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12
Court of Criminal Appeal 1 September 2003

REGINA v. HUYNH

[2003] NSWCCA 239

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE APPEAL OBJECTIVE CIRCUMSTANCES MULTIPLE OFFENCES CUMULATION

Citation: Regina v Huynh [2003] NSWCCA 239
Court: New South Wales Court of Criminal Appeal
Date: 1 September 2003
Judge(s): Greg James J; Dunford J

Background

The applicant was convicted by a jury in the District Court at Parramatta on two charges: robbery in company and assault occasioning actual bodily harm. The offences arose from a single episode in which the victim was accosted near Lidcombe railway station, robbed at implied knifepoint by two offenders, and then chased and assaulted after attempting to flee.

The applicant's co-offender had threatened the victim and taken his property. The applicant himself was linked to the offence through a fingerprint left on a witness's car during the assault. The victim was rendered unconscious and required hospitalisation, though he did not sustain facial fractures.

At the time of the offences the applicant was on parole, which had since been revoked. District Court Judge Nield sentenced him to eight years imprisonment (with a five-year non-parole period) for the robbery, and a concurrent fixed term of two years for the assault, producing an effective total of nine years with a six-year non-parole period. The applicant sought leave to appeal.

  • Whether the eight-year sentence for robbery in company was manifestly excessive having regard to the applicant's specific role in the offence
  • Whether the sentencing judge gave sufficient weight to the applicant's subjective circumstances
  • Whether the degree of cumulation across the two sentences, and upon the head sentence the applicant had been serving on parole, was an error of discretion

Decision

The Court of Criminal Appeal rejected the submission that the sentencing judge failed to give sufficient weight to the applicant's subjective circumstances. His Honour had carefully enumerated those matters, including the applicant's background as a Vietnamese refugee, limited education, drug and alcohol use, and the death of his mother. The trial judge had also correctly noted the applicant's extensive prior record, which included prior offences of aggravated robbery with wounding and malicious wounding, and had appropriately declined to give significant weight to a psychologist's report in that context.

On the question of cumulation, the Court accepted that parole carries an inherent condition: committing a further offence while on parole means surrendering the liberty enjoyed under that condition. The Court found no error in the principle applied by the sentencing judge to the accumulation of sentences.

However, the Court accepted the applicant's primary submission that the eight-year sentence for robbery in company was well in excess of what a sound exercise of discretion warranted. The applicant had not personally threatened the victim, had not taken the property, and had not directly applied violence during the robbery itself (his physical violence formed the subject of the separate assault charge). The Court found the objective circumstances of his role in the robbery, notwithstanding his prior record and the fact the offence was committed on parole, did not support a sentence of that length.

The two-year fixed term for assault occasioning actual bodily harm was left undisturbed. The Court substituted a sentence of six and a half years for the robbery in company charge, with a four-year non-parole period, producing an overall term of seven and a half years with a five-year non-parole period.

Orders Made

  • Leave to appeal granted; appeal allowed in part
  • Sentence for robbery in company reduced to six and a half years, commencing 15 October 2003 and expiring 14 April 2010, with a non-parole period of four years commencing 15 October 2003 and expiring 14 October 2007
  • Sentence of two years (fixed term) for assault occasioning actual bodily harm to stand, commencing 15 October 2002 and expiring 14 October 2004
  • Overall sentence: seven and a half years imprisonment with a five-year non-parole period, commencing 15 October 2002 and expiring 14 October 2010
  • Earliest parole eligibility date: 14 October 2007

Key Takeaways

  • An offender's precise role in a multi-offender robbery is a material consideration in fixing the head sentence: where an applicant did not personally threaten the victim, take the property, or apply violence during the robbery itself, a sentence reflecting the full gravity of the offence as a whole may be manifestly excessive.
  • The Court of Criminal Appeal confirmed that committing an offence while on parole is a significant aggravating factor, but it does not by itself justify a sentence that is disproportionate to the individual offender's culpability for the specific offence charged.
  • A sentencing court's careful enumeration of subjective circumstances, including background hardship and attempts at rehabilitation, will not readily be disturbed on appeal where those matters were plainly weighed and no relevant consideration was overlooked.
  • Partial appeals against sentence can succeed on one ground (manifest excess for one charge) while failing on others (inadequate weight to subjective circumstances, error in cumulation), resulting in a sentence that is adjusted rather than wholly reconsidered.
  • Under the framework applied here, special circumstances arising from the structure of an accumulated sentence may justify a non-parole period that is proportionally shorter relative to the total term than would otherwise be the case.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases
- Pearce v The Queen (1998) 194 CLR 610