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R v Huynh

R v Huynh

Case [2008] NSWCCA 16 8 February 2008

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New South Wales
Court of Criminal Appeal

CITATION: R v HUYNH [2008] NSWCCA 16

HEARING DATE(S): 4 February 2008

JUDGMENT DATE:
8 February 2008

JUDGMENT OF: McClellan CJ at CL at 1; Grove J at 2; Fullerton J at 32

DECISION: Crown appeal allowed
Sentence in District Court quashed
Resentenced

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Courier importing heroin secreted internally within her body - Conduct undertaken for reward so as to reduce gaming debts - Erroneous finding of duress - Inadequacy of sentence - Assessment below detectable pattern - Apparent overestimation of mitigatory factors - Crown appeal allowed

LEGISLATION CITED: Crimes Act 1914

CATEGORY: Principal judgment

CASES CITED: Everett v The Queen (1994) 181 CLR 295
Mulato v R [2006] NSWCCA 282
R v Chew [2004] NSWCCA 26
R v Dang [2004] NSWCCA 269
R v Le [2006] NSWCCA 136
Regina v To [2007] NSWCCA 200

PARTIES: REGINA (Appellant)
Thi Thu Trang HUYNH (Respondent)

FILE NUMBER(S): CCA 2007/4428

COUNSEL: M Wigney SC (Appellant)
C Davenport SC (Respondent)

SOLICITORS: Commonwealth Director of Public Prosecutions (Appellant)
Legal Aid Commission (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0553

LOWER COURT JUDICIAL OFFICER: Woods DCJ

LOWER COURT DATE OF DECISION: 13 September 2007

CCA 2007/4428
McCLELLAN CJ at CL
GROVE J
FULLERTON J

8 February 2008

REGINA v Thi Thu Trang HUYNH

Judgment

1 McCLELLAN CJ at CL: I agree with Grove J.

2 GROVE J: This is a Crown appeal asserting the manifest inadequacy of sentence imposed by Woods DCJ at Sydney District Court. The respondent had been committed for sentence following her plea of guilty in the Local Court to a charge of importing a marketable quantity of a border controlled drug, namely heroin. The marketable quantity is specified as 2 grams and the commercial quantity is reached at 1.5 kilograms. In the present instance, the gross weight of drug was 141.30 grams with a pure content of 108 grams. The Crown facts estimated a wholesale value of about $49,840 and a street value of between $90,000 and $270,000. The respondent was sentenced to imprisonment for four years with a non-parole period of two years.

3 The evidence consisted of a statement of facts, the transcript of interview between the police and the respondent, a pre-sentence report and some oral testimony given by the respondent. The primary conduct out of which the offence arose was not in dispute.

4 On 9 March 2007 the respondent arrived at Sydney Kingsford Smith Airport on a flight which had originated in Ho Chi Minh City (Saigon), Vietnam. At the customs barrier she was approached by officers and consented to undergo an internal search. Australian Federal Police officers took her to St George Hospital where a CT scan revealed the presence of four foreign objects in her lower intestine. She was arrested. Over the following hours she passed these objects and subsequent analysis revealed them to contain white powder which was analysed to constitute the drug abovementioned.

5…

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 [2008] NSWCCA 16
Case: [2008] NSWCCA 16
Decision Date: 8 February 2008

CaseChat Overview and Summary

In the case of R v Huynh, the respondent pleaded guilty to drug importation offences, having concealed heroin within her body and attempted to smuggle it into Australia. The sentencing court had imposed a term of imprisonment but the Crown sought to appeal the adequacy of the sentence. The appeal focused on the inadequacy of the sentence given the respondent's role in the importation of a significant quantity of heroin and the circumstances in which she undertook the offence. The court considered whether the sentence was manifestly inadequate and whether the sentencing judge had adequately considered the appropriate punishment for the crime committed.

The appeal court identified several errors in the sentencing process. The sentencing judge had incorrectly found the respondent to be acting under duress, which was not supported by the evidence. Additionally, the court found that the sentencing judge had underestimated the seriousness of the offence by assessing the quantity of drugs below the detectable pattern. The appeal court also identified an apparent overestimation of mitigatory factors, including the respondent's personal circumstances and the impact of the offence on her family. These errors led the court to conclude that the sentence was manifestly inadequate and that the sentencing process had not appropriately balanced the need for punishment and deterrence with the personal circumstances of the offender.

The appeal court quashed the original sentence and ordered a re-sentencing hearing. The court emphasised the need for a sentence that appropriately reflected the seriousness of the offence and the need for general and specific deterrence. The court also highlighted the importance of accurately assessing the quantity of drugs imported and the role of the offender in the importation process. The appeal court's decision underscores the importance of a thorough and accurate assessment of the facts and circumstances of an offence in the sentencing process.

Orders