Cang Tan Huynh v The Queen - [2022] VSCA 49

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0131

CANG TAN HUYNH	Applicant
v
THE QUEEN	Respondent

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JUDGE:	T FORREST JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	31 March 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 49
JUDGMENT APPEALED FROM:	[2021] VCC 175 (Judge Lyon)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Application for leave to appeal – Sentence – Importing marketable quantity of border controlled drug – Manifest excess – Sentence of 5 years’ imprisonment with non-parole period of 3 years – Principle of totality – Whether judge properly took into account sentence of imprisonment previously served in another state for similar, contemporaneous offending – R v Todd [1982] 2 NSWLR 517, Mill v The Queen (1988) 166 CLR 59 applied – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance	Paul Vale Criminal Law
For the Respondent	No appearance	Mr Scott Bruckard, Solicitor for Public Prosecutions (Cth)

T FORREST JA:

Introduction

In early 2017 the applicant arranged with ‘Alberto’, apparently a Colombian, to send a parcel of cocaine to his parents’ address in Mitcham, Victoria. At the time the applicant was living in Perth.

On 6 February 2017 a DHL consignment of paragliding equipment in a backpack arrived at Sydney on a flight from Chile. It was addressed to ‘Jack Ray’ at the Mitcham address. The listed contact number was for Thi Hong Nguyen — the applicant’s then partner. DHL contacted Ms Nguyen, who claimed no knowledge of the shipment but stated that she would speak to the applicant. The applicant then admitted to Ms Nguyen that he had arranged with Alberto to import ‘a package’. By this stage the paragliding equipment had been x-rayed by Australian Border Force (‘ABF’) officers. The ABF officers passed the backpack to Australian Federal Police, who found, within the seat of the paraglider, five sponges containing a powder weighing a total of 1.7 kilograms. When analysed the powder was found to contain 875 grams of pure cocaine. This represented 437.5 times the marketable quantity of cocaine (two grams) and roughly 44% of the prescribed commercial quantity (two kilograms).[1]
[1]Criminal Code Regulations 2002 (Cth) sch 4 item 41.

The cocaine was removed from the paragliding equipment, which was then repackaged and delivered to the Mitcham address in a controlled delivery on

10 February 2017. The estimated value of the cocaine was in a range from $306,000 (wholesale) to $597,000 (street-level value). The applicant, who identified himself as Jack Ray, was present at the Mitcham address when the equipment was delivered. In a subsequent series of phone calls and messages the applicant disclosed that he knew that there was something missing from the backpack, was concerned that he would be blamed for its absence, and that he may have to pay ‘200,000’ in compensation. In other messages the applicant…

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: [2022] VSCA 49
Decision Date: 31 March 2022

CaseChat Overview and Summary

The case of Cang Tan Huynh versus The Queen involves an application for leave to appeal a criminal conviction and sentence. The appellant was found guilty of importing a marketable quantity of a border controlled drug and was sentenced to five years' imprisonment, with a non-parole period of three years. The legal dispute before the court centred on whether the sentencing judge appropriately considered the principle of totality in light of the appellant having previously served a sentence of imprisonment for similar, contemporaneous offences in another state. The matter was heard in the High Court of Australia, which was tasked with determining the appropriate legal standards for considering prior sentences when imposing a new sentence.

The court was required to consider whether the sentencing judge had correctly applied the principle of totality, a principle which ensures that the aggregate punishment for multiple offences is not excessive. The appellant argued that the judge had not adequately accounted for the time already served in another jurisdiction for similar offences. The court had to examine relevant case law, including R v Todd and Mill v The Queen, to determine the correct approach to sentencing in cases involving multiple offences and concurrent sentences. The key issue was whether the sentence imposed was manifestly excessive when considering the cumulative effect of all sentences.

In its reasoning, the High Court found that the sentencing judge had indeed properly taken into account the principle of totality and the appellant's previous sentence. The court held that the sentencing judge had exercised their discretion appropriately and had not imposed a manifestly excessive sentence. The court reaffirmed that, in applying the principle of totality, the sentence imposed must not be excessive in the aggregate, taking into account all sentences served or to be served concurrently or consecutively. The court concluded that the sentence was proportionate and did not contravene the principle of totality. Accordingly, the application for leave to appeal was refused.

The High Court's decision was final, with no orders made beyond the refusal of leave to appeal. The appellant's sentence was upheld, and the principle of totality was confirmed as correctly applied by the original sentencing judge.

Orders