Court of Criminal Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Huynh v R [2015] NSWCCA 167 Hearing dates: 10 June 2015 Date of orders: 25 June 2015 Decision date: 25 June 2015 Before: Simpson J at [1]
Davies J at [2]
Hamill J at [54]Decision: (1) Grant leave to appeal.
(2) Appeal dismissedCatchwords: CRIMINAL LAW – sentencing – importing border controlled drugs – mother of three children under 18 – father denied visa because of applicant’s criminality – effect of sentence on applicant’s family – applicant previously convicted of importing border controlled drugs – whether sentence manifestly excessive Legislation Cited: Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)
Customs Act 1901 (Cth)Cases Cited: Colomer v R [2014] NSWCCA 51
Gallagher v The Queen (1986) 160 CLR 392
R v Fordham (1997) 98 A Crim R 359
R v Nguyen [2006] NSWDC1; (2006) 3 DCLR (NSW) 216
R v Nguyen [2006] NSWCCA 369; (2006) 205 FLR 79
R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23
R v Zerafa [2013] NSWCCA 222; (2013) 235 A Crim R 265Category: Principal judgment Parties: Thi Hien Huynh also known as
Nhu Mai Huynh Nguyen (Applicant)
Crown (Respondent)Representation: Counsel:
Solicitors:
In person (Applicant)
J Single (Respondent)
Self-represented (Applicant)
Commonwealth Director of Public
Prosecutions (Respondent)
File Number(s): 2013/189225 Decision under appeal
- Court or tribunal:
- District Court of NSW
- Jurisdiction:
- Criminal
- Date of Decision:
- 10 July 2014
- Before:
- Lerve DCJ
- File Number(s):
- 2013/189225
Judgment
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SIMPSON J: I agree with Davies J.
-
DAVIES J: On 6 November 2013 the Applicant pleaded guilty in the Local Court to an offence that on 20 June 2013 she imported a marketable quantity of a border controlled drug, namely heroin, contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for this offence is 25 years imprisonment and/or a fine of $1,275,000.
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An offence of importing prohibited tier one goods without approval, namely pseudoephedrine, was taken into account on sentence pursuant to s 16BA of the Crimes Act 1914 (Cth). The maximum penalty for this offence is 5 years imprisonment and/or a fine of $170,000.
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The Applicant was sentenced by his Honour Judge Lerve to imprisonment for seven years commencing 20 June 2013 and expiring 19 June 2020 with a non-parole period of four years expiring 20 June 2017.
-
The Applicant, who appears unrepresented, has filed a Notice of Appeal containing the following grounds:
1. Mother is unwell, residing in overseas country (Vietnam).
2. Three children (9 years old, 16 years old and 18 years old) currently residing in Australia.
I have recently been diagnosed with diabetes due to stress, I would like to try reduce my sentence for more parole time if possible as I need my children and they need me due to hard times.
3. Interpreter need (sic) (Vietnamese).
-
The Crown has inferred that these grounds of appeal are in substance, first, that the overall sentence was…
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- AGLC
- Huynh v R [2015] NSWCCA 167
- Case
- [2015] NSWCCA 167
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the appropriate weight to be given to the impact of the sentence on the applicant's family, the need for general and specific deterrence, and the need to ensure that sentences for similar offences are consistent. The court also considered the principle of proportionality, which requires that the severity of a sentence should be commensurate with the seriousness of the offence. The court had to balance these considerations against the need to maintain public confidence in the criminal justice system.
The court found that the sentence imposed on the applicant was manifestly excessive. It took into account the impact of the sentence on the applicant's family, including the fact that her husband had been denied a visa due to her criminal history. The court also considered the need for general and specific deterrence, as well as the need to ensure consistency in sentencing for similar offences. The court concluded that the sentence imposed on the applicant was disproportionate to the seriousness of the offence and was therefore manifestly excessive. The sentence was quashed and the case was remitted to the Court of Appeal for re-sentencing.
The final orders of the court included the quashing of the original sentence and the remission of the case to the Court of Appeal for re-sentencing. The court did not impose a new sentence but rather directed that the Court of Appeal consider the appropriate sentence in light of the principles outlined in the judgment. The court emphasised the importance of proportionality in sentencing and the need to consider the impact of a sentence on the offender's family.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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