R v Huynh and Phung

[2001] NSWSC 357

CITATION:	R v Huynh and Phung [2001] NSWSC 357 revised - 15/05/2001
FILE NUMBER(S):	SC 70089/99; 70215/99
HEARING DATE(S):	19/2/01-22/2/01 25/2/01 27/02/013/5/01
JUDGMENT DATE:	3 May 2001
PARTIES :	Regina Thang Minh Huynh Johnny Phung (aka Luangrathbandit)
JUDGMENT OF:	Wood CJatCL at 1

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :

COUNSEL :	Crown: W. Dawe QC Huynh: R. McCrudden Phung: R. Webb
SOLICITORS:	DPP Kalmath McGee I. McIntyre
DECISION:	Johnny Phung; a) For the offence of robbery when armed with a dangerous weapon of John Huu Vinh Tran, I sentence you to a fixed term of imprisonment for three years to date from 20 December 1998. I decline to set a non-parole period in relation to the sentence because of the sentence which I next impose;; b) For the offence of murder, taking into account the three offences on the Form 1, I sentence you to imprisonment for thirteen years to commence from 20 December 1999 and to expire on 19 December 2012, such sentence to be served partly cumulative upon and partly concurrently with the sentence for the armed robbery. I set a non-parole period of eight years, similarly to date from 20 December 1999 and to expire on 19 December 2007. The earliest date on which you will be eligible for release on parole will, accordingly, be 20 December 2007. ; Order under s19 of the Children (Criminal Proceedings) Act 1987 that you serve so much of your sentence until you attain the age of twenty-one years in a Juvenile Justice Centre. ; Thang Minh Huynh; a) For the offence of robbery when armed with a dangerous weapon of John Paul Nguyen, taking into account the nine months already served upon remand for the present offences, I sentence you to imprisonment for a fixed term of three years and three months. Such sentence is to commence on 16 September 2005, that is, on expiry of your existing non-parole period, and is itself to expire on 15 December 2008. I decline to set a non-parole period for that sentence by reason of the sentence I next impose. ; b) For the offence of accessory after the fact to murder, taking into account the offences on the Form 1, and again taking into account the remand custody, I sentence you to imprisonment for three years and three months to commence on 16 June 2007 and to expire on 15 September 2010. That sentence is to be served partly cumulatively upon and partly concurrently with the sentence for the armed robbery and similarly partly cumulatively upon and partly concurrently with the balance of the pre-existing sentence. I fix a non-parole period of 21 months to commence on 16 June 2007 and to expire on 15 March 2009. The earliest date on which you will be eligible for release on parole will accordingly be 16 March 2009.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

WOOD CJ AT CL

THURSDAY 3 MAY 2001

70089/99 - REGINA v THANG MINH HUYNH
70215/99 - REGINA v JOHNNY PHUNG (AKA LUANGRATHBANDIT)
SENTENCE

1   HIS HONOUR: The prisoners, Johnny Phung, also known as Johnny Luangrathbandit, and Thang Minh Huynh appear for sentence in relation to the following charges to which they have pleaded guilty.

Johnny Phung

a) The murder of Hiep Van Nguyen on 19 December 1998, at Liverpool, (s18(1)(a) Crimes Act 2000);
b) The robbery, when armed with a dangerous weapon, of John Huu Vinh Tran, on the same date and same place, (s97(2) Crimes Act ).

2   He asks that when sentenced for the offence of murder a further three offences be taken into account on a Form 1. Each relates to offences committed at the same place, the EPI Leisure Centre at Liverpool and on the same date as the offences on the indictment. They include offences of armed robbery in company, committed upon Van Tri Nguyen, and upon John Paul Nguyen; and possession of an unauthorised firearm, namely the .22 calibre pistol used in the murder and armed robberies.

Thang Minh Huynh

a) Accessory after the fact to the murder by Phung of Hiep Van Nguyen (s349(1) Crimes Act );
b) The robbery, when armed with a dangerous weapon, of John Paul Nguyen, at Liverpool on 19 December 1998, (s97(2) Crimes Act ).

3   He also asks that three further offences committed on the same date and place be taken into account on a Form 1 when he is sentenced for the offence of accessory after the fact to murder. They include an offence of accessory after the fact to the robbery committed by Phung, while armed, of Van Tri Nguyen; an offence of robbery in company, while armed, of John Huu Vinh Tran; and an offence of possession of the unauthorised firearm that had been used in the murder and armed robberies.

4   Each prisoner has been in custody since 20 December 1998. When they were initially arraigned in this court, each pleaded not guilty to the charges then preferred. Between 19 February 2001 and 26 February 2001, a number of issues were determined pretrial in relation to the admissibility of the electronically recorded interviews in which they had participated, and also in relation to the possible severance of the counts in the indictment and the separation of their trials. Arising out of the inquiry upon the voir dire, rulings were made excluding the tender of certain portions of the evidence which the Crown wished to lead, including the Phung ERISPs. Severance of the counts and separation of the trials was refused.

5   After these matters were determined, the matter was stood down until 2pm on 26 February in order to empanel a jury. Counsel for the prisoners then indicated that pleas of guilty would be entered to separate indictments framed in somewhat different terms from that upon which the prisoners had originally been jointly indicted.

6   On 27 February 2001, their pleas were entered, and the proceedings were then stood over to 12 April 2001. On that day, further evidence and submissions were received, and the proceedings were stood over until today for sentence.

7   It may be observed that originally the two prisoners had been indicted jointly with the robbery of John Paul Nguyen when armed with a dangerous weapon; with the same offences in relation to John Huu Vinh Tran and Van Tri Nguyen; and with the murder of Hiep Van Nguyen. It was to that indictment that they had pleaded not guilty at arraignment.

8   The pleas which were later offered to the individual indictments, and accepted by the Crown, more accurately reflected the nature of their individual criminality in the series of criminal acts which they committed at the EPI Centre on 19 December 1998, and in particular reflected the fact that the offence of murder charged was one of felony murder rather than one of specific intent.

9   In order to determine the objective criminality involved, it is necessary to make some further findings upon the basis of the evidence tendered before me in the sentencing proceedings.

Facts

10   As the history recorded so far reveals, each of the offences charged or included in the Form 1 documents was related to events which occurred at the EPI Centre at Liverpool on 19 December 1998. These premises were operated as an amusement centre, containing pool tables and video games. They were routinely attended by young persons, many, but not exclusively, of Vietnamese and Cambodian descent, who had an interest in these forms of entertainment. They were the subject of video surveillance which captured the images of the offenders while they were present at the premises. The offences occurred at two different times that day, being separated by about five and a half hours.

Armed Robberies of John Paul Nguyen and John Huu Vinh Tran at 5pm

11   Each of the victims, John Paul Nguyen and John Huu Vinh Tran, were present at the centre watching others playing the games when they were approached by the two prisoners. Huynh asked Tran to come outside to see a friend. Tran declined the invitation. Phung produced a .32 calibre weapon wrapped in a towel. Tran and Nguyen each saw part of the object which he held. It was aimed at Tran. Assuming it to be a firearm, they walked towards the exit.

12   Near the front of the premises, Huynh said that he was going to check Nguyen's pockets and that if he had anything he would shoot him. Nguyen felt scared and produced an Ericsson brand 768 mobile phone and a wallet which Huynh took from him. The wallet contained a very small amount of cash and some personal cards and papers.

13   Phung pulled an 18 carat gold chain (with an attached jade pendant) from Tran's neck and took from him his Guess brand wristwatch and his Nokia 6110 mobile phone. Both prisoners then left the premises.

The Murder of Hiep Van Nguyen and the armed robbery of Van Tri Nguyen at 10.30pm

14   At about 10.30pm the prisoners returned to the premises where they saw the two further victims, who were brothers-in-law, and who were playing a video game. There were between fifteen to twenty other young persons present.

15   The prisoners sat near the victims. Phung grabbed a gold chain necklace which Van Tri Nguyen was wearing and demanded that he give it to him. Van Tri Nguyen resisted, grabbing the chain himself. He noticed Phung holding a firearm which was pointed toward him. At that stage he ceased to resist. Van Tri Nguyen said that he would give up the necklace. Huynh grabbed hold of it and pulled on it.

16   Hiep Van Nguyen stood up at that point to help his brother-in-law. Phung's firearm discharged and Hiep Van Nguyen was struck in the chest with a single shot. It was to prove fatal.

17   At about the time that the shot was fired, Van Tri Nguyen's chain necklace broke and was taken by one of the prisoners. Also taken by one of them was Van Tri Nguyen's GF788 mobile phone. Hiep Van Nguyen was not robbed but he lost his life as a result of the shooting.

The Events Following These Offences

18   The two prisoners were seen to run to a red Honda Civic sedan which had been parked nearby and to drive away. This vehicle was later stopped by the police in the Cabramatta area. At that stage, Huynh, who was the driver, was found to be wearing a gold necklace. Phung was a passenger in the vehicle.

19   Acting on information provided by Huynh, police executed a search warrant at his home where they found the Browning pistol used in the murder, John Paul Nguyen's wallet still containing his personal papers, Huu Vinh Tran's Nokia mobile telephone and Van Tri Nguyen's Ericsson mobile phone.

20   Subsequently, when police executed a search warrant at the Kariong Detention Centre where Phung was detained, they found among his property the Ericsson mobile phone of John Paul Nguyen.

21   The Crown case in relation to the armed robbery offences, in the various forms charged either by indictment or included in the respective Form 1 documents, was one of common enterprise - it being alleged that each offender went to the EPI Centre as part of a preconcert to rob patrons of their property while armed with a pistol. Depending on whether it was the prisoner who the Crown demonstrated had been the person who actually seized the item of property involved, so the offence was charged against him in the indictment. Otherwise, where it was the other offender who actually seized the item or where the Crown was unable to show which of the two offenders had taken it, so those offences were included in the Form 1 documents.

22   So far as the murder was concerned, Huynh's involvement was confined to the assistance which he had provided in driving Phung away from the scene and in secreting the handgun used in the shooting at his home. In this respect, the case presented against him involved considerably less in the way of objective criminality than that initially proffered.

23   The Crown case, at arraignment, had been pursued upon the basis of common purpose, the use of the gun to kill or to cause grievous bodily harm being contemplated as a possible incident of the armed robbery upon which the two offenders had embarked: Johns (1980) 143 CLR 108.

24   Having regard to the concessions which the Crown made in reformulating the indictments, and in dealing with some of the offences on a Form 1 in a way that involved less aggravated offences than those originally charged, the pleas of guilty may be assumed to have been timely, in the sense that they were entered as soon as the alternative charges were offered.

25   It is also relevant that in relation to Phung the strength of the Crown case was diluted to a degree once the two ERISPs in which he had participated were ruled inadmissible. It cannot, however, be said that there was not a reasonable case, if not a strong case, remaining against each offender in view of:

(a) the fact that Van Tri Nguyen knew and recognised Huynh;
(b) the observations made of the offenders running to the Honda Civic in which they were later found by police;
(c) the video surveillance clip which recorded their presence at the scene; and
(d) their respective possession of the stolen items and the handgun, which was shown by testing of the bullet recovered from the body of the deceased, and of the spent cartridge case found at the scene, to have been the murder weapon.

Other Matters of Relevance to the Objective Criminality Involved

26   Phung gave evidence to the effect that the murder had been unintended in that although he had taken the handgun into the EPI Centre in a loaded and cocked state, he had not intended to use it to shoot anyone. On his account, he walked over to Van Tri Nguyen to see whether he could obtain some heroin on credit.

27   He said that he was abused by Van Tri Nguyen as a worthless drug user, that he lost it, and that he pulled out the gun and seized his necklace. There was something of a struggle and he became fearful that there were others present who might intervene. Hiep Van Nguyen, who came over to assist Van Tri Nguyen, on his account, punched him. It was at that stage, he said, that the weapon, which he had intended to discharge towards the floor, went off in the direction of Hiep Van Nguyen, causing his death.

28   The plea to the murder count was offered, and accepted, upon the basis that the weapon was used in the course of the robbery, in order to discourage resistance and without any intention of shooting Hiep Van Nguyen.

29   Although this version of events did not entirely accord with the witness statement of Van Tri Nguyen, it was barely challenged in cross-examination by the Crown, and Van Tri Nguyen was not called by the Crown as a witness in the sentencing proceedings. In those circumstances, I will accept its veracity and sentence Phung accordingly.

30   I find in relation to the other offences that each of the prisoners went to the EPI Centre, on the two occasions that it was visited by them that day, with the intention of carrying out robberies in order to obtain property which they could sell to buy drugs. On each occasion they carried and used the handgun in the ways described to overcome any resistance offered by their victims, and to deter interference by any bystanders. The armed robbery offences were premeditated, the murder was not.

31   Each offender had a long-standing drug habit and each was affected by a combination of drugs, including cannabis and heroin which they had smoked, and Rohypnol tablets which they had consumed at various times that day. They were not, however, so affected as to lack the mental element required for the offences; nor does their abuse of drugs provide any excuse for their criminality. Notwithstanding, it may be accepted that their inhibitions were reduced and that their reasoning and clarity of thought was impaired by drugs. It may also be accepted that to some degree the offences were the product of their immaturity and difficult backgrounds, of which I will make mention shortly.

32 Before I turn to the subjective circumstances, however, I note that the maximum sentences of imprisonment available for the relevant offences were as follows (except where otherwise stated, the reference is to the Crimes Act 1900):

Murder (s19A) Life
Armed robbery with a dangerous weapon (s97(2)) 25 years
Accessory after the fact to murder (s349(1)) 25 years
Armed robbery in company (s97(1)) 20 years
Accessory after the fact to armed robbery (s350) 5 years
Possess unauthorised firearm (s7 Prohibited Weapons Act 1989)
on indictment 14 years

33 A victim impact statement was provided testifying to the enormous loss and sorrow suffered by the wife, parents, sister and daughter of the deceased, and also by Van Tri Nguyen. I have read this statement which is available to the Court for the purposes held permissible in Mansour (1999) NSWCCA 180, and Bollen NSWCCA 25 March 1998.

Subjective Circumstances

34   Although there are some similarities between the subjective circumstances of the prisoners, I will deal with them separately, as they emerge from the background or Presentence Reports, and from the reports of the psychologists who have assessed them.

Phung

35   He was born in Laos on 5 November 1981 of a Laotian mother and Thai father and was 17 years old at the time of the offences. His parents' marriage broke down when he was aged about one year, at which time he and his mother fled Laos for Thailand.

36   They came to Australia in 1990 and settled in Cabramatta after spending approximately six years in refugee camps in Thailand. The prisoner has had virtually no contact with his father. His contact with his mother while in Thailand was also limited. She spent most of her time in Bangkok working. After coming to Australia he went to school in Cabramatta but had considerable difficulty with the English language and in adapting He also had problems at home with a mother who neglected and mistreated him, leading to a number of interventions by the Department of Community Services and to court appearances by reason of allegations of inadequate provision of care and of child abuse.

37   He ran away from home and school at the age of about twelve. Thereafter, he became exposed to the abuse of alcohol and drugs and joined a criminal milieu of delinquent peers on the streets of Cabramatta.

38   At one stage, his mother took him back to Thailand for about eighteen months in an unsuccessful attempt to break his drug addiction. He was then sent back by himself, with a small amount of money, and with instructions to stay with a friend of his mother at Bonnyrigg. The friend had, however, moved away with the result that he was forced to return to the street.

39   After a short time, he joined a group of older Vietnamese youths living in a house. While living there, he worked as a dealer of heroin, that being a condition of his continued residence and the means of securing his own drug supply. After a time he moved into other premises with another youth, but continued to deal and use heroin and other drugs becoming a serious multi-drug abuser with a significant habit.

40   In relation to various charges preferred in 1998 for offences of possess prohibited weapon, possess prohibited drug, possess prohibited article and failure to appear, he was made subject to a control order on 29 June 2000 and also fined for a number of serious traffic offences, arising out of the use of a driver's licence to which he was not entitled, and associated offences.

41   In relation to post arrest charges preferred in 2000, a two year good behaviour bond was imposed for an offence of unlawful possession and a three month suspended sentence was imposed for an offence of assault occasioning actual bodily harm. The offence which gave rise to this latter charge saw him transferred, for a short time, to the adult prison system, where he lapsed back into drug abuse, before returning to Kariong where he discontinued its use.

42   His mother still lives in Thailand but she no longer maintains contact with him. He appears to have had no other local community ties beyond those of his criminal associates.

43   While in custody at Kariong, he has responded favourably, probably for the first time in his life, to the educational, training and drug counselling programmes which are there available through the George Anderson Walpole School and through the Secondary District Education Centre and TAFE Outreach programmes, as was disclosed by a series of certificates for quality work in various educational and associated programmes. He appears to be very well regarded by Kariong staff as being cooperative and polite, and in more recent times as being non-aggressive and capable of controlling his anger.

44   It is his ambition to become a chef and in furtherance of that ambition he has been teaching Thai cooking to other detainees. He believes that he is now free of his addiction to drugs and does not expect to resume their use, because of his realisation and appreciation of the adverse effects which they have had for his life.

45   He has expressed remorse for his offences, which has been assessed to be genuine, and he is entitled also to the benefit of the utilitarian value of his plea which, as I have previously noted, can be considered to have been given as soon as the Crown indicated its preparedness to accept pleas on a somewhat more favourable objective basis than that on which he was originally indicted.

46   Dr Lennings, a clinical psychologist, whose report was tendered and who was called to give evidence, assessed his intelligence as falling in the below average range. He also thought the prisoner to have an impaired memory process and cognitive skills, which may have been caused by a history of minor repetitive head injury and excessive substance abuse. He found signs in him of chronic mild depression but no signs of any other significant psychological disorder. The offences he thought to be the product of the kind of socialisation and lifestyle in which he had been living, which had left him without an adequate education, or the kind of socialisation and family support that would have allowed him to develop proper values. This, Dr Lennings thought, left him socially immature and unduly susceptible to the marginal criminalised drug abusing milieu in which he found himself.

47   A question mark was raised by Dr Lennings arising from his lack of community support and from his tendency to respond to his surroundings. For this reason, he considered that his rehabilitation would depend upon what happened to him while in prison, and upon the existence of a suitable support programme for him when released back to the community, which would keep him away from drugs and from the places where, and the people with whom, he used to frequent or associate. In this regard, it appears that he has established beneficial contact while at Kariong with aid workers from Anglicare and Barnardos who may be able to provide some ongoing support for him since he continues to lack family contact.

48   I accept the history as described in the evidence, and in the assessment of Dr Lennings. Clearly, there is much in the prisoner's background which was characterised by mistreatment, separation, transition, neglect and abuse. This was accompanied by difficulty in adjusting to the Australian educational system. Together these factors led him to turn to drugs and to adopt a gang culture in association with similarly vulnerable peers. This left him unstable and directionless at the time of the offences and vulnerable to peer pressure.

49 Equally, I accept that he has been and will continue to be responsive to his surroundings. For that reason, he will need an extended period of supervision post release. Upon that account and also by reference to his age, I find that circumstances exist which justify a departure from the ratio between the non-parole period and the head sentence specified by s44(2) of the Crimes (Sentencing Procedure) Act 1999. I will make an order under s19 of the Children (Criminal Proceedings) Act 1987 that Phung serve so much of his sentence until he attains the age of twenty-one years in a Juvenile Justice Centre in order to promote the interest of rehabilitation and to encourage maintenance of the progress demonstrated so far.

50 Finally, I observe that, as a matter of sentencing principle, the fact that he was still a child within the meaning of the Children (Criminal Proceedings) Act 1987, at the time of the offence, will be taken into account, along with the principles later mentioned which call for particular consideration to be given to the immaturity of the offender and which emphasise the need for the sentencing order to promote the interests of rehabilitation, guidance and assistance and, where appropriate, to place less emphasis on the element of punishment and deterrence, both individual and general, in favour of that of rehabilitation.

Huynh

51   No evidence was called from Huynh but a Presentence Report and a report from Leanne Mayall, a psychologist, were tendered. They show that he was born in Australia on 12 May 1979, and hence was aged nineteen years at the time of the offences. His family had earlier fled Vietnam in 1977 with the first three of their children. He is the youngest of the five children born to his parents and he described his upbringing to the Probation and Parole Service as one that was caring. His relationship with the remainder of the family he said was close. He first came to the notice of the police in 1995 for an offence of supply heroin, which was dealt with in the Children's Court by way of a control order. Regrettably, he has since that time collected a number of other convictions for drug offences, as well as convictions for maliciously inflict grievous bodily harm, escape from a juvenile detention centre, custody of an offensive implement in a public place and, most recently, convictions for two counts of malicious wounding with intent to inflict grievous bodily harm.

52   Until January 1999, his offences had been dealt with by control orders but in that month he was sentenced to a fixed term of six months, later reduced to three months for the offensive weapon offence.

53   For the recent malicious wounding offences he was sentenced to imprisonment for ten years with a non-parole period of six years expiring on 15 September 2005. I have been informed, this morning, that these convictions and sentences are subject to appeal; however, for my purposes I must assume that they will stand. If the contrary becomes the case, then the Court of Criminal Appeal can make the necessary corrections to all sentences.

54   The remarks on sentence of Judge O'Reilly reveal that the prisoner was convicted after trial of these two offences while on remand, bail refused, for the offences in respect of which he now appears before me for sentence. These further offences occurred on 16 September 1999 when he, along with two other prisoners, entered a cell shared by the two victims, each of whom was stabbed with a knife, one very seriously, the other less so. The objective criminality involved in these offences was very considerable, it being his Honour's assessment that the stabbings involved a pre-emptive strike.

55   In sentencing the offenders, his Honour appropriately observed that where serious crime is committed within a corrective services centre, there is a need for an accumulation of sentence, otherwise there will be no deterrent aspect, nor, I would add, any punishment involved. The message must be spread, as his Honour noted, to other inmates that such form of criminality is regarded very seriously.

56   This accords with the rejection by the Court of Criminal Appeal in Kamotu NSWCCA 24 August 1995 of the notion that the law of the jungle applies within the prison system. Contrary to that proposition, Gleeson CJ observed that:

“ Considerations of deterrence are of particular importance in sentencing for offences of violence which occur within the prison system."

57   There being no other sentence which Huynh was serving, his sentence of ten years and the non-parole period of six years were each directed to commence from the date of his arrest on those charges, namely 16 September 1999, that is a date some nine months after his arrest for the offences before me.

58   Each of his co-offenders similarly received full terms of ten years but they were directed to be served cumulatively upon the expiry of the minimum terms which they were already serving. In the case of one offender, who was serving a relatively short sentence, a similar non-parole period of six years was fixed. In the case of the other offender, who was serving a lengthy sentence for murder, the non-parole period was reduced to one of three years by reason of his youth and by reason of his Honour's recognition that a six year non-parole period would effectively extend his minimum period of custody out to the year 2019, and risk depriving him of any hope for the future.

59   The material before me shows that the prisoner left high school while in year nine without obtaining his school certificate. He attended three high schools for various periods but was suspended or expelled due to unacceptable behaviour and truancy. He has never held any form of employment and has declined the opportunities offered to him to work in the family clothing business. While still at school he became a member of a Cabramatta street gang which provided a sense of family belonging and status but which also required adherence to a code of loyalty, of mutual defence and resource sharing. It was through this association that he was exposed to the use of cannabis and heroin, developing a dependency for the latter. As the gang members matured, so did their involvement in drugs and related criminal activity increase and, conversely, the influences of his family became less.

60   His parents have confirmed that his descent into criminal activity was a result of negative peer pressure, their assessment otherwise of him having been that of a quiet and caring family member. Since being incarcerated they suggest that he has shown signs of greater maturity. They also suggest that the burden of supporting his ageing parents will pass to him, as his older siblings are all married.

61   The assessment of the Probation and Parole Service was that he has been minimising his criminality on this occasion, and that he lacks any real remorse or understanding in relation to it. He has presented to that Service as an immature and impressionable young man who is easily influenced by his peers and whose commitment to abstaining from drug abuse, they thought, was difficult to gauge.

62   Not surprisingly, its report indicates that he would need to be serious and committed to addressing the issues surrounding his offending behaviour and to participate in educational and psychological programmes if he is to make any positive changes in his life.

63   Miss Mayall, the psychologist who assessed him, gained the impression that he has had difficulties acknowledging and expressing his feelings, a problem which she thought was associated with the violence which he said that he had seen his father direct towards his mother and at times towards himself, and which he was led to believe was acceptable within the Vietnamese community. It was to avoid these difficulties at home, he informed her, that he began to frequent the amusement parlours where he fell in with the wrong crowd who were often older than himself.

64   It was his own assessment that his criminality was due to his wrong choice of friends, to his poor judgment and to his involvement with drugs. To Miss Mayall he reported that he now has feelings of regret about his involvement in criminal activities and for the shame he has brought upon his family. He expressed deep regret to her about his involvement in the offences now before the Court, suggesting that he only became involved out of a sense of loyalty to Phung. He claimed to be perceiving life differently, now that prison has "woken him up", and caused him to realise that his previous loyalty to the gang had led him to an incorrect view of the world, particularly since his former associates had abandoned him. His loyalty, he claimed to her, was now owed to his family who had stood by him in recent times, despite the shame attaching to them, rather than to the gang who he had falsely assumed would be there for him, no matter what.

65   Miss Mayall expressed the opinion that the early exposure to parental violence directed towards his mother and towards himself when he tried to protect her, had affected his emotional development, psychological functioning and his life choices. In summary, she suggested that this experience of violence, and of the justification offered for it, probably helped desensitise him and left him at risk of developing anti-social behavioural characteristics and psychopathology. The coping strategies which he had adopted of attending amusement parlours and identifying with others of a similar background, and of a dissociation of feelings were, in her view, maladaptive and led to extreme anti-social behaviour. She concluded:

“The hope for Thang is that he now appears to be reflecting on what he has done, is thinking about his involvement in gang life, and has stated a desire to divorce himself from his former cohorts. He states that he is no longer using drugs and intends never to use them again. The fact that he is now reflecting on his life, the events that have influenced his behaviour, and that he appears to be taking some degree of responsibility for his actions demonstrates a capacity for insight which, with professional intervention, may open up the possibility of rehabilitation in the future.”

66   The opinion offered by Miss Mayall, although qualified, is very different from that suggested by the Presentence Report. That may well be explicable by the apparent difficulty which Miss Mayall thought that the prisoner had in identifying and expressing his feelings, and by the additional expertise which she had in identifying his current thinking.

67   In the absence of evidence from Huynh, it is difficult to come to any certain conclusion as to whether he has reached the stage where the prospect of rehabilitation is a reality. In his favour, I am prepared to find that his problems have been contributed to by his family experience and immaturity. I also accept that the seeds for change are present, that he is reaching a stage of greater maturity, that he now realises the emptiness and folly of the gang culture, and that there is reason for some hope that he may renounce the lifestyle which has led him to the gravely serious position in which he finds himself. The next steps are for him to take to improve his education and to gain some employment skills, matters in respect of which Miss Mayall offered no observations.

68   For these reasons I also find special circumstances exist such as to justify a departure from the specified ratio between the non-parole period and head sentence. These relate to his age and also to the lengthy period of custody which he is likely to serve before being released to parole arising out of the need, which I see, to accumulate the sentences for the present offences upon the existing sentences, at least partially.

69   Together, these circumstances indicate that the prisoner will require an extended period of post release supervision to encourage his assimilation back into the community. Whether he will be released at the expiry of the non-parole period, he should understand, will depend upon the extent to which he now responds to the sentence and to the educational and rehabilitation programmes which will be available to him.

The Sentencing Principles Applicable

70   It is convenient next to briefly note the relevant sentencing principles applicable to each respondent, so far as they have not already been mentioned. They relate to the following matters:

a) Armed robbery

71 In relation to the armed robbery offences with which each prisoner has been charged, it is necessary to have regard to the guideline judgment in Henry (1999) 46 NSWLR 346, which provides for a full term range of between four and five years for offenders with characteristics of the kind shared by the present prisoners.

72 That judgment, and similar guideline judgments, are not intended to operate as a straight jacket for sentencing Judges, and departure from them is justifiable in individual cases: Douglas NSWCCA 11 December 1998, and Karacic (2001) NSWCCA 12 at para 52, per Spigelman CJ. However, it does seem to me that Henry provides an indicator for the present case, since most of the circumstances postulated at para 162, namely those identified in subparas (i), (ii), (iii), (iv), (vi) and (vii) are present.

73   So long as Henry is considered as a sounding board or check and is suitably adjusted by reference, for example, to the special principles applicable to children for offences dealt with according to law, and for youthful offenders, as is required in the present case, then I am unable to accept the proposition elsewhere advanced that it has no application to offenders aged under eighteen years.

74 The finding which I make in relation to the armed robbery offences in this case is that while they were very serious, since they involved the use of a loaded handgun, Burns (1999) NSWCCA 88, they do not fall into the upper range of seriousness. The property stolen was of no great value, and the robberies were not planned with any degree of care or attention to detail, although they were not entirely impulsive or unpremeditated since each offender attended the premises with them in mind.

75   The drug addiction of the prisoners and their needs for funds to feed this addiction do not operate in mitigation of sentences: See Henry.

b) Murder

76 Since felony murder involves the taking of human life, it is a particularly serious offence: Mills NSWCCA 3 April 1995, the determination of whose objective gravity depends upon the nature of the acts of the offender which brings about the death of the victim: JB (1999) NSWCCA 93 at para 33.

77   In the instant case, the offence again did not fall into the most serious category of offence of its type, having regard to the circumstances in which it occurred and the limited use of the weapon which had been intended. Moreover, the offence is one that arose through immaturity and in circumstances where Phung's reasoning had been impaired through substance abuse, albeit that such impairment was self-induced.

78   This is not to minimise its seriousness. It is of grave concern that a young offender came into possession of a handgun and was prepared to use it in the course of a robbery with deadly consequences. Regrettably, the possession and use by the younger members of this community of handguns to shoot others, particularly in the course of gang related activities and associations, has become unacceptably prevalent. It needs to be clearly understood that firearms are not toys and that their possession and use is not a game for which any tolerance can be extended.

79   The abhorrence which the community rightly holds in relation to the use of deadly weapons by young persons, often in random circumstances that bring about the death of their peers, as occurred here, requires a firm stand by sentencing Judges. In my assessment, it is such as to call for somewhat greater emphasis to be given to the deterrent aspect of sentencing than that which might otherwise have been appropriate for a young offender.

c) Accessory After the Fact to Murder

80   When sentencing for the offence of accessory after the fact to murder, it is necessary to pay particular attention to the moral culpability of the offender. It is also necessary to treat the sentencing statistics for this offence, which are based upon a very small sample, with some caution, in view of the wide variation in the circumstances in which the offence occurs, and in particular the variation in the nature and degree of assistance provided: Farroukh NSWCCA 29 March 1996, and Tan Do NSWCCA 7 May 1997. In the present case the moral culpability of Huynh was significant since he was present at the scene of the shooting and he assisted Phung in making his escape and concealing the murder weapon.

d) Totality

81 The principle of totality applies, it being necessary to ensure that the aggregate sentence imposed for the offences charged in the indictment is just and appropriate to reflect the criminality involved in all of the offences before the court: Mill (1988) 166 CLR 59 at 62; and also to ensure that the individual sentences are so structured as to comply with the requirements laid down in Pearce (1998) 194 CLR 610 at 624; MCL (2000) 74 ALJR 1319 and Wheeler (2000) NSWCCA 34, which call for the Court to impose sentences appropriate for each offence, and then to allow for totality by making some of them partly concurrent and partly cumulative as may be appropriate.

82 In the instant case, three further separate considerations arise. First, in relation to each offender, it is necessary to take into account in relation to totality, and pursuant to s33 Crimes (Sentencing Procedure) Act 1999, the Form 1 offences: Vougdis (1989) 41 A Crim R 125. That I am required to do in relation to Phung, when sentencing him for murder; and in relation to Huynh, when sentencing him for the count of accessory after the fact to murder.

83   Secondly, it may be accepted that each of the offences charged, as well as those included on the Form 1 documents, were closely connected in time, place and nature. Although they were separated by a few hours, they may properly be regarded as part of a contemporaneous and connected episode of criminality, albeit a very serious episode. Had they involved a series of unrelated events displaying a continuing disregard for the law, then they would potentially have attracted more by way of accumulation of sentence; see: Williams NSWCCA 24 July 1990 and Ross NSWCCA 3 April 1991.

84 Nevertheless, their existence needs to be reflected when passing sentence for the offences in respect of which they are taken into account, it being clear principle that an additional penalty must be expected where further offences are taken into account, albeit that such additional penalty will be less than that which would have been imposed had separate charges been preferred: See Dawson 2000 NSWCCA 399; Lemene (2001) NSWCCA 5, and Bavadra (2000) NSWCCA 292.

85   Thirdly, in relation to Huynh, there is a need to take account of the existing sentences for the offence of malicious wounding previously mentioned, since the totality principle also applies where a sentencing judge is required to pass sentence upon a person already serving sentence: Hajjo NSWCCA 31 August 1992.

86 As I have previously observed, the criminality of Huynh involved in the offences which led to those sentences was significant, as was that involved in the offences for which I must sentence him. This requires suitable reflection by way of an accumulation of sentence, for the reasons noted earlier, so as to ensure that there is both a punitive aspect and a deterrent aspect attaching to the further sentences and to the pre-existing sentences; Brown (1999) NSWCCA 323.

e) Pleas of guilty and remorse

87 For the utilitarian value of the pleas, each prisoner is entitled to a discount in accordance with the provision of s22 Crimes (Sentencing Procedure) Act 1999; and in Phung's case in accordance with s33B Children (Criminal Proceedings) Act 1987. The guideline judgment in Thompson and Houlton (2000) 49 NSWLR 383 also applies.

88 Each prisoner is entitled to an additional discount for the remorse and contrition which they have demonstrated; Neal (1982) 56 ALJR 848. In the case of Phung, that has been shown to be quite considerable; in the case of Huynh it is somewhat less, although it is still present. Additionally in his case, however, there is the fact that he provided some assistance to police in the location of the stolen property and the handgun. It may be observed that it is almost inevitable that there would have been a search at his home leading to discovery of this property. It is the case that he declined to make admissions at the time of his arrest but nevertheless he did provide some assistance in the recovery of the relevant exhibits.

89   For the combined discount for the pleas and for contrition and remorse, including in Huynh’s case an element of assistance, I would allow a discount of 25 percent in relation to each offender.

f) Youth

90 As I have already observed, Phung is to be sentenced as a child, and Huynh as a young offender. For each, the principles discussed in Tran (1999) NSWCCA 109; XYJ NSWCCA 15 June 1992; Wilkie NSWCCA 2 July 1992, and most recently Hearne (2001) NSWCCA 37 are applicable, so far as they require greater weight to be given to the interests of rehabilitation than to those of punishment and deterrence.

91   Nevertheless, those principles have somewhat less weight in the case of offenders approaching the age of adulthood, as is the case with Phung, particularly when they behave as adults, and where they have demonstrated a pattern of persistent disobedience to the law: Biggs NSWCCA 5 March 1997.

92 Moreover, as was pointed out in Cuc Thanh Pham (1991) 55 A Crim R 128, the Court must still pay proper respect to the punitive and protective elements of sentencing. Youth cannot be used as a cloak of convenience to enable an offender to shelter from accepting proper responsibility for his or her criminal behaviour: Mastronardi (2000) NSWCCA 12, although emotional immaturity of the kind seen in Phung is properly to be taken into account as operating in mitigation of sentence; Kama (2000) NSWCCA 23, and Hearne (2001) NSWCCA 37.

g) Rehabilitation prospects

93 It is appropriate to take into account any evidence of rehabilitation demonstrated either positively or considered likely, at the time an offender appears for sentence, subject always to the need for the sentence to meet the other objectives of sentencing; Kyroglu and Tsoukatos (1999) NSWCCA 106, and Gordon NSWCCA 7 February 1994.

94 In the present case, Phung has demonstrated positive prospects for his rehabilitation, and that circumstance is to be taken into account as operating in his favour, since there is a positive public interest in encouraging him to maintain the progress which he has made: See the observations of King CJ in Yardley v Betts (1979) 22 SASR 108 at 112-113, which were cited with approval in Kovacevic (2000) 111 A Crim R 131.

95   In the case of Huynh, the position is not so favourable, although there are signs of growing maturity on his part and of some realisation of the seriousness of his criminality. There is, however, no clear evidence yet of him having taken positive steps towards improving his education or of cooperating in the other programmes available for his assistance.

h) Parity

96 The principle of parity applies to require an equivalence of sentence for offenders where their objective criminality, and their subjective circumstances are similar, so as to avoid one or other of them entertaining a justifiable sense of grievance that he has been dealt with unfairly, or disproportionately in comparison with the other: Lowe (1984) 154 CLR 606, and Postiglione (1997) 189 CLR 295, the latter being of particular relevance where questions of totality also intrude into the sentencing process, as they do here.

97 In this case, the criminality of Phung in relation to the murder is significantly more serious than that of Huynh, who relevantly for that event is responsible only as an accessory after the fact. The difference between those charges need to be respected: Howard (1992) 29 NSWLR 242.

98   For the armed robbery offences, whether included in the indictments or in the Form 1 documents, I would however assess their objective criminality as similar, since those offences were committed as part of a joint enterprise in which each assisted the other.

99   Their subjective circumstances are not entirely dissimilar, so far as each drifted at an early age into gang related activity. Phung has some factors weighing more heavily in his favour in relation to his youth and immaturity and the rehabilitative consideration associated therewith: Rushby 1999 NSWCCA 104, and in relation to his more deprived background, which was almost guaranteed to see him go off the rails, and also so far as he has demonstrated greater progress towards rehabilitating himself.

100   Huynh, while also having some problems in his developmental years, has a worse record than Phung, and is older than him; moreover, he is already serving a significant sentence for an episode of considerable criminality, which requires that his sentence be structured somewhat differently from that applicable to Phung.

i) Variation of the ratio of the non-parole period to the head sentence

101 Special circumstances are required by reason of s44(2) of the Crimes (Sentencing Procedure) Act 1999, before there can be a departure in the ratio of three-quarters which it specifies. Save for the change noted in Carrion (2000) NSWCCA 191, similar considerations apply to this section as those held applicable in the case of s5(2) of the Sentencing Act as discussed in Moffitt (1990) 20 NSWLR 114, Phelan (1993) 66 A Crim R 446, Hampton (1998) 101 A Crim R 399 and Lett NSWCCA 27 March 1995. What is required in particular for such departure is a need or desirability for the offender to be subject to an extended period of conditional release subject to supervision on parole.

102   It is by reference to those principles, particularly those concerned with their age and their effective rehabilitation, Silver 1999 NSWCCA 108, that I consider that there should be a reduction, in the case of each offender, of the ratio, to the extent which is indicated in the sentences that I intend to impose.

j) Backdating

103   It is necessary to give credit for the presentence custody that has been served in relation to the offences with which I am concerned. In the case of Phung this occasions no difficulty since the period from the time of his arrest on 20 December 1998 has been served solely in respect of those offences. I will accordingly backdate the first sentence in his case to 20 December 1998.

104   In the case of Huynh, the situation is more complex in that the period of nine months from 20 December 1998 to 16 September 1999 can similarly be taken to have been served in relation to the current offences. However, the non-parole period for the malicious wounding offences does not expire until 15 September 2005. It is, in the circumstances previously noted, appropriate to regard that period of six years as being served exclusively in relation to those two sentences, that is, subject to the extent to which, by reference to principles of totality and youth and the need to avoid imposing sentences that would snuff out any prospects which he has for rehabilitation, I should order the sentences for the current matters to be served partly concurrently with them.

Sentences

105   In light of these principles and factual findings and making allowance for discounts previously mentioned for the pleas of guilty and contrition, I sentence the prisoners as follows:

Johnny Phung

a) For the offence of robbery when armed with a dangerous weapon of John Huu Vinh Tran, I sentence you to a fixed term of imprisonment for three years to date from 20 December 1998. I decline to set a non-parole period in relation to the sentence because of the sentence which I next impose;
b) For the offence of murder, taking into account the three offences on the Form 1, I sentence you to imprisonment for thirteen years to commence from 20 December 1999 and to expire on 19 December 2012, such sentence to be served partly cumulative upon and partly concurrently with the sentence for the armed robbery. I set a non-parole period of eight years, similarly to date from 20 December 1999 and to expire on 19 December 2007. The earliest date on which you will be eligible for release on parole will, accordingly, be 20 December 2007.

106 I make an order under s19 of the Children (Criminal Proceedings) Act 1987 that you serve so much of your sentence until you attain the age of twenty-one years in a Juvenile Justice Centre.

Thang Minh Huynh

a) For the offence of robbery when armed with a dangerous weapon of John Paul Nguyen, taking into account the nine months already served upon remand for the present offences, I sentence you to imprisonment for a fixed term of three years and three months. Such sentence is to commence on 16 September 2005, that is, on expiry of your existing non-parole period, and is itself to expire on 15 December 2008. I decline to set a non-parole period for that sentence by reason of the sentence I next impose.
b) For the offence of accessory after the fact to murder, taking into account the offences on the Form 1, and again taking into account the remand custody, I sentence you to imprisonment for three years and three months to commence on 16 June 2007 and to expire on 15 September 2010. That sentence is to be served partly cumulatively upon and partly concurrently with the sentence for the armed robbery and similarly partly cumulatively upon and partly concurrently with the balance of the pre-existing sentence. I fix a non-parole period of 21 months to commence on 16 June 2007 and to expire on 15 March 2009. The earliest date on which you will be eligible for release on parole will accordingly be 16 March 2009.

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Last Modified: 05/16/2001