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R v Huang

R v Huang

Case [2010] NSWCCA 68 21 April 2010

Conspiracy to Cheat and Defraud

Appeal

Sentence

Criminal Law

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Reported Decision: 200 A Crim R 419

New South Wales

Court of Criminal Appeal

CITATION: R v Huang [2010] NSWCCA 68
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 5 February 2010

JUDGMENT DATE:
21 April 2010

JUDGMENT OF: Grove J at 1; Simpson J at 9; RA Hulme J at 84

DECISION: Crown appeal dismissed

CATCHWORDS: CRIMINAL LAW – particular offences – property offences – conspiracy to cheat and defraud – CRIMINAL LAW – appeal against sentence – appeal by Crown – approach to Crown appeals of sentences to be served other than by full-time custody – sentence manifestly inadequate by reason of suspension – delay in sentencing – rehabilitation of respondent – application of s 68A of the Crimes (Appeal and Review) Act 2001 as explained in R v JW [2010] NSWCCA 49 – discretion not to intervene exercised – approach to reduction of sentence for utilitarian value – Crown appeal dismissed

LEGISLATION CITED: Crimes (Administration of Sentences) Act 1999
Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154
R v JW [2010] NSWCCA 49
R v Thai [2009] NSWCCA 314
R v Thomson & Houlton [2000] NSWCCA 309, 49 NSWLR 383
R v Wegener [1999] NSWCCA 405
R v Zamagias [2002] NSWCCA 17
Reed v R [2007] NSWCCA 4
Stevens v R [2009] NSWCCA 260

PARTIES: Regina (Applicant)
Jun Yu Huang (Respondent)

FILE NUMBER(S): CCA 2008/12350

COUNSEL: P Leask (Applicant)
G Turnbull SC (Respondent)

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) (Applicant)
Justin Lewis & Co (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/12350

LOWER COURT JUDICIAL OFFICER: North DCJ

LOWER COURT DATE OF DECISION: 14 August 2009

2008/12350

GROVE J
SIMPSON J
R A HULME J
21 April 2010

R v Jun Yu HUANG

Judgment

1 GROVE J: I have had the advantage of reading, in draft form, the respective judgments of Simpson J and RA Hulme J. As, like the latter, I agree with the order proposed by Simpson J I will limit the matters to which I advert or upon which I comment.

2 It is not necessary to repeat the facts and circumstances, the statements of which I gratefully adopt from the judgment of Simpson J. However, even giving generous weight to factors favourable to the respondent, I would consider the combination of the objective gravity of the indicted offence, the need to reflect the criminality in the offences scheduled in the Form 1 and the subjective matters unfavourable to the respondent including his prior criminal record, generally and for offences of a like nature, his failure to respond appropriately to significant leniency previously received and the currency of a bond to be of good behaviour, leads to an assessment of the sentence as…

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 R v Huang

Details

AGLC: R v Huang [2010] NSWCCA 68
Case: [2010] NSWCCA 68
Decision Date: 21 April 2010

CaseChat Overview and Summary

The case of R v Huang was heard in the New South Wales Court of Criminal Appeal. The respondent, Huang, was convicted of conspiracy to cheat and defraud, a charge arising from a fraudulent scheme involving the sale of goods. The Crown appealed the sentence imposed on Huang, arguing that it was manifestly inadequate. The appeal was particularly focused on the fact that Huang's sentence was suspended, and there had been a significant delay in sentencing. Huang had also demonstrated rehabilitation, which the Crown contended should not be a factor in reducing the sentence.

The legal issues before the court were the appropriate approach to sentencing in Crown appeals, particularly where the sentence involves a period of time to be served other than by full-time custody. The court had to consider whether the sentence was manifestly inadequate by reason of its suspension, the delay in sentencing, and the respondent's rehabilitation. Additionally, the court needed to determine the application of section 68A of the Crimes (Appeal and Review) Act 2001, as explained in R v JW, in the context of a Crown appeal against sentence.

The court held that the discretion not to intervene in the sentence was properly exercised, given Huang's demonstrated rehabilitation and the other mitigating factors. The court considered the principles outlined in R v JW, which emphasised the importance of the utilitarian value of the sentence in determining its adequacy. The court found that the sentence, while suspended, still served a deterrent and rehabilitative purpose. Given these factors, the Crown's appeal was dismissed, and the original sentence was upheld.

Orders