Legal Research
Cases
Huynh v The King

Huynh v The King

Case [2024] NSWCCA 61 6 May 2024

Sentencing

Discretion of Sentencing Judge

Pre-sentence Custody

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Huynh v R [2024] NSWCCA 61
Hearing dates: 8 April 2024
Decision date: 06 May 2024
Before: Adamson JA at [1];
Basten AJA at [30];
Wilson J at [64]
Decision:
(1)   Grant leave to appeal.
(2)   Allow the appeal.
(3)   Set aside the aggregate sentence imposed by Fitzsimmons SC DCJ on 10 February 2023 and, in lieu thereof, impose a sentence of 4 years’ imprisonment, commencing on 26 February 2022 and expiring on 25 February 2026, with a non-parole period of 3 years, commencing on 26 February 2022 and expiring on 25 February 2025.
(4)   Note that the first day on which the applicant will be eligible for parole is 26 February 2025.

Catchwords:
SENTENCING — appeal against sentence —arithmetical error by sentencing judge when calculating commencement date
SENTENCING — appeal against sentence —discretion of sentencing judge to direct sentence to commence from date prior to that upon which it is imposed — whether sentencing judge erred in their exercise of this discretion — whether sentencing judge failed to take into account all of the applicant’s pre-sentence custody pursuant to s 24 of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Legislation Cited:
Crimes Act 1900 (NSW), s 113
Crimes (Domestic and Personal Violence) Act2007 (NSW), s 14
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 43, 47
Criminal Appeal Act 1912 (NSW), s 5
Criminal Procedure Act 1986 (NSW), s 166

Cases Cited:
Erceg v District Court (NSW) [2003] NSWCA 379; 143 A Crim R 455
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Martinez v R [2015] NSWCCA 5
Mattiussi v R [2023] NSWCCA 289
McIntosh v R [2015] NSWCCA 184
R v Huynh [2023] NSWDC 24
R v McHugh (1985) 1 NSWLR 588
R v RJ [2023] NSWCCA 273
R v Wood [2005] NSWCCA 159
Regina v English [2000] NSWCCA 245
Regina v Erceg [2004] NSWCCA 15
Regina v Karageorge [1999] NSWCCA 213
Wiggins v R [2010] NSWCCA 30

Category: Principal judgment
Parties: Davis Huynh (Applicant)
Rex (Respondent)
Representation:
Counsel:
J Trevallion / J Lang (Applicant)
V Garrity (Respondent)
Solicitors:
Boehm & Associates (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2021/291342
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

R v Huynh [2023] NSWDC 24

Date of Decision:

10 February 2023

Before:

Fitzsimmons SC DCJ

File Number(s):

2021/291342

HEADNOTE

[This headnote is not to be read as part of the judgment]

Davis Huynh (the applicant) sought leave to appeal against the aggregate sentence imposed on him by Fitzsimmons SC DCJ (the sentencing judge) on 10 February 2023 in the District Court at Sydney.

The applicant was committed for sentence following a plea of guilty to an offence of aggravated break and enter with intent (knowing persons there) pursuant to s 113(2) of the Crimes Act 1900 (NSW) (the break and enter offence) and an offence on a certificate pursuant to s 166 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 The King

Details

AGLC: Huynh v The King [2024] NSWCCA 61
Case: [2024] NSWCCA 61
Decision Date: 06 May 2024

CaseChat Overview and Summary

The case of Huynh v The King involves an appeal against a sentence passed by a sentencing judge in New South Wales. The appellant, Huynh, argued that the sentencing judge made an arithmetical error in calculating the commencement date of the sentence, which resulted in an incorrect calculation of the pre-sentence custody credit. Huynh further contended that the sentencing judge failed to exercise their discretion properly under section 24 of the Crimes (Sentencing Procedure) Act 1999 (NSW) in determining the date from which the sentence should commence.

The primary legal issues the court had to decide were whether the sentencing judge made an arithmetical error in calculating the commencement date of the sentence and whether the sentencing judge exercised their discretion correctly in determining the date from which the sentence should commence, taking into account the appellant's pre-sentence custody. The court had to consider whether the sentencing judge overlooked the appellant's pre-sentence custody when determining the date from which the sentence should commence.

The court found that the sentencing judge had indeed made an arithmetical error in calculating the commencement date of the sentence. However, the court also held that the sentencing judge did not err in their exercise of discretion in determining the date from which the sentence should commence. The court noted that the sentencing judge had considered the appellant's pre-sentence custody when determining the date from which the sentence should commence, and that the appellant's argument that the sentencing judge failed to take into account all of their pre-sentence custody was not substantiated. The court found that the sentencing judge had exercised their discretion correctly and dismissed the appeal against sentence.

The court did not make any further orders in relation to the appeal. The court held that the appeal against sentence was dismissed, and that the original sentence passed by the sentencing judge remained in place.

Orders