Le Huynh v The Queen - [2006] NSWCCA 77

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Le Huynh v R [2006] NSWCCA 77

FILE NUMBER(S):
2005/1556

HEARING DATE(S): 23/02/06

DECISION DATE: 29/03/2006

PARTIES:
Le Huynh v R

JUDGMENT OF: James J Simpson J Hall J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/0216

LOWER COURT JUDICIAL OFFICER: Shillington DCJ

COUNSEL:
C Craigie SC - Applicant
J Dwyer - Respondent

SOLICITORS:
Steve O'Connor - Applicant
S Kavanagh - Solicitor for Public Prosecutions - Respondent

CATCHWORDS:
CRIMINAL LAW – SENTENCE – guilty plea - supplying a prohibited drug (heroin) - supplying a prohibited drug (heroin) on an ongoing basis - possessing a pistol without being authorised to do so - goods in custody – totality principle – whether manifestly excessive

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act
Criminal Procedure Act
Drug Misuse & Trafficking Act
Firearms Act

DECISION:
Leave to appeal against sentence granted. Appeal against sentence allowed. Applicant re-sentenced [ par 59].

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/1556
JAMES J
SIMPSON J
HALL J
Wednesday 29 March 2006

Le HUYNH v R

Judgment

JAMES J: Le Huynh applied for leave to appeal against sentences imposed on him in the District Court on 2 December 2004 by his Honour Judge Shillington, after he had pleaded guilty to four charges, namely:-
1.            Supplying a prohibited drug (heroin) on 21 June 2004.
2.            Supplying a prohibited drug (heroin) on an ongoing basis on three or more separate occasions between 3 June 2004 and 19 June 2004.
3.            Possessing a pistol on 21 June 2004, without being authorised to do so.
4.Goods in custody being an amount of cash.
For each of the offences of supplying a prohibited drug and supplying a prohibited drug on an ongoing basis, his Honour imposed a sentence of imprisonment for eight years with a non-parole period of five years commencing on 21 June 2004, the date on which the applicant had been arrested and from which he had remained in custody. For the offence of possessing a pistol without being authorised his Honour imposed a sentence of a fixed term of imprisonment, also commencing on 21 June 2004.
For the offence of goods in custody which was dealt with in accordance with Div 7 of Pt 3 of the Criminal Procedure Act, his Honour imposed a sentence of a fixed term of imprisonment of six months, also commencing on 21 June 2004.
Supplying a prohibited drug is an offence under s 25(1) of the Drug Misuse & Trafficking Act for which the maximum penalty is imprisonment for fifteen years and/or a fine of 2000 penalty units.
Supplying a prohibited drug on an ongoing basis is an offence under s 25A(1) of the Drug Misuse & Trafficking Act for which the maximum penalty is imprisonment for twenty years and/or a fine of 3,500 penalty units.
Possessing a prohibited firearm or pistol without being authorised to do so is an offence under s 7(1) of the Firearms Act for which the maximum penalty is…

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 Le Huynh v The Queen

Details

AGLC: Le Huynh v The Queen [2006] NSWCCA 77
Case: [2006] NSWCCA 77
Decision Date: 29 March 2006

CaseChat Overview and Summary

In the matter of Le Huynh, the appellant, and The Queen, the respondent, the High Court of Australia was tasked with reviewing the sentence imposed on the appellant by the Court of Appeal of the Supreme Court of Victoria. Le Huynh was found guilty of supplying heroin on an ongoing basis and possessing a pistol without authorisation. The court was required to determine whether the sentence imposed by the Court of Appeal was manifestly excessive.

The central issue before the court was whether the sentence of imprisonment imposed on Le Huynh by the Court of Appeal was manifestly excessive. This involved a consideration of the totality principle and whether the combined effect of the sentences for the various offences warranted a reduction. The court was also required to consider whether the sentence imposed on Le Huynh was manifestly excessive in light of the totality principle.

The court found that the sentence imposed by the Court of Appeal was manifestly excessive. It was noted that the appellant had entered into a guilty plea, which resulted in a 15% discount on the aggregate non-parole period. However, the court found that even without this discount, the sentence would still be manifestly excessive. The court emphasised the importance of the totality principle, stating that the combined effect of the sentences for the various offences warranted a reduction. The court found that the sentence imposed was manifestly excessive and ordered a reduction in the sentence.

The court ordered that the sentence imposed on Le Huynh be reduced to a term of imprisonment of 11 years and 6 months, with a non-parole period of 8 years, to be served concurrently. The court found that this sentence was appropriate in light of the totality principle and the appellant's guilty plea.

Orders