R v Huynh

Case [2005] NSWCCA 220


NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      R v Huynh [2005]  NSWCCA 220

FILE NUMBER(S):
2005/410

HEARING DATE(S):               30 May 2005

JUDGMENT DATE: 17/06/2005

PARTIES:
Crown - Respondent
Applicant - Quang Thanh Huynh

JUDGMENT OF:       Simpson J Barr J Latham J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          04/21/3060

LOWER COURT JUDICIAL OFFICER:     English DCJ

COUNSEL:
V Lydiard - Crown
H Dhanji - Applicant

SOLICITORS:
S Kavanagh - Crown
SE O'Connor - Applicant

CATCHWORDS:
application for leave to appeal against sentence
aggravated break, enter and commit a serious indictable offence
plea of guilty
standard non-parole period
standard non-parole period applicable to sentencing after trial
departure from standard non-parole period
finding of special circumstances
failure to give effect to finding of special circumstances
discount for plea of guilty
whether offence middle of the range of gravity of offences of its kind
element of the offences wrongly taken into account as a circumstance of aggravation
whether sentence manifestly excessive

LEGISLATION CITED:
Crimes Act 1900, s4, s112(2)
Crimes (Sentencing Procedure) Act 1999, s21A, s44, Part 4, Division 1A, Subs54A(2), S54B
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002
Probation and Parole (Serious Offences) Amendment Act 1987, s5, s20A
Sentencing Act 1989, s5

DECISION:
(i)  leave to appeal granted
(ii)  appeal allowed, sentence imposed in the District Court quashed
(iii)  in lieu thereof the applicant sentenced to a non-parole period of three years and three months commencing on 2 April 2004 and expiring on 1 July 2007, and a balance of term of two years and one month, expiring on 1 August 2009.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/410

SIMPSON J
BARR J
LATHAM J

Friday 17 June 2005

REGINA  v  Quang Thanh HUYNH

Judgment

  1. SIMPSON J: The applicant seeks leave to appeal against a sentence imposed upon him in the District Court at Campbelltown by Judge English on 27 August 2004 following his plea of guilty to an offence of aggravated break, enter and commit a serious indictable offence, a charge brought pursuant to s112(2) of the Crimes Act 1900. That sub-section provides a maximum penalty of imprisonment for 20 years for the offence.  The circumstance of aggravation was that the offence was committed in company.

  2. The offence having been committed on 22 December 2003, the applicant came for sentence under the sentencing regime provided for by the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”), as amended by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, (“the Standard Minimum Sentencing Act”) and, of particular relevance, in accordance with Part 4, Division 1A of the Sentencing Procedure Act. Pursuant to that Division, a standard non-parole period of five years is fixed for offences against s112(2). Judge English sentenced the applicant to imprisonment with a non-parole period of five years and a balance of term of three years, commencing on 2 April 2004.

    facts

  3. The relevant facts are in very short compass.  During the morning of 22 December 2003 the…

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AGLC
R v Huynh [2005] NSWCCA 220
Case
[2005] NSWCCA 220
Decision Date

CaseChat Overview and Summary

In the matter of R v Huynh, the applicant was convicted of aggravated break, enter and commit a serious indictable offence and was sentenced by Judge English to imprisonment with a non-parole period of five years and a balance of term of three years. The applicant has brought an application for leave to appeal against the sentence. The applicant pleaded guilty to the offence and, in accordance with Part 4, Division 1A of the Sentencing Procedure Act, a standard non-parole period of five years was fixed for the offence. The court was required to decide whether the sentence was manifestly excessive, whether the standard non-parole period applicable to sentencing after trial was the correct one, and whether the court had failed to give effect to a finding of special circumstances.

The court found that the sentence was not manifestly excessive, despite the applicant's argument to the contrary. The court noted that the applicant had a history of drug use, which began at a young age and continued up until the time of the offence. The court also found that the standard non-parole period applicable to sentencing after trial was the correct one, despite the applicant's argument that the standard non-parole period applicable to sentencing after a guilty plea should have been applied. The court found that the offence was in the middle of the range of gravity of offences of its kind and that the element of the offences wrongly taken into account as a circumstance of aggravation did not warrant a departure from the standard non-parole period. The court also found that the discount for plea of guilty had been properly taken into account. The court found that the sentence was not manifestly excessive, taking into account all of the circumstances of the case. The court found that the applicant's subjective circumstances, including his history of drug use and family background, did not warrant a departure from the standard non-parole period.

The final orders of the court were that the application for leave to appeal against sentence be dismissed and that the sentence imposed by Judge English be affirmed.

Orders

Orders of the court

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Background

Background to the litigation

The offence having been committed on 22 December 2003, the applicant came for sentence under the sentencing regime provided for by the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”), as amended by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, (“the Standard Minimum Sentencing Act”) and, of particular relevance, in accordance with Part 4, Division 1A of the Sentencing Procedure Act. Pursuant to that Division, a standard non-parole period of five years is fixed for offences against s112(2). Judge English sentenced the applicant to imprisonment with a non-parole period of five years and a balance of term of three years, commencing on 2 April 2004.facts The relevant facts are in very short compass. During the morning of 22 December 2003 the applicant, in company with another male, smashed the glass door of domestic premises in Punchbowl and entered the house. There either or both of the men collected a great deal of personal property, including jewellery, watches and precious stones and cosmetics. They placed some of these items in a backpack which also belonged to the occupants of the house and others in the applicant’s pockets. The two men were actually in the premises when the son of the occupants (who happened to be an off-duty police officer) arrived, in company with a friend. He attempted to confine the two men by use of the security door but they forced it open and in the process broke the door and did considerable damage. They ran in different directions. The police officer chased the applicant, who was carrying the backpack. He caught the applicant as he attempted to climb over the front gate or fence and a struggle ensued during which the applicant threw a number of punches at him, causing him to fall to the ground. The police officer’s friend came to his assistance, as did a nearby neighbour, and the applicant was restrained. Police attended and the applicant was arrested. As a consequence, all of the property which had been stolen was recovered. The property was valued at between $90,000 and $100,000.subjective circumstances Evidence of the applicant’s subjective circumstances was put before English DCJ by way of a pre-sentence report, the report of a clinical forensic psychologist, Mr W John Taylor, and the oral evidence of the applicant himself. From this the following emerged. The applicant was born on 25 April 1979 in Vietnam. He was, accordingly, 24 years of age at the time of the offence. He is the middle of five children in his family which migrated to Australia when he was a small child. Initially the family was close and stable. However, when the applicant was about 12 his mother was badly burned and was hospitalised for approximately a year. This appears to have disrupted the stability of the family. The applicant’s father spent most of his time at the hospital. The applicant became depressed and began to truant and to mix in unsuitable company. He began using drugs, commencing with marijuana at about the age of 14, progressing to smoking heroin at 17 and injecting the latter at 21. At about 24 he began using amphetamines and was using both amphetamines and heroin in the months leading up to the present offence.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

SIMPSON J

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Ratio Decidendi

Legal Principle Established

Established by: SIMPSON J

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