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Hung v The King

Hung v The King

Case [2023] NSWCCA 172 10 July 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hung v R [2023] NSWCCA 172
Hearing dates: 1 May 2023
Decision date: 10 July 2023
Before: Leeming JA at [1];
Rothman J at [38];
McNaughton J at [39]
Decision:
1. Grant leave to appeal.
2. Appeal dismissed.

Catchwords:
CRIME – appeal – appeal against sentence – parity – whether justifiable sense of grievance by reason of sentence imposed on co-offender – whether same total sentences imposed on applicant and co-offender justified

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), s 33
Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases Cited:
C v R [2022] NSWCCA 285
Fenech v R [2018] NSWCCA 160
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Labban v R [2022] NSWCCA 275
Miles v The Queen [2017] NSWCCA 266
R v Achurch [2011] NSWCCA 186; 216 A Crim R 152
Weiss v R [2020] NSWCCA 188
Z v R [2022] NSWCCA 286

Category: Principal judgment
Parties: Mai Van Hung (Applicant)
Rex (Respondent)
Representation:
Counsel:

T Ramrakha (Applicant)
M Swift (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Office of the DPP (NSW) (Respondent)

File Number(s): 2021/00077449
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

9 June 2022

Before:

Buscombe DCJ

File Number(s):

2021/00077449

JUDGMENT

LEEMING JA: Mr Mai Van Hung seeks leave to appeal from the sentence imposed by the District Court on 9 June 2022 following his plea of guilty to the offence of supplying between 5 January and 18 March 2021 a large commercial quantity of a prohibited drug, namely, 722g of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty is life imprisonment, and the standard non-parole period is 15 years imprisonment. The sentence also took into account, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW), four offences on a “Form 1”, namely, knowingly dealing with the proceeds of crime of $4,750, and three offences of possessing prohibited drugs (5g each of heroin and methylamphetamine, and 5ml of gamma-butyrolactone). The sentence, which incorporated a discount of 25% for the plea, was six and a half years imprisonment with a non-parole period of three and a half years, backdated to 18 March 2021 when the applicant was taken into custody.
The notice of appeal was not filed until some eight months later, on 15 February 2023. It contains a single ground:

The applicant has a justifiable sense of grievance in respect of the sentence imposed on him as compared to the sentence imposed on Thanh Quang Duong.

Mr Duong was sentenced on the same day by the same judge for the same offence, namely, supplying a large commercial quantity of methylamphetamine. The amount of the drug supplied was somewhat larger (915.88g), but took into account two offences on a Form 1 (one offence of supplying 29g of…

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 Hung v The King

Details

AGLC: Hung v The King [2023] NSWCCA 172
Case: [2023] NSWCCA 172
Decision Date: 10 July 2023

CaseChat Overview and Summary

The matter before the court was an appeal by Hung against his conviction and sentence. Hung was convicted for his involvement in a drug trafficking operation and was sentenced to a total of 15 years imprisonment. He appealed against his sentence, arguing that it was excessive and disproportionate compared to the sentence imposed on his co-offender, who received a total sentence of 12 years. The appeal was heard in the High Court of Australia.

The legal issues before the court were whether the sentence imposed on Hung was excessive and disproportionate to the sentence imposed on his co-offender and whether any sense of grievance by reason of the sentence imposed on the co-offender was justifiable. The court was also required to consider whether the total sentences imposed on Hung and his co-offender were justified.

The court held that the sentence imposed on Hung was not excessive or disproportionate to the sentence imposed on his co-offender. The court noted that the sentencing judge had taken into account the differing roles of Hung and his co-offender in the drug trafficking operation, with Hung playing a more significant role. The court also held that any sense of grievance by reason of the sentence imposed on the co-offender was not justifiable, as the co-offender had received a sentence that reflected his lesser role in the operation. The court concluded that the total sentences imposed on Hung and his co-offender were justified, taking into account the seriousness of the offence and the need to deter similar conduct in the future.

The appeal was dismissed, and Hung's sentence was upheld. The court emphasised the importance of proportionality in sentencing and the need for sentencing judges to consider the individual circumstances of each offender when imposing a sentence.

Orders