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Huynh v R

Huynh v R

Case [2015] NSWCCA 167 25 June 2015

Criminal Liability

Sentencing

Criminal Law

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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 dismissed

Catchwords: 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 265
Category: Principal judgment
Parties: Thi Hien Huynh also known as
Nhu Mai Huynh Nguyen (Applicant)
Crown (Respondent)
Representation:
Counsel:
In person (Applicant)
J Single (Respondent)
Solicitors:
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

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.
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.
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…

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 [2015] NSWCCA 167
Case: [2015] NSWCCA 167
Decision Date: 25 June 2015

CaseChat Overview and Summary

The case of Huynh v R concerned the sentencing of a woman who had been convicted of importing border controlled drugs. The woman, a mother of three young children, had previously been convicted of a similar offence. Her husband, who was the father of her children, had been denied a visa due to the applicant's criminal history. The central issue before the court was whether the sentence imposed on the woman was manifestly excessive, particularly in light of the impact it would have on her family. The case was heard in the High Court of Australia.

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