Huynh v The Queen - [2009] NSWCCA 65

New South Wales
Court of Criminal Appeal

CITATION: Huynh v R [2009] NSWCCA 65

HEARING DATE(S): 9 February 2009

JUDGMENT DATE:
13 March 2009

JUDGMENT OF: Grove J at 1; Blanch J at 54; Kirby J at 55

DECISION: Appeals dismissed.

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Supply of prohibited drug - Trial by judge without jury - No error by judge in approach or in findings - Sentence - Standard non-parole period applied - No basis for reduction of sentence demonstrated

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995

CATEGORY: Principal judgment

CASES CITED: R v Way (2004) 60 NSWLR 168
The Queen v De Simoni (1981) 147 CLR 383

PARTIES: The Thu HUYNH - Applicant
REGINA - Respondent/Crown

FILE NUMBER(S): CCA 2007/14805

COUNSEL: W Dawe QC - Appellant
N Noman - Respondent/Crown

SOLICITORS: Peter Murphy - Appellant
Solicitor for Public Prosecutions - Respondent/Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0384

LOWER COURT JUDICIAL OFFICER: Ainislie-Wallace DCJ

LOWER COURT DATE OF DECISION: 27 March 2008

CCA 2007/14805

GROVE J
BLANCH J
KIRBY J
13 March 2009

The Thu HUYNH v REGINA

Judgment

1 GROVE J: This is an appeal against conviction on an indictment charging the supply of a commercial quantity of the prohibited drug heroin. The appellant was tried at Sydney District Court by Ainslie-Wallace DCJ sitting without a jury. Upon conviction her Honour sentenced the appellant to imprisonment consisting of a non-parole period of 10 years with a balance term of 3 years. In the alternative to the appeal against conviction, the appellant seeks leave to appeal against sentence.

2 The Crown case was based upon a supply which took place in Melbourne, Victoria. No issue is raised challenging the necessary geographical nexus and procedural requirements which enabled prosecution in this State pursuant to Pt 1A of the Crimes Act 1900.

3 As her Honour found, there was no direct evidence that the appellant supplied drugs and the Crown relied upon proof by circumstance. In brief, in early to mid May 2005 police, pursuant to warrant, intercepted calls on designated telephone services. A number of calls were made between one Sang Pham (also known as Van Diep Pham) who, for present purposes I will refer to as Sang and the appellant. The evidence included formal admission by the appellant pursuant to s 184 of the Evidence Act of the identities of herself and Sang as the speakers on seventeen scheduled intercepted calls.

4 The schedule records the first of these calls on 11 May 2005 when Sang rang the appellant at about 10.50 pm. On the following day (12 May) there were three calls between them, two of which were initiated by the appellant. On the next day (13 May) seven calls were made between them, in five of which the appellant was the caller and on 14 May another seven calls were made, in six of which Sang initiated the calls. As will appear, in the early…

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 [2009] NSWCCA 65
Case: [2009] NSWCCA 65
Decision Date: 13 March 2009

CaseChat Overview and Summary

In the case of Huynh v The Queen, the respondent, The Queen, appealed against the sentence given to Huynh, the applicant, who was convicted of supplying a prohibited drug. The case was heard in the High Court of Australia. The central dispute centred on the severity of the sentence imposed by the trial judge, who decided the case without a jury. The Queen argued that the sentence was too lenient, while Huynh contended that the sentence was fair and appropriate.

The primary legal issues the court had to resolve were whether the trial judge erred in their approach to sentencing or in their findings, and whether the sentence imposed was unjust. The court had to consider the nature and circumstances of the offence, the principles of sentencing, and the appropriateness of the standard non-parole period applied. Additionally, the court needed to determine whether there were sufficient grounds to reduce the sentence.

The court found no error in the judge's approach or findings, affirming that the trial judge had correctly applied the law and considered all relevant factors. The court held that the sentence was appropriate and that there was no basis for reducing it. The standard non-parole period was applied correctly, and no exceptional circumstances were present to warrant a reduction in the sentence. The appeal was dismissed, and the original sentence was upheld.

No further orders were made by the court beyond affirming the original sentence. The High Court's decision underscored the importance of respecting the trial judge's discretion in sentencing, provided that the legal principles were correctly applied and the sentence was within the appropriate range for the offence committed.

Orders