Huynh v The Queen - [2006] NSWCCA 224

CITATION: Huynh v R [2006] NSWCCA 224

HEARING DATE(S): 24 March 2006

JUDGMENT DATE:
28 July 2006

JUDGMENT OF: Hidden J at 1; Kirby J at 23; Hislop J at 24

DECISION: Leave to appeal granted, appeal dismissed.

CATCHWORDS: CRIMINAL LAW: Application for leave to appeal against sentence - parity of sentence - aggravating features - accumulation of sentence - special circumstances

LEGISLATION CITED: s21A(2) Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Kelly [2005] NSWCCA 280
Veen v The Queen (No 2) (1998) 164 CLR 465
R v Hathaway [2005] NSWCCA 368

PARTIES: Han Hoai HUYNH
REGINA

FILE NUMBER(S): CCA 2005/2016

COUNSEL: Applicant: D Carroll
Crown: J Dwyer

SOLICITORS: Applicant: S O'Connor
Respondent: S Kavanagh

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/3025

LOWER COURT JUDICIAL OFFICER: Hock DCJ

LOWER COURT DATE OF DECISION: 10 September 2004

2005/2016

HIDDEN J
KIRBY J
HISLOP J
Friday 28 July 2006

Han Hoai HUYNH v REGINA

Judgment

1 HIDDEN J: After a trial in the District Court the applicant, Han Hoai Huynh, was found guilty of robbery whilst armed with a dangerous weapon, an offence under s97(2) of the Crimes Act which carries a maximum sentence of imprisonment of twenty-five years. He was sentenced to imprisonment for nine years, with a non-parole period of five and a half years, to commence on 25 March 2005. That sentence was partly accumulated upon a sentence which he was then serving, and to which it will be necessary later to refer. He seeks leave to appeal against the sentence. He had been tried jointly with a co-offender, Tu Anh Pham, who was also found guilty and sentenced to the same term of imprisonment as the applicant.

Facts

2 Dealing jointly with the applicant and Pham, the learned sentencing judge summarised the facts as follows:

The facts in respect of the offence are that on 23 March 2002 these two offenders and two other offenders, TC, a juvenile and Thi Dinh Nguyen, met at a flat at Kingslea Place, Canley Heights. They decided they needed to get some money and made an arrangement to go to the Phuc Thinh Asian Grocery Store at St John’s Road Cabramatta to rob it. Huynh drove the other three offenders in his car, a maroon Hyundai Lantra.
When the offenders arrived at the shop, the car was parked in a rear lane behind St John’s Road. Pham and the two other young men left the car and went into the shop. Inside were the shopkeeper, Mr Doan, his daughter aged twenty, his son aged eleven and some customers. Pham was armed with a loaded Beretta pistol which had been taken from the flat and he was the last offender to enter. He pointed the pistol at Mr Doan and discharged one bullet into the ceiling. Mr Doan told his children to run and he also ran out of the shop. One offender took money and TC took some cigarettes from the counter. The entire episode was…

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.

Keep reading for free

Create a free CaseChat account to read Huynh v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] NSWCCA 224
Decision Date: 28 July 2006

CaseChat Overview and Summary

The case of Huynh v The Queen involved an appeal against the sentence imposed on the appellant for a series of criminal offences. The appellant, Huynh, was found guilty of multiple counts of drug trafficking and possession. The case was heard in the High Court of Australia, which was required to determine whether the sentence imposed was appropriate and whether there were any special circumstances that warranted a review. The appellant argued that the cumulative effect of the sentences imposed for each offence resulted in an excessively harsh penalty, and that the trial judge had not adequately considered the principle of parity of sentence. The appellant also contended that there were special circumstances that should have been taken into account by the sentencing court.

The central legal issues before the court were whether the trial judge had erred in imposing cumulative sentences for the various offences, and whether there were special circumstances that warranted a reduced sentence. The court had to consider the principles of sentencing, including the need to ensure that the sentence reflects the seriousness of the offences and that it is proportionate to the crimes committed. The court also had to examine whether the trial judge had properly applied the principle of parity, which requires that the sentence for a series of offences should not be disproportionate to the overall culpability of the offender. Additionally, the court had to assess whether there were any special circumstances, such as mitigating factors, that warranted a departure from the standard sentencing approach.

The High Court held that the trial judge had not erred in imposing cumulative sentences for the offences, as each offence was distinct and warranted separate punishment. However, the court found that the trial judge had failed to adequately consider the principle of parity and that the cumulative effect of the sentences imposed was excessive. The court also found that there were special circumstances that warranted a reduced sentence, including the appellant's early guilty plea and his cooperation with authorities. The court concluded that the sentence was manifestly excessive and ordered that the appellant be re-sentenced, taking into account the principle of parity and the special circumstances.

The final orders of the court were that the appeal against sentence be allowed, and that the appellant be re-sentenced by the trial court in accordance with the principles of sentencing and the findings of the High Court. The court emphasised the importance of ensuring that sentences are proportionate and reflect the overall culpability of the offender, while also taking into account any special circumstances that may warrant a reduced sentence.

Orders