Citation: R v Huynh and Phung [2001] NSWSC 357
Court: Supreme Court of New South Wales, Common Law Division
Date: 3 May 2001
Judge(s): Wood CJ at CL
Background
Two offenders committed a series of armed robberies and a murder at the EPI Leisure Centre in Liverpool on 19 December 1998. The offences occurred in two separate incidents that evening, approximately five and a half hours apart. The centre was an amusement venue attended predominantly by young people of Vietnamese and Cambodian descent.
In the first incident, around 5pm, both offenders robbed two victims at gunpoint, taking mobile phones, jewellery, and personal items. They returned to the same premises at about 10.30pm, where one offender shot and killed a victim during a further robbery. Both offenders had been in custody since 20 December 1998.
Each offender was originally jointly indicted and pleaded not guilty. Following pretrial rulings that excluded certain electronically recorded interview evidence, both entered guilty pleas to separate indictments that more precisely reflected their individual roles. One offender (Phung) was convicted of murder and armed robbery; the other (Huynh) was convicted of accessory after the fact to murder and armed robbery.
Legal Issues
- What sentences were appropriate for murder and armed robbery having regard to the objective seriousness of the offences and the individual circumstances of each offender?
- What weight should be given to guilty pleas and contrition in mitigation of sentence?
- How should sentences be structured (cumulative, concurrent, or partly both) across multiple offences committed on the same occasion?
- Whether an order under s 19 of the Children (Criminal Proceedings) Act 1987 was warranted given Phung's age?
- How should remand custody already served be accounted for in sentencing Huynh?
Decision
Wood CJ at CL made factual findings about each offender's role before imposing sentence. The court noted that the murder charge was one of felony murder rather than specific intent murder, meaning the killing occurred in the course of another serious offence rather than from a premeditated intention to kill. The individual indictments to which pleas were entered were found to more accurately reflect each offender's actual criminality than the original joint indictment.
The court applied discounts to the sentences to reflect the guilty pleas and contrition shown by both offenders. These mitigating factors reduced what would otherwise have been more severe penalties, particularly in relation to the murder charge.
For Phung, the court imposed a thirteen-year sentence for murder, with an eight-year non-parole period, to run partly cumulative on a three-year fixed term for the armed robbery. Because Phung was a juvenile at the relevant time, the court made an order under s 19 of the Children (Criminal Proceedings) Act 1987 directing that he serve the portion of his sentence prior to reaching the age of twenty-one in a Juvenile Justice Centre.
For Huynh, the court imposed a sentence of three years and three months for accessory after the fact to murder, with a non-parole period of twenty-one months, to run partly cumulative on a further sentence of three years and three months for the armed robbery. The court took into account nine months of remand custody Huynh had already served in relation to these offences, and structured the commencement dates to account for a pre-existing sentence Huynh was already serving.
Orders Made
Johnny Phung:
- Armed robbery of John Huu Vinh Tran: fixed term of three years' imprisonment from 20 December 1998 (no non-parole period set)
- Murder (with three Form 1 offences taken into account): thirteen years' imprisonment from 20 December 1999 to 19 December 2012, partly cumulative and partly concurrent with the armed robbery sentence; non-parole period of eight years from 20 December 1999 to 19 December 2007; earliest parole eligibility 20 December 2007
- Order under s 19 of the Children (Criminal Proceedings) Act 1987 to serve the portion of his sentence prior to age twenty-one in a Juvenile Justice Centre
Thang Minh Huynh:
- Armed robbery of John Paul Nguyen (nine months' remand taken into account): fixed term of three years and three months commencing 16 September 2005 and expiring 15 December 2008 (no non-parole period set)
- Accessory after the fact to murder (Form 1 offences and remand custody taken into account): three years and three months commencing 16 June 2007 and expiring 15 September 2010, partly cumulative and partly concurrent with the armed robbery sentence and pre-existing sentence; non-parole period of twenty-one months from 16 June 2007 to 15 March 2009; earliest parole eligibility 16 March 2009
Key Takeaways
- Where an offender is a juvenile at the time of the offence, the Supreme Court may order under s 19 of the Children (Criminal Proceedings) Act 1987 that the portion of a sentence prior to the offender reaching twenty-one years of age be served in a Juvenile Justice Centre.
- A murder charge framed as felony murder, rather than specific intent murder, reflects that the killing occurred in the course of another serious offence; this distinction shaped the framing of the individual indictments accepted on guilty plea.
- Guilty pleas and demonstrated contrition operated as mitigating factors, resulting in discounts from the sentences that would otherwise have applied.
- Where an offender is already serving an existing sentence, courts can structure new sentences with staggered commencement dates to ensure appropriate cumulation while avoiding disproportionate total terms.
- Remand custody already served is a recognised factor in sentencing, and courts may adjust the length or commencement of sentences to account for time already spent in custody on remand.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(a), 97(2), 349(1)
- Children (Criminal Proceedings) Act 1987 (NSW), s 19
Cases:
No cases were cited in the portions of the judgment provided.