R v Huynh - [2001] NSWCCA 269

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Huynh [2001] NSWCCA 269

FILE NUMBER(S):
60731/2000

HEARING DATE(S): 29 June 2001

JUDGMENT DATE: 29/06/2001

PARTIES:
Regina
Thi Xua Huynh

JUDGMENT OF: Wood CJ at CL Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/21/2245

LOWER COURT JUDICIAL OFFICER: Woods DCJ

COUNSEL:
M C Grogan (Crown)
P. R. Boulten (Applicant)

SOLICITORS:
S E O'Connor
Mark Klees & Associates

CATCHWORDS:
CRIMINAL LAW - appeals - appeal against sentence - deemed supply of trafficable quantity of heroin - whether special circumstances justifying departure from the ratio between non-parole period and term of sentence - possible confusion between "exceptional circumstances" appropriate for non-custodial sentence and "special circumstances" appropriate for departure from ratio - special circumstances found.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 199 x 44(2), s 51

DECISION:
Leave to appeal granted
Appeal allowed, reducing non-parole period to 12 months from 10 November 2000 and to expire on 9 November 2001.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
60731/00

WOOD CJ at CL
HOWIE J

FRIDAY 29 JUNE 2001

REGINA v THI XUA HUYNH

JUDGMENT

WOOD CJ at CL: The applicant seeks leave to appeal against a sentence of two years' imprisonment with a non-parole period of sixteen months, imposed by his Honour Acting Judge Woods in the District Court, following her conviction after trial by his Honour sitting without a jury.
The offence of which she was convicted was one of deemed supply of not less than a trafficable quantity of heroin, the relevant amount being 6.6 grams.
The facts, as found by his Honour, may be summarised fairly briefly. In the course of a surveillance operation, directed principally towards her son, police arrested the applicant while she was sitting in a motor vehicle. While there she was seen by police to throw out of the vehicle a bundle containing thirty-six balloons, each of which contained heroin.
As I have observed, the total weight of the substance found in these balloons was 6.6 grams, a quantity being not less than the trafficable quantity applicable for heroin. Also arrested at the same time was her son Anh Huynh Luong. He had been observed to throw onto her lap, when police arrived at the scene, five further balloons wrapped in tissue. The weight of the substance contained in those balloons was .83 grams. However, the conviction of the applicant was confined to the quantity contained in the thirty-six balloons.
The applicant does not seek to challenge the term of the sentence, the appeal being confined to the non-parole period.
In that regard, it is submitted that his Honour erred in failing to find special circumstances and, as a consequence, in not providing a sufficient reduction in the ratio between the non-parole period and the term of the sentence, in accordance with section 44 of the Crimes (Sentencing Procedure) Act.
Before turning to that submission, it may be noted that there was one clear error in the sentencing order, so far…

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 Huynh

Details

AGLC: R v Huynh [2001] NSWCCA 269
Case: [2001] NSWCCA 269
Decision Date: 29 June 2001

CaseChat Overview and Summary

The defendant, Huynh, was convicted of supplying a trafficable quantity of heroin and was sentenced to imprisonment. Huynh appealed against the length of his sentence, arguing that special circumstances justified a departure from the standard ratio between the non-parole period and the total term of his sentence. The appeal raised the question of whether the trial judge had correctly identified and applied the principles governing special circumstances and whether there was any confusion between the exceptional circumstances that might warrant a non-custodial sentence and the special circumstances relevant to varying the ratio in a custodial sentence.

The court examined the principles established in previous case law, clarifying the distinction between exceptional circumstances that might lead to a non-custodial sentence and special circumstances that could justify a variation in the ratio of a custodial sentence. The court found that the trial judge had indeed identified the correct principles but had not adequately applied them. Huynh's background, including his personal circumstances and the nature of his involvement in the offence, were considered as special circumstances that warranted a departure from the standard sentencing ratio. The court concluded that the trial judge's error in not sufficiently considering these factors as special circumstances justified the appeal.

Ultimately, the appeal was allowed, and the case was remitted to the trial court for resentencing. The court emphasised that special circumstances, such as Huynh's background and the nature of his involvement, warranted a reconsideration of the sentence ratio. The final orders of the court mandated that the trial judge reassess the sentence in light of the special circumstances identified on appeal, ensuring that the ratio between the non-parole period and the total term of the sentence appropriately reflected these factors.

Orders