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…

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.

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Details

Case: [2001] NSWSC 357
Decision Date: 3 May 2001

CaseChat Overview and Summary

The Supreme Court of New South Wales was tasked with sentencing Johnny Phung and Thang Minh Huynh for their involvement in armed robberies and a murder that occurred at an amusement centre in Liverpool. Phung was found guilty of the murder of Hiep Van Nguyen and armed robbery, while Huynh was convicted of being an accessory after the fact to the murder and armed robbery. The court had to determine appropriate sentences that reflected the severity of the crimes and the individual circumstances of the offenders. Wood CJ at CL considered various legal principles and factual findings in delivering the sentences. Phung was sentenced to thirteen years for murder, with a non-parole period of eight years, and three years for armed robbery. Huynh received three years and three months for being an accessory after the fact to murder, and three years and three months for armed robbery. The court took into account the offenders' ages, their backgrounds, and their potential for rehabilitation in determining the sentences.

Orders