Citation: R v Huynh; R v Lam; R v Ta [2000] NSWCCA 18
Court: NSW Court of Criminal Appeal
Date: 14 February 2000
Judge(s): Spigelman CJ, Hulme J, Smart AJ
Background
On the evening of 21 June 1996, a large brawl broke out on New Canterbury Road, Petersham, near a roller skating rink. Up to thirty young men, mostly of Vietnamese origin, were involved. One youth was stabbed to death, a second suffered a broken leg and other injuries, and one of the respondents sustained a knife wound to his wrist.
Three respondents, Huynh, Lam, and Ta, had been among a group of ten to fifteen men who gathered at a house in Silverwater earlier that evening, where a co-offender produced a bundle of approximately ten machetes. The Crown accepted pleas of guilty to affray from each respondent, on the basis that each participated in the brawl to some extent. There was no evidence that any of them carried a weapon, and no evidence connecting them to the fatal stabbing. The pleas were accepted in full satisfaction of an indictment that had also included charges of manslaughter and malicious wounding.
In June 1999, District Court Judge Viney sentenced each respondent to a deferred sentence on recognizance: Lam to a $1,000 recognizance for three years with probation supervision, and Ta and Huynh to similar orders for two years. The Director of Public Prosecutions appealed each sentence as inadequate.
Legal Issues
- Whether the sentences imposed by Judge Viney were manifestly inadequate and therefore warranted appellate intervention.
- Whether the differing levels of involvement among the three respondents justified different sentencing outcomes.
- Whether, in the case of Lam, the combination of prior criminal history (including a prior affray conviction and a sentence imposed just two weeks before this offence), commission of the offence while on bail, and apparent lack of reform warranted a custodial term.
- Whether the Court of Criminal Appeal should exercise its discretion to dismiss Crown appeals even where the sentencing discretion may have miscarried.
Decision
The Court dismissed all three appeals, though for somewhat different reasons as between the respondents.
In relation to Ta and Huynh, Hulme J (with whom Spigelman CJ and Smart AJ agreed) held that their criminality was at the lower end of the scale. Ta's involvement amounted to little more than his presence at the scene. Huynh ran toward the fight but there was no evidence he inflicted any blows. Given their clean or near-clean records, Hulme J was not persuaded that, even at first instance, he would have imposed a harsher sentence. The appeals concerning them were dismissed accordingly.
Lam's position was assessed differently. He had prior convictions including an earlier affray, for which he had received a gaol term just two weeks before committing the present offence. He committed this offence while on bail, which the Court characterised as a matter of major aggravation, consistent with established authority. His record up to December 1996 demonstrated he had not reformed, and Hulme J expressed the view that his offence deserved a custodial term.
Despite that conclusion, the Court exercised its discretion to dismiss Lam's appeal as well. The Court noted that, by the time of the appeal, more than three and a half years had passed since Lam's last offence, representing a marked improvement on his prior pattern of conduct. On a Crown appeal, the Court retains a discretion not to interfere even where a sentencing error is identified, and the Court considered it appropriate to exercise that discretion in Lam's favour, while making clear that breach of his recognizance would expose him to imprisonment.
Orders Made
- Appeal dismissed in the case of Huynh.
- Appeal dismissed in the case of Lam.
- Appeal dismissed in the case of Ta.
Key Takeaways
- In dismissing all three Crown appeals, the Court of Criminal Appeal confirmed that an appellate court retains a discretion not to intervene even where it considers a sentence may have been inadequate, particularly where circumstances have changed materially since the original sentencing.
- Committing an offence while on bail was reaffirmed as a matter of major aggravation in sentencing, consistent with the line of authority including R v Richards (1981) 2 NSWLR 464 and R v Redman (1990) 47 A Crim R 181.
- Where a sentencing court cannot be satisfied that a participant in a mass brawl had specific knowledge of weapons, or played a role beyond mere presence, those factors operate significantly to reduce the appropriate sentence relative to the principal offenders.
- The passage of approximately three and a half years without further offending was treated as a relevant and favourable consideration in the exercise of the appellate discretion on a Crown appeal, even where the sentencing outcome was viewed as arguably lenient.
- A plea of guilty may attract greater than ordinary utilitarian value where the Crown case was not strong and conviction at trial was uncertain, a finding Judge Viney made and which the Court of Criminal Appeal did not disturb.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), s 558 (recognizance provisions)
Cases:
- R v Andrew Skillan Jones (unreported, CCA, 30 June 1994)
- R v Richards (1981) 2 NSWLR 464
- R v Redman (1990) 47 A Crim R 181