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Huynh v The Queen

Huynh v The Queen

Case [2018] NSWCCA 237 19 October 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Huynh v R [2018] NSWCCA 237
Hearing dates: 18 April 2018
Date of orders: 19 October 2018
Decision date: 19 October 2018
Before: Hoeben CJ at CL at [1]
Fullerton J at [2]
Davies J at [55]
Decision:
1. Time for the filing of the Notice of Appeal is extended to 29 January 2018.
2. Leave to appeal is granted.
3. The appeal is dismissed.

Catchwords: SENTENCE – applicant entered plea of guilty to an offence contrary to ss 25(2) and 26 of the Drug Misuse and Trafficking Act 1985 (NSW) – applicant entered plea of guilty to s 7(1) of the Firearms Act 1996 (NSW) – whether the sentencing judge erred in application of the standard non-parole period – whether the sentencing judge erred in his finding of the objective seriousness of the offending – whether the sentencing judge failed to have regard to the parity principle
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 26
Firearms Act 1996 (NSW), ss 7(1), 36(1)
Cases Cited: Carter v R [2018] NSWCCA 138
Elshani v R [2015] NSWCCA 254
Gordon v R [2018] NSWCCA 54
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Kremisis v R [2016] NSWCCA 257
Lloyd v R [2017] NSWCCA 303
Matthews v R; New v R [2018] NSWCCA 186
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Nguyen v R [2017] NSWCCA 39
R v DW [2012] NSWCCA 66
R v Hinton [2002] NSWCCA 405
R v Shortland [2018] NSWCCA 34
R v Togias [2001] NSWCCA 522
R v Zerafa [2013] NSWCCA 222
Category: Principal judgment
Parties: Phoi Nhi Huynh (Applicant)
The Crown (Respondent)
Representation:
Counsel:
I McLachlan (Applicant)
N Adams (Crown)
Solicitors:
Blair Criminal Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2013/329530
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

12 February 2016

Before:

Armitage ADCJ

File Number(s):

2013/329530

Judgment

HOEBEN CJ at CL: I agree with Fullerton J and the orders which she proposes.
FULLERTON J: The applicant seeks leave to appeal an aggregate sentence of 8 years imprisonment, comprised of a non-parole period of 5 years and an additional term of 3 years, imposed by Armitage DCJ on 12 February 2016 following the applicant’s pleas of guilty to two counts on an indictment presented in the District Court on 2 February 2015. The aggregate sentence was ordered to commence on 30 June 2015 to account for pre-sentence custody. The non-parole period is due to expire on 29 June 2020.
The first count alleged a conspiracy to supply a commercial quantity of a prohibited drug (pseudoephedrine) contrary to ss 25(2) and 26 of the Drug Misuse and Trafficking Act 1985 (NSW). That offence carries a maximum penalty of 20 years imprisonment.
The second count alleged the applicant’s possession of a prohibited pistol contrary to…

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 Queen

Details

AGLC: Huynh v The Queen [2018] NSWCCA 237
Case: [2018] NSWCCA 237
Decision Date: 19 October 2018

CaseChat Overview and Summary

In this matter, the applicant, Huynh, appealed against his sentence imposed by the District Court. The applicant pleaded guilty to charges under sections 25(2) and 26 of the Drug Misuse and Trafficking Act 1985 (NSW) and section 7(1) of the Firearms Act 1996 (NSW). The appeal raised questions about the correctness of the standard non-parole period, the assessment of the objective seriousness of the offending, and whether the sentencing judge appropriately considered the parity principle.

The court considered whether the sentencing judge had erred in setting the standard non-parole period, which was determined to be four years. The applicant argued that the sentencing judge had misapplied the relevant principles and that the non-parole period should have been shorter. Additionally, the court examined the assessment of the objective seriousness of the offending, with the applicant contending that the judge had failed to properly consider the totality of the circumstances. The applicant also argued that the sentencing judge had not adequately addressed the parity principle, which requires consistency in sentencing for similar offences.

The court found that while there was some merit in the applicant's arguments, the sentencing judge had not made any significant errors in determining the standard non-parole period. The court also concluded that the sentencing judge had appropriately assessed the objective seriousness of the offending, taking into account all relevant factors. Furthermore, the court determined that the sentencing judge had indeed considered the parity principle and had not failed to have regard to it. As a result, the appeal was dismissed.

The court did not alter the sentence imposed by the District Court. The applicant's conviction and sentence remained unchanged.

Orders