, 20.7.94), Finlay and Dunford JJ, sitting as a two Judge bench in the Court of Criminal Appeal, considered the hardship to the prisoner's family arising from his incarceration. They expressed the view that it was not "truly exceptional" within the Edwards principle. Nonetheless, they added the following comment:

"... that is not to say that family circumstances may not be relevant either alone or in conjunction with other matters as constituting special circumstances."

41 (See also R v Chan [1999] NSWCCA 103, per Smart AJ at para 39 (Sheller JA and Studdert J agreeing)).

42 Here, I believe it is appropriate to make a finding of special circumstances. As mentioned, his prospects of rehabilitation are excellent. Mr Huynh should serve a longer than usual period of his sentence in the community.

Offer to plead guilty

43 It was suggested on behalf of Mr Huynh that I should take account of an offer made to the Crown part way through the trial to plead guilty to manslaughter. Before the Jury, Mr Huynh had pleaded not guilty to murder. No indication was given in the presence of the Jury that he was prepared to plead guilty to manslaughter. However, discussions took place between the Crown and Counsel for Mr Huynh. During the second week, an offer to plead guilty to "involuntary manslaughter" was made and rejected by the Crown. In the result, Mr Huynh was convicted of what may be termed "involuntary manslaughter".

44 An offer, falling short of a formal plea, may be taken into account where the offer made matches the verdict ultimately given. In R v Oinonen ([1999] NSWCCA 310) Grove J (with whom Spigelman CJ and Sully J agreed) said this: (para 15)

"There has been a long practice, however, in this court and in trial courts to take into account the offer of a plea of guilty which matches the crime for which a person is ultimately convicted."
(See also: R v Cardoso [2003] NSWCCA 15).

45 The offer of the plea is an indication of remorse, and has some utilitarian value. Here, Mr Huynh's remorse is not in doubt. There was, nonetheless, some small utilitarian benefit in the offer, which I should take into account.

Sentence

46 Counsel for the Crown, as well as Counsel for Mr Huynh, drew my attention to a number of cases in which various prisoners had been sentenced for manslaughter ( R v Elliott (unreported, CCA, 14.2.91); R v Bryant [1999] NSWCCA 181; R v Tran [1999] NSWCCA 443; R v Lever [2001] NSWSC 1131, Bell J; R v Olig [2002] NSWCCA 249). However, limited assistance is provided by such authorities, for the reasons explained by Gleeson CJ in R v Blacklidge (unreported, CCA, 12.12.95), where the Chief Justice said this: (at p 4)

"It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability."

47 The Chief Justice, however, added these words:

"At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. ( R.v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 297 at 402)."

48 In R v MacDonald (unreported, CCA, 12.12.95), the Court (Gleeson CJ, Kirby P and Hunt CJ at CL) enlarged upon that comment with these words:

"Manslaughter involves the felonious taking of human life. This may involve a wide variety of circumstances, calling for a wide variety of penal consequences. Even so, unlawful homicide, whatever form it takes, has always been recognised by the law as a most serious crime. The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectations of that system."

49 Here, the circumstances of Tuoi Ngoc Huynh's death were horrifying. There was, as I have found, gross negligence on the part of Mr Huynh, but not an intention to harm, nor gratuitous cruelty. The act was unpremeditated. The subjective circumstances of Mr Huynh are strong. I have made a finding of special circumstances. He has been in custody since 22 July 2002 and his sentence should date from that time.

50 Duan Tich Huynh, I sentence you to imprisonment for 6 years to date from 22 July 2002 and expiring on 21 July 2008. I fix a non-parole period of 3 years 6 months. You will therefore be eligible for release on parole on 21 January 2006.

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Last Modified: 11/25/2003