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District Court 19 May 2017

R v Huynh

[2017] NSWDC 126

Assault & violence
CRIMINAL LAW SENTENCE WOUNDING WITH INTENT TO MURDER MULTIPLE STAB WOUNDS OFFENDER IN RELATIONSHIP WITH VICTIM LOW OBJECTIVE SERIOUSNESS

Citation: R v Huynh [2017] NSWDC 126
Court: District Court of New South Wales
Date: 19 May 2017
Judge: Hatzistergos DCJ

Background

The offender, a nursing home assistant, was convicted by jury of wounding with intent to murder, contrary to s 27 of the Crimes Act 1900 (NSW). The offence arose from a turbulent extramarital relationship between the offender and the victim, a married colleague, which ended in late 2014 but continued to generate conflict. Tensions came to a head in November 2015 when both parties were on the same cruise to New Zealand, after which the victim went to the offender's home to confront her about a compromising photograph.

At the offender's residence, a heated exchange occurred. The victim ran from the scene after the offender retrieved a knife from her car, but she caught and stabbed him multiple times, inflicting five wounds including full-thickness lacerations to the chest, abdomen, leg, and hand. The wounds were directed at locations of vital organs. The Crown conceded that the victim subsequently made a good recovery.

The offender's account was that she had intended to kill herself rather than the victim, and had made a will and purchased pharmaceuticals for that purpose on the day of the offence. She also attempted suicide following the incident. These matters were relevant to sentencing, though the jury's verdict necessarily rejected her account as the full explanation for what occurred.

  • Whether the offender's state of mind (including a possible intention to self-harm rather than harm the victim) was relevant to assessing the objective seriousness of the offence
  • Whether provocation by the victim was relevant to objective seriousness at the sentencing stage
  • The weight to be given to the victim impact statement, in circumstances where the Crown conceded the victim had made a good recovery
  • The significance of the offender's unresolved mental health condition as a mitigating factor
  • Whether the offender's good character, demonstrated remorse, prospects of rehabilitation, and the impact of incarceration on her family warranted mitigation
  • Whether special circumstances existed justifying a variation from the standard non-parole period ratio under the Crimes (Sentencing Procedure) Act 1999 (NSW)

Decision

Hatzistergos DCJ assessed the offence as being at the lower end of objective seriousness for wounding with intent to murder. His Honour accepted that the offender's mental state at the time, including evidence of suicidal ideation and emotional distress arising from the breakdown of the relationship, was relevant context in assessing the gravity of the conduct, even though it did not excuse it. The victim's provocative conduct at the door of the offender's home, including the abusive language directed at her, was also considered relevant to the objective circumstances.

His Honour found that the offender was a person of good character, with no prior criminal history, strong community ties, and evidence of genuine remorse. Statements from family members and others were tendered in mitigation. The court accepted that the offender had an unresolved mental health condition that required treatment, and that this contributed to the circumstances of the offence.

The court found excellent prospects of rehabilitation and a low likelihood of reoffending, noting the offence arose from a specific and volatile set of personal circumstances unlikely to recur. The impact of continued incarceration on the offender's son and other family members was also acknowledged, though not given excessive weight.

Special circumstances were found to exist under the Crimes (Sentencing Procedure) Act 1999 (NSW), justifying an extension of the parole period beyond the standard statutory ratio. His Honour considered that a longer period of supervised release in the community was appropriate given the offender's mental health needs and rehabilitative prospects.

Orders Made

  • The offender was convicted of wounding with intent to murder (s 27 Crimes Act 1900 (NSW))
  • Non-parole period of 4 years' imprisonment, commencing 4 December 2015 and expiring 3 December 2019
  • Additional term of 4 years' imprisonment, commencing 4 December 2019 and expiring 3 December 2023
  • Total sentence of 8 years' imprisonment

Key Takeaways

  • The District Court confirmed that an offender's mental state and emotional circumstances at the time of the offence can be relevant to assessing objective seriousness, even where those circumstances do not provide a complete explanation or excuse for the conduct.
  • Provocation by the victim, falling short of the former partial defence, may still be taken into account as part of the objective circumstances of the offending at the sentencing stage.
  • Where the Crown concedes that a victim has made a good recovery, that concession carries weight in calibrating objective seriousness, notwithstanding the potentially fatal nature of the wounds.
  • A finding of special circumstances warranting departure from the standard non-parole period ratio can be supported by a combination of unresolved mental health needs, strong rehabilitation prospects, and the particular personal context from which the offending arose.
  • Good character, absence of prior criminal history, genuine remorse, and a low risk of reoffending remained significant mitigating factors, even in the context of a serious offence involving multiple stab wounds.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 27
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A(2), 21A(3), 28(a), 44(1), 47(2)(a), 54A(b)
- Evidence Act 1995 (NSW) s 191

Cases
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 205 A Crim R 1; [2010] NSWCCA 194
- Alkanaan v R [2017] NSWCCA 56
- Jeffree v R [2017] NSWCCA 72
- Aslan v R [2014] NSWCCA 114
- Elturk v R [2014] NSWCCA 61
- Christodoulou v R [2008] NSWCCA 102
- McLaren v R [2012] NSWCCA 284
- Williams v R [2012] NSWCCA 172
- Shine v R [2016] NSWCCA 149
- Kremisis v R [2016] NSWCCA 257
- Raczkowski v R [2008] NSWCCA 152
- Walker v R [2006] NSWCCA 347
- R v Rae [2001] NSWCCA 545
- R v Delaney (2003) 59 NSWLR 1; [2003] NSWCCA 342