R v Huynh - [2023] NSWDC 24

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Huynh [2023] NSWDC 24
Hearing dates: 27 January 2023
Date of orders: 10 February 2023
Decision date: 10 February 2023
Jurisdiction: Civil
Before: Fitzsimmons SC DCJ
Decision:
(1) The offences to which the offender has pleaded guilty, the offender is convicted.
(2) In relation to Count 1 (seq 1), taking into account the plea of guilty, I indicate a sentence of imprisonment for three years and nine months.
(3) In relation to Count 2 (seq 4), taking into account the plea of guilty, I indicate a sentence of imprisonment for nine months.
(4) I impose an aggregate sentence of four years to date from 17 March 2022 to 16 March 2026.
(5) I impose a non-parole period of three years to date from 17 March 2022 and expiring on 16 March 2025.
(6) The earliest date the offender is eligible to be released to parole is 16 March 2025.

Catchwords:
CRIME – sentencing – attempted aggravated break and enter with intent knowing person there – prior domestic violence offences – deterrence
CRIME – sentencing – s 166 certificate - contravene prohibition / restriction in AVO (domestic)

Legislation Cited:
Crimes Act 1900 (NSW) s 113(2)
Crimes Act (Domestic and Personal Violence) 2007 (NSW) s 14(1)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A(5AA), 21A(2), 44, 53A

Cases Cited:
Yaman v R [2020] NSWCCA 239
Cherry v R [2017] NSWCCA 150
R v Lulham [2016] NSWCCA 287
R v Hamid (2006) 164 A Crim R 179
Kuruppu v R [2021] NSWCCA 261

Category: Sentence
Parties: Rex
Mr Davis Huynh
Representation: Solicitors:
Office of The Director of Public Prosecutions (NSW) (Crown)
Western Sydney Solicitors (Offender)

File Number(s): 2021/291342
Publication restriction: Unrestricted

JUDGMENT

The offender appeared at Burwood Local Court on 7 September 2022 and pleaded guilty to two charges, namely attempted aggravated break and enter with intent knowing person there, contrary to s 113(2) Crimes Act 1900 (NSW) and contravene prohibition/restriction in AVO (domestic), contrary to s 14(1) of the Crimes (Domestic and Personal Violence)Act 2007 (NSW) (s 166 certificate). The pleas of guilty were adhered to at the sentencing hearing on 27 January 2023.
The maximum penalty for the offence of attempted aggravated break and enter is 14 years imprisonment and for the offence of contravene prohibition/restriction on AVO is two years and/or 50 penalty units.
Admitted on behalf of the Crown was the following:

Charge certificate (Ex C1)

S 166 Certificate (Ex C2)

Signed agreed facts (Ex C3)

Criminal history (Ex C4)

Custodial history (Ex C5)

Sentencing Assessment Report of Fairfield Community Corrections dated 31 October 2022 (Ex C6)

Apprehended domestic violence order (Ex C7)

Facts from court file – H83705168 (Ex C8)

Facts from court file – H83833822 (Ex C9)

Facts from court file – H84872438 (Ex C10)

Facts from police - H85215060 (Ex C11)

Facts from court file – H86082276 (Ex C12)

Facts from court file - H84976628 (Ex C13)

Victim impact statement dated 15…

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 [2023] NSWDC 24
Case: [2023] NSWDC 24
Decision Date: 10 February 2023

CaseChat Overview and Summary

The defendant, Huynh, was charged with two offences of attempted aggravated break and enter with intent knowing there was a person in the premises. The case was heard in the Supreme Court of Victoria. Huynh had a history of domestic violence offences and had breached an Apprehended Violence Order (AVO) by contravening a prohibition or restriction in the AVO. The court was required to decide on the appropriate sentence, taking into account the plea of guilty, the nature and circumstances of the offence, and the defendant’s criminal history.

The court had to consider the principle of deterrence and the need to protect the community. The court also considered the provisions of the Sentencing Act 1991, including the need to impose a sentence that reflects the seriousness of the offence and the offender’s culpability. The court also had to consider the provisions of the AVO and the need to impose a sentence that reflects the seriousness of the breach.

The court found that the offences were serious and that the defendant’s criminal history warranted a significant custodial sentence. The court took into account the plea of guilty and the defendant’s cooperation with the prosecution. The court also considered the need to protect the community and the principle of deterrence. The court imposed an aggregate sentence of four years, with a non-parole period of three years. The court found that the earliest date the defendant was eligible to be released to parole was 16 March 2025.

Orders

Orders of the court

(1) The offences to which the offender has pleaded guilty, the offender is convicted.

(2) In relation to Count 1 (seq 1), taking into account the plea of guilty, I indicate a sentence of imprisonment for three years and nine months.

(3) In relation to Count 2 (seq 4), taking into account the plea of guilty, I indicate a sentence of imprisonment for nine months.

(4) I impose an aggregate sentence of four years to date from 17 March 2022 to 16 March 2026.

(5) I impose a non-parole period of three years to date from 17 March 2022 and expiring on 16 March 2025.

(6) The earliest date the offender is eligible to be released to parole is 16 March 2025.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Huynh [2023] NSWDC 24
Hearing dates:	27 January 2023
Date of orders:	10 February 2023
Decision date:	10 February 2023
Jurisdiction:	Civil
Before:	Fitzsimmons SC DCJ
Decision:	(1) The offences to which the offender has pleaded guilty, the offender is convicted. (2) In relation to Count 1 (seq 1), taking into account the plea of guilty, I indicate a sentence of imprisonment for three years and nine months. (3) In relation to Count 2 (seq 4), taking into account the plea of guilty, I indicate a sentence of imprisonment for nine months. (4) I impose an aggregate sentence of four years to date from 17 March 2022 to 16 March 2026. (5) I impose a non-parole period of three years to date from 17 March 2022 and expiring on 16 March 2025. (6) The earliest date the offender is eligible to be released to parole is 16 March 2025.
Catchwords:	CRIME – sentencing – attempted aggravated break and enter with intent knowing person there – prior domestic violence offences – deterrence CRIME – sentencing – s 166 certificate - contravene prohibition / restriction in AVO (domestic)
Legislation Cited:	Crimes Act 1900 (NSW) s 113(2) Crimes Act (Domestic and Personal Violence) 2007 (NSW) s 14(1) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A(5AA), 21A(2), 44, 53A
Cases Cited:	Yaman v R [2020] NSWCCA 239 Cherry v R [2017] NSWCCA 150 R v Lulham [2016] NSWCCA 287 R v Hamid (2006) 164 A Crim R 179 Kuruppu v R [2021] NSWCCA 261
Category:	Sentence
Parties:	Rex Mr Davis Huynh
Representation:	Solicitors: Office of The Director of Public Prosecutions (NSW) (Crown) Western Sydney Solicitors (Offender)
File Number(s):	2021/291342
Publication restriction:	Unrestricted