R v Van Huynh

[2003] QCA 371

SUPREME COURT OF QUEENSLAND

CITATION:	R v Van Huynh [2003] QCA 371
PARTIES:	R v VAN HUYNH, Hieu (applicant)
FILE NO/S:	CA No 140 of 2003 SC No 174 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING  COURT:	Supreme Court at Brisbane
DELIVERED EX	28 August 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	28 August 2003
JUDGES:	Williams and Jerrard JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PARITY – CO-OFFENDERS – DISCRIMINATION BETWEEN CO-OFFENDERS – where applicant convicted after trial of possession of the dangerous drug heroin in a quantity exceeding two grams – where applicant sentenced to 12 years imprisonment – where applicant’s co-offender pleaded guilty to same offence and sentenced to eight years imprisonment – where applicant contends the disparity in sentences gives him a justifiable sense of grievance – where applicant involved in offence at much greater level than co-offender – whether disparity reflects the overall level of criminality in the behaviour of each offender
R v Nagy [2003] QCA 175; CA No 24 of 2003, 2 May 2003, referred to R v Truong [1997] QCA 49; CA No 528 of 1996, 27 February 1997, discussed
COUNSEL:	K M McGinness for the applicant P F Rutledge for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent

1. JERRARD JA: On 9th April 2003 Hieu Van Huynh was found guilty by a jury of the offence of having had possession of the dangerous drug heroin, in a quantity which exceeded two grams. Such possession being on the 13th day of June 2000 at Coolangatta. He was sentenced that same day to 12 years imprisonment. A co-offender, Quynh Dinh Trinh, who had pleaded guilty to that same offence on 1st April 2003, was sentenced on 9th April 2003 to eight years imprisonment and the learned Judge recommended that Mr Trinh be considered for parole after serving three years of that sentence.

2. The Judge explained that that recommendation was a reflection of Mr Trinh's plea of guilty. Mr Huynh has appealed against his sentence, arguing that it is manifestly excessive by reason of the disparity between his 12 year sentence and the eight year sentence with a recommendation for parole imposed upon Mr Trinh and that that disparity gives him a justifiable sense of grievance, warranting appellant intervention by this Court.

3. the decisions in Lowe v. The Queen at 154 CLR 606,
Postiglione v. The Queen at 189 CLR 295 and I refer to
remarks of Justice Williams in The Queen v. Nagy [2003] QCA

His counsel has helpfully referred the Court to remarks in that Mr Trinh was driving a car, to Queensland from Sydney, which was…