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Court of Criminal Appeal 8 February 2008

R v HUYNH

[2008] NSWCCA 16

Drugs
CRIMINAL LAW AND PROCEDURE SENTENCE ERRONEOUS FINDING OF DURESS INADEQUACY OF SENTENCE ASSESSMENT BELOW DETECTABLE PATTERN CROWN APPEAL ALLOWED

Citation: R v Huynh [2008] NSWCCA 16
Court: Court of Criminal Appeal, New South Wales
Date: 8 February 2008
Judge(s): McClellan CJ at CL, Grove J, Fullerton J

Background

The respondent, an Australian citizen of Vietnamese origin, pleaded guilty in the Local Court to importing a marketable quantity of heroin. On arrival at Sydney Airport from Ho Chi Minh City in March 2007, she was found to have internally secreted four packages containing 108 grams of pure heroin, with an estimated street value of up to $270,000.

The respondent explained that she had accumulated significant gambling debts and agreed to courier the drugs in exchange for approximately $20,000 to reduce those debts. She had no prior convictions, was a mother of two children, and entered her guilty plea at the earliest opportunity.

In the District Court, Woods DCJ sentenced her to four years' imprisonment with a two-year non-parole period. The Crown appealed, arguing the sentence was manifestly inadequate as a result of errors of both fact and law.

  • Whether the sentencing judge erred in finding that the respondent acted under duress, and whether that finding could properly mitigate the sentence
  • Whether the sentencing judge erroneously characterised the respondent's gambling problem as "pathological" in the absence of psychiatric or psychological evidence
  • Whether the overall sentence was manifestly inadequate when measured against comparable cases involving internal drug couriers
  • What weight, if any, a gambling addiction that motivates drug importation should be given in sentencing

Decision

The Court of Criminal Appeal allowed the Crown appeal and quashed the original sentence. Grove J, with whom McClellan CJ at CL and Fullerton J agreed, identified two central errors in the District Court's sentencing remarks.

First, the finding of duress was unsupported by the evidence. The respondent had voluntarily agreed to carry the drugs in order to earn money to repay gambling debts. There was nothing in the material to suggest she was compelled or threatened. Accordingly, the sentencing judge's reliance on duress as a substantial mitigating factor was an error.

Second, while the Court accepted it was open to find that the respondent had some form of gambling addiction relevant to her offending, that finding did not warrant significant leniency. The Court adopted the reasoning from Le v R [2006] NSWCCA 136, which held that an offender's vulnerability arising from a gambling addiction does not generally justify leniency: extending such leniency would undermine the deterrent value of sentences for drug importation. The Court also noted that the reference to "trickery" in the judge's remarks was unidentifiable on the evidence.

Taking into account double jeopardy (the established principle that a respondent to a successful Crown appeal faces that sentence twice), the respondent's good response to custody, and the early guilty plea, the Court resentenced the respondent to six years' imprisonment with a four-year non-parole period.

Orders Made

  • Crown appeal allowed
  • Sentence imposed in the District Court quashed
  • Respondent resentenced to six years' imprisonment commencing 9 March 2007, with a non-parole period of four years commencing 9 March 2007 and expiring 8 March 2011
  • Legal representatives directed to explain to the respondent the purpose and consequences of the non-parole period, in compliance with section 16F of the Crimes Act 1914 (Cth)

Key Takeaways

  • A finding of duress requires evidence of compulsion or threat. Where an offender freely agrees to courier drugs in exchange for financial reward, the sentencing court cannot properly characterise that conduct as duress, even partial duress, to reduce the sentence.
  • Gambling addiction, even where it contributes to an offender's involvement in drug importation, does not ordinarily warrant enhanced leniency. The Court of Criminal Appeal confirmed that deterrence considerations are significantly undermined if vulnerability arising from addiction routinely produces reduced sentences for serious drug offences.
  • The Court declined to treat broad social criticism of gambling availability as a basis for leniency, noting it was a circumstance common to many importation cases.
  • In resentencing following a successful Crown appeal, the principle of double jeopardy requires the appellate court to moderate the sentence it would otherwise impose, reflecting the burden on the offender of facing sentence a second time.
  • Imprecision and inconsistency in an offender's account of personal circumstances, while not necessarily determinative, can affect the weight a sentencing court assigns to claimed mitigating factors.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 16F

Cases
- 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