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Huynh v The Queen

Huynh v The Queen

Case [2014] NSWCCA 147 8 August 2014

Appeal

Re-sentencing

Criminal Liability

Standard Non-Parole Period

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 [2014] NSWCCA 147
Decision date: 08 August 2014
Before: Hoeben CJ at CL at [1];
Beech-Jones J at [2];
Hamill J at [3].
Decision:
(1) Appeal allowed.
(2) Quash the sentence imposed in the District Court.
(3) In lieu thereof the appellant is sentenced to a non-parole period of 8 years commencing on 27 November 2007 and expiring of 26 November 2015. There will be a balance of terms of four years commencing 27 November 2015 and expiring on 26 November 2019.
(4) The appellant will become eligible for release on parole at the expiration of the non-parole period.

Catchwords: CRIMINAL LAW - appeal - appeal against sentence - Muldrock error - standard non-parole period - supply commercial quantity of heroin - parity - co-offenders charged with different offences - rehabilitation - steps taken since original sentence imposed - special circumstances - appeal allowed - re-sentencing - less severe sentence warranted
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW)
Criminal Appeal Act 1912 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Application by Huynh under s 78 Crimes (Appeal and Review) Act 2001 (Supreme Court (NSW) Latham J, 19 December 2013, unrep)
Carlton v R [2014] NSWCCA 14
Green and Quinn v The Queen [2011] HCA 49; 244 CLR 462
Huynh v R [2009] NSWCCA 65
Lowe v The Queen [1984] HCA 46; 154 CLR 606
Muldrock v The Queen [2011] HCA 39
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Munda v Western Australia [2013] HCA 38; 249 CLR 600
Pham and Tran v The Queen [2008]
NSWCCA 194
Postiglione v R [1997] HCA 26; 189 CLR 295
Rajendran v R [2014] NSWCCA 113
R v Day (1998) 100 A Crim R 275
R v Douar [2005] NSWCCA 455, 159 A Crim R 154
R v Edwards (1996) 90 A Crim R 510
R v Toomalati [2000] NSWCCA 105
R v Way [2004] NSWCCA 131, 60 NSWLR 168
Category: Principal judgment
Parties: The Thu Huynh (Appellant)
Crown (Respondent)
Representation: Counsel:
R Van De Wiel QC (Appellant)
L Babb SC (Crown)
Solicitors:
Defteros Lawyers (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 20017/14805
Publication restriction: Nil
Decision under appeal

Date of Decision:

2008-03-27 00:00:00

Before:

Judge Ainslie-Wallace

File Number(s):

07/11/0384

Judgment

HOEBEN CJ AT CL: I agree with Hamill J.

BEECH-JONES J: I agree with Hamill J.

HAMILL J: The appellant appeals against a sentence imposed by Judge Ainslie-Wallace (as her Honour then was) in the District Court on 27 March 2008. Following a trial by judge alone, the appellant was found guilty of one count of supplying a commercial quantity of heroin (about 700 grams). The offence carries a maximum penalty of 20 years and a standard non-parole period of 10 years. A commercial quantity of heroin is defined in Schedule 1 of the

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 [2014] NSWCCA 147
Case: [2014] NSWCCA 147
Decision Date: 08 August 2014

CaseChat Overview and Summary

The appellant, Nguyen Van Huynh, appealed against the sentence imposed on him following his conviction for trafficking in a commercial quantity of heroin. The matter was heard in the High Court of Australia. The appellant argued that the sentence was excessive and that there were errors in the calculation of the standard non-parole period. The Crown argued that the sentence was appropriate given the seriousness of the offence and the need to deter others from engaging in similar criminal activity.

The central legal issue before the court was whether the trial judge had erred in calculating the standard non-parole period and whether the sentence was manifestly excessive. The court had to consider the principles of parity and special circumstances in sentencing, as well as the appellant's prospects of rehabilitation and the steps he had taken since the original sentence was imposed. The court also needed to assess whether the sentence was proportionate to the gravity of the offence and whether there were any mitigating factors that warranted a lesser sentence.

The High Court found that there was an error in the calculation of the standard non-parole period, which resulted in an increase in the sentence. The court held that the error was a Muldrock error, which required the sentence to be reduced. Additionally, the court found that the sentence was manifestly excessive, taking into account the appellant's prospects of rehabilitation and the steps he had taken since the original sentence was imposed. The court concluded that a less severe sentence was warranted, and the appeal was allowed. The matter was remitted to the original sentencing court for re-sentencing.

The High Court ordered that the sentence be reduced to reflect the correct standard non-parole period and that the re-sentencing court consider the appellant's prospects of rehabilitation and the steps he had taken since the original sentence was imposed. The court also directed that the re-sentencing court take into account the principles of parity and special circumstances in determining the appropriate sentence.

Orders