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Huynh v The Queen

Huynh v The Queen

Case [2017] VSCA 216 25 August 2017

Appeal

Sentence

Drug and firearm offences

Drug and other offences

Parity

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0224
S APCR 2016 0233

PHUONG HUU HUYNH	Applicant
v
THE QUEEN	Respondent
ALLAN BOONTONG AU	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 August 2017
DATE OF JUDGMENT:	25 August 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 216
JUDGMENT APPEALED FROM:	R v Huynh and Au (Unreported, County Court of Victoria, Judge Gucciardo, 24 August 2016)

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CRIMINAL LAW — Appeal — Sentence — Drug and firearm offences — State and Federal offences — Total effective sentence of 12 years’ imprisonment with non-parole period of 8 years — Delay — Whether judge erred in approach to — Whether sentence manifestly excessive — Sentences on State charges of trafficking amphetamine and methylamphetamine manifestly excessive — Appeal allowed — Appellant resentenced to total effective sentence of 11 years’ imprisonment with non-parole period 7 years.

CRIMINAL LAW — Appeal — Sentence — Drug and other offences — State and Federal offences — Total effective sentence of 9 years’ imprisonment with non-parole period 6 years — Parity — Applicant played lesser role than co-offender — Appeal allowed — Appellant resentenced to total effective sentence of 7 years and 6 months’ imprisonment with non-parole period 5 years.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Phuong Huu Huynh	Mr T Kassimatis QC and Ms M Tittensor	Michael Gleeson & Associates
For the Applicant Allan Boontong Au	Mr M D Stanton	Grigor Lawyers
For the Respondent (Commonwealth)	Ms K Breckweg	Commonwealth Director of Public Prosecutions
For the Respondent (State)	Mr M Phillips	Mr John Cain, Solicitor for Public Prosecutions

PRIEST JA

HANSEN JA:

Introduction

Phuong Huu Huynh and Allan Boontong Au (for convenience, ‘Huynh’ and ‘Au’ respectively) each seek leave to appeal against sentences imposed on them in the County Court on 24 August 2016 for drug and other offences.

In our opinion, each application for leave to appeal should be granted, the appeals allowed and the appellants resentenced as set out hereunder.

The sentences imposed

On 24 June 2016, Huynh and Au pleaded guilty to a Commonwealth indictment charging both Commonwealth and State offences. Huynh also pleaded guilty to drug charges on a State indictment, and Au pleaded guilty to related State summary charges. In the result, Huynh received a total effective sentence of 12 years’ imprisonment, with a non-parole period of eight years; and Au received a total effective sentence of nine years’ imprisonment, with a non-parole period of six years.

It is convenient to set out the sentences imposed on each applicant in tabular form:

Phuong Huu Huynh

Commonwealth Indictment

Charge Sentence Cumulation[1]

1 Import a marketable quantity of a border controlled precursor[2] 6 years 12 months

2 Import tier 2 goods[3] 4 years 9 months

3 Manufacture a marketable quantity of a controlled drug[4] 7 years Base

4 Pre-traffick in a controlled precursor[5] 3 years 12 months

7 Possess a drug of dependence[6] 3 months —

Total effective sentence 9 years and 9…

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 [2017] VSCA 216
Case: [2017] VSCA 216
Decision Date: 25 August 2017

CaseChat Overview and Summary

In the matter of Huynh v The Queen, the High Court of Australia considered two separate appeals concerning sentences imposed on the appellant for drug and firearm offences. The first appeal involved the appellant, Huynh, who had been sentenced to a total effective sentence of 12 years’ imprisonment with a non-parole period of 8 years for his involvement in drug trafficking and firearm offences. The second appeal concerned another appellant who had received a total effective sentence of 9 years’ imprisonment with a non-parole period of 6 years for drug trafficking and other offences.

The primary legal issues before the court were whether the sentencing judge erred in their approach to the sentences, whether the sentences were manifestly excessive, and whether the sentences on state charges were manifestly excessive. Additionally, the court considered whether the sentences imposed were disproportionate to the roles played by the appellants in the criminal activities.

In its reasoning, the court determined that the sentences imposed on both appellants were excessive. Regarding the first appellant, the court found that the sentencing judge had not properly considered the delay in bringing the matter to trial and that the total effective sentence was manifestly excessive. The court also found the sentences on the state charges to be manifestly excessive. Consequently, the appeal was allowed, and the appellant was resentenced to a total effective sentence of 11 years’ imprisonment with a non-parole period of 7 years. In the case of the second appellant, the court noted that the appellant played a lesser role than his co-offender, and therefore, the sentence was disproportionate. The appeal was also allowed, and the appellant was resentenced to a total effective sentence of 7 years and 6 months’ imprisonment with a non-parole period of 5 years.

Orders