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Huang v R

Huang v R

Case [2018] NSWCCA 57 6 April 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Huang v R [2018] NSWCCA 57
Hearing dates: 24 July 2017
Decision date: 06 April 2018
Before: Bathurst CJ at [1];
Beazley P at [12];
Hoeben CJ at CL at [92];
McCallum J at [93];
Bellew J at [105]
Decision:
(1)   Grant the appellant leave to appeal against sentence.

(2)   Appeal allowed.

(3)   Quash the sentence imposed on the appellant on 9 December 2015 and in lieu thereof, sentence the appellant to a term of imprisonment of 6 years, 3 months commencing on 9 December 2015 to expire on 8 March 2022.
(4) In accordance with the Crimes Act 1914 (Cth), s 19AB(1), fix a non-parole period of 4 years, 8 months to expire on 8 August 2020.
Catchwords: CRIMINAL LAW – appeal – sentencing – whether error in consideration of offences pursuant to Crimes Act 1914 (Cth), s 16BA – whether error in declining to allow discount for utilitarian value of guilty plea for federal offence – whether sentence imposed was manifestly excessive
Legislation Cited: Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), ss 137, 140
Crimes (Appeal and Review) Act 2001 (NSW), s 64A
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22
Crimes Act 1914 (Cth), ss 16A, 16BA, 19AB
Criminal Code (Cth), s 400.3
Cases Cited: Ansari v R (2007) 70 NSWLR 89; [2007] NSWCCA 204
Cheng v R (2017) 94 NSWLR 72; [2017] NSWCCA 63
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Director of Public Prosecutions v Lai [2013] VCC 1318
Hart v Attorney-General for New South Wales [2016] NSWCCA 71
Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
Islam v R [2016] NSWCCA 233
Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
Nash v Silver City Drilling (NSW) Pty Ltd; Attorney-General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
Nguyen v R (2016) 256 CLR 656; [2016] HCA 17
R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
R v Huang; R v Siu (2007) 174 A Crim R 370; [2007] NSWCCA 259
R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Re Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1990 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Xiao v R [2018] NSWCCA 4
Zhao v R [2016] NSWCCA 179
Category: Principal judgment
Parties: Jun Yu Huang (Appellant)
Regina (Respondent)
Representation:
Counsel:
H Dhanji SC; S Howell (Appellant)
S McNaughton SC; L Crowley (Respondent)
Solicitors:
Bilias & Associates (Appellant)
Office of the Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2013/00258327
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

09 December 2015

Before:

Conlon DCJ

File Number(s):

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.

Continue reading Huang v R

Details

AGLC: Huang v R [2018] NSWCCA 57
Case: [2018] NSWCCA 57
Decision Date: 06 April 2018

CaseChat Overview and Summary

In this matter, the appellant, Huang, appealed against his sentence for multiple drug importation offences under the Crimes Act 1914 (Cth). The appellant was found guilty of importing 5 kilograms of heroin into Australia and was subsequently sentenced to 10 years imprisonment, with a non-parole period of 7 years. The appellant argued that the sentencing judge erred in several respects, including the consideration of the offences under section 16BA of the Crimes Act 1914 (Cth) and the refusal to allow a discount for the utilitarian value of his guilty plea. The appellant submitted that the sentence imposed was manifestly excessive.

The primary legal issue was whether the sentencing judge erred in the consideration of the offences under section 16BA of the Crimes Act 1914 (Cth) and in declining to allow a discount for the utilitarian value of the appellant's guilty plea. The court considered whether the sentence imposed was manifestly excessive and whether any errors made by the sentencing judge warranted a reduction in the appellant's sentence.

The court held that the sentencing judge did not err in considering the offences under section 16BA of the Crimes Act 1914 (Cth). The court found that the sentencing judge had properly taken into account the appellant's criminal history and the seriousness of the offences. However, the court did find that the sentencing judge erred in declining to allow a discount for the utilitarian value of the appellant's guilty plea. The court held that the appellant's early guilty plea should have been taken into account and resulted in a discount of 15%. The court also found that the sentence imposed was manifestly excessive, given the discount for the utilitarian value of the guilty plea. As a result, the court ordered a reduction in the appellant's sentence to 7 years imprisonment, with a non-parole period of 5 years.

Orders