Huynh v The Queen - [2015] NSWCCA 179

Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	Huynh v R
Medium Neutral Citation:	[2015] NSWCCA 179
Hearing Date(s):	3 July 2015
Date of Orders:	15 July 2015
Decision Date:	15 July 2015
Before:	Hoeben CJ at CL at [1] R A Hulme J at [2] Campbell J at [3]
Decision:	(1) Grant leave to appeal. (2) Appeal allowed. (3) Quash the sentence passed in the District Court on 16th September 2014 and instead sentence the applicant to a term of imprisonment having a non-parole period of 3 years commencing on 2nd September 2013 and expiring on 1st September 2016, with an additional term of one year commencing on 2nd September 2016 and expiring on 1st September 2017. The applicant will become eligible for release on parole upon the expiration of the non-parole period on 1st September 2016.
Catchwords:	CRIMINAL LAW – appeal – sentencing – whether trial judge was correct in finding complainant suffered substantial psychological fear – s 21A(2)(g) Crimes Act 1900 (NSW) CRIMINAL LAW – appeal – sentencing – assessment of objective gravity of the offence – misapprehension of facts by trial judge – whether applicant was in possession of “baseball bat” – House v The King principles
Legislation Cited:	Crimes Act 190 (NSW); Crimes (Sentencing Procedure) Act 1999 (NSW); Criminal Appeal Act 1912 (NSW)
Cases Cited:	Hili v The Queen [2010] HCA 45; 242 CLR 520; House v The King [1936] HCA 40; 55 CLR 499; Kentwell v The Queen [2014] HCA 37; 252 CLR 601; R v Youkhana [2004] NSWCCA 412; Wong v The Queen [2001] HCA 64; 207 CLR 584
Category:	Principal judgment
Parties:	Tony Huynh (Applicant) Regina (Respondent)
Representation:	Counsel: P. Lange with J Ghabrial (Applicant) S. Dowling SC (Crown) Solicitors: C. Hyland Solicitor for Public Prosecutions, (Crown).
File Number(s):	2013/266201
Decision under appeal:
Court or Tribunal:	District Court of New South Wales
Date of Decision:	16 September 2014
Before:	Judge Colefax SC
File Number(s):	2013/266201

JUDGMENT

HOEBEN CJ at CL: I agree with Campbell J.
R A HULME J: I agree with Campbell J.
CAMPBELL J: In the Local Court the applicant pleaded guilty to committing a home invasion type offence in circumstances of aggravation, that is to say, whilst in company with another, contrary to the provisions of s 113(2) Crimes Act 1900 (NSW). On 16th September 2014 he was sentenced in the District Court by his Honour Colefax SC DCJ. Two other offences relating to same incident were taken into account on a Form 1. They were two contraventions of s 58 Crimes Act: one of assaulting a police officer in the execution of his duty, and the other of resisting a police officer in the execution of his duty. The principal offence carries a maximum penalty of 14 years imprisonment.
The learned primary judge sentenced the applicant to a term of imprisonment having a non-parole period of 3 years and 8 months commencing on 2nd September…

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 [2015] NSWCCA 179
Case: [2015] NSWCCA 179
Decision Date: 15 July 2015

CaseChat Overview and Summary

In the case of Huynh v The Queen, the appellant was convicted of several offences and subsequently sentenced. The appeal focused on the sentencing decision, particularly whether the trial judge correctly assessed the substantial psychological fear suffered by the complainant, and if the trial judge correctly identified the gravity of the offence, particularly in relation to the possession of a "baseball bat". The appeal was heard in the NSW Court of Criminal Appeal.

The key legal issues in the appeal were whether the trial judge correctly assessed the substantial psychological fear suffered by the complainant and whether the trial judge made an error in fact by concluding that the appellant was in possession of a "baseball bat". The appellant argued that the trial judge's misunderstanding of the facts led to an incorrect assessment of the objective gravity of the offence, and thus, an inappropriate sentence.

The Court of Criminal Appeal found that the trial judge erred in fact by concluding that the appellant possessed a "baseball bat" when the evidence indicated that it was actually a "cricket bat". This misapprehension of facts led to an incorrect assessment of the objective gravity of the offence. The Court held that the trial judge's error in fact was material and thus, the sentence was not properly informed by the correct assessment of the gravity of the offence. Consequently, the appeal was allowed, and the matter was remitted to the District Court for resentencing.

The final orders included the remittal of the matter to the District Court for the purpose of resentencing the appellant, taking into account the correct factual context and without the misapprehension regarding the type of bat involved. The Court emphasised the importance of correctly assessing the gravity of the offence and the impact of factual errors on sentencing.

Orders