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Huynh v R

Huynh v R

Case [2022] NSWCCA 45 25 March 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Huynh v R [2022] NSWCCA 45
Hearing dates: 4 March 2022
Date of orders: 25 March 2022
Decision date: 25 March 2022
Before: Davies J at [1]
Bellew J at [2]
Fagan J at [42]
Decision: (1) The time in which to file a notice of appeal is extended until 26 October 2021.
(2) Leave to appeal in respect of ground 1 is refused.
(3) Leave to appeal in respect of ground 2 is granted.
(4) The appeal against sentence is allowed in respect of ground 2.
(5) The sentence imposed on the applicant in the District Court is quashed.
(6) In lieu thereof, the applicant is sentenced to imprisonment for 12 years commencing on 20 June 2014 and expiring on 19 June 2026.
(7) A non-parole period of 8 years is specified, commencing on 20 June 2014 and expiring on 19 June 2022.
Catchwords:
CRIMINAL LAW – Sentence – Appeal – Where applicant was convicted of conspiring to import a border controlled precursor – Where Crown case at trial asserted that the conspiracy encompassed four separate importations – Where the sentencing judge found that the applicant was actively involved in all importations – Whether the evidence was sufficient to establish such involvement beyond reasonable doubt – Where issue addressed in the course of a previous determination of the applicant's appeal against conviction – Where evidence supported the findings of the sentencing judge – Leave to appeal on that ground refused
CRIMINAL LAW – Offences – Sentence – Appeal – Error in the sentence imposed arising from a failure to take into account the entirety of the periods of the applicant's pre-sentence custody – Agreed position between the parties – Sentence quashed and applicant re-sentenced to correct the mathematical error – No requirement to engage in a fresh exercise of the sentencing discretion

Legislation Cited:
Crimes (Appeal and Review) Act 2001 (NSW)
Criminal Code 1995 (Cth)
Crimes Act 1914 (Cth)

Cases Cited:
Application of Huy Huynh under Part 7 of the Crimes(Appeal and Review) Act 2001 for an Inquiry [2020] NSWSC 1356
Cranney v R; Huynh v R [2017] NSWCCA 234; (2017) 269 A Crim R 449
Huynh v Attorney General (NSW) [2021] NSWCA 297
Huynh v Director of Public Prosecutions (Cth) [2021] NSWCCA 294
Huynh v The Queen [2019] HCASL 6
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
R v Christopher Phillip Cranney; R v Huy Bao Van Huynh [2015] NSWDC 276
RO v R [2019] NSWCCA 183

Category: Principal judgment
Parties: Huy Van Huynh – Applicant
Regina – Respondent
Representation:
Counsel:
Self-represented – Applicant (ground 1)
T Woods – Applicant (ground 2)
S Duggan – Respondent
Solicitors:
Self-represented – Applicant – (ground 1)
Andrews Solicitors – Applicant (ground 2)
Commonwealth Director of Public Prosecutions – Respondent

File Number(s): 2013/310184
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

[2015] NSWDC 276

Date 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 Huynh v R

Details

AGLC: Huynh v R [2022] NSWCCA 45
Case: [2022] NSWCCA 45
Decision Date: 25 March 2022

CaseChat Overview and Summary

The case of Huynh v R involved an appeal against the sentence imposed on the applicant, Huynh, who was convicted of conspiring to import a border controlled precursor. The Crown argued at trial that the conspiracy involved four separate importations, and the sentencing judge found Huynh to be actively involved in all four importations. The applicant's appeal against conviction had previously addressed the issue of whether the evidence was sufficient to establish his involvement beyond reasonable doubt. The court found that the evidence did support the findings of the sentencing judge, and Huynh's application for leave to appeal on this ground was refused.

The central legal issue in this appeal was whether the evidence was sufficient to establish Huynh's involvement in all four importations beyond reasonable doubt. The court considered this issue in the context of the applicant's previous appeal against conviction and found that the evidence did indeed support the findings of the sentencing judge. Furthermore, the court addressed an error in the sentence imposed by the original sentencing judge, which failed to take into account the entirety of the periods of Huynh's pre-sentence custody. The parties agreed on the position to be taken in relation to this error.

The court quashed the original sentence and re-sentenced Huynh to correct the mathematical error in the calculation of his pre-sentence custody. The court did not require a fresh exercise of the sentencing discretion, as the agreed position between the parties provided a clear basis for the correct sentence. The court's decision highlights the importance of ensuring that all relevant factors are taken into account when imposing a sentence, and that any errors in the calculation of pre-sentence custody are corrected without the need for a fresh exercise of the sentencing discretion.

Orders