AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
8
Court of Criminal Appeal 22 September 2008

Huynh v R

[2008] NSWCCA 216

Also reported as (2008) 188 A Crim R 287
DrugsFraud & dishonesty
CRIMINAL LAW SENTENCING SUPPLY PROHIBITED DRUG SPECIAL CIRCUMSTANCES SENTENCES NOT MANIFESTLY EXCESSIVE

Citation: Huynh v R [2008] NSWCCA 216
Court: NSW Court of Criminal Appeal
Date: 22 September 2008
Judge(s): Allsop P, Johnson J, Price J

Background

The appellant pleaded guilty in the District Court to one count of supplying methylamphetamine and nine related summary offences of dealing with property reasonably suspected of being proceeds of crime. Police executing a search warrant at his home unit found approximately 29.42 grams of methylamphetamine with a street value estimated between $11,768 and $14,710. The appellant had not been in formal employment for five to six years, yet had purchased a $300,000 Mercedes sedan and a $79,000 Lexus motor vehicle.

The proceeds of crime offences related to the deposit of funds totalling approximately $3.5 million into bank accounts held in his father's name across various institutions between April and August 2006. The appellant was arrested in November 2006 and had remained in continuous custody since that date.

Judge Solomon in the District Court sentenced the appellant to a total effective term of four years' imprisonment with a non-parole period of three years and three months. The appellant sought leave to appeal against the sentences as manifestly excessive and raised questions about special circumstances and the operation of sentencing legislation governing related summary offences.

  • Whether the sentences imposed were manifestly excessive
  • Whether special circumstances existed warranting an adjustment to the ratio between the non-parole period and the balance of term
  • How the limitation on consecutive sentences for Local Court (or equivalent) proceedings under s 58 of the Crimes (Sentencing Procedure) Act 1999 applied to the related summary offences sentenced by the District Court

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error in the sentences imposed by Judge Solomon. The sentences were not manifestly excessive given the nature and volume of the offending, including the large quantity of high-purity methylamphetamine and the substantial sums dealt with as suspected proceeds of crime.

On the question of special circumstances, the Court found the sentencing judge had adequately considered the relevant factors. No error in that assessment was established.

The Court noted a more complex issue had been debated below concerning the proper construction of s 58 of the Crimes (Sentencing Procedure) Act 1999, which limits the accumulation of sentences imposed by Local Courts. Because the judge had not addressed this provision in the sentencing remarks, and because the Court had not received submissions on its proper construction, it declined to resolve the question. The Court observed only that the concurrent sentences ultimately imposed on the summary offences were, in any event, extraordinarily favourable to the appellant. No Crown appeal had been brought on that issue, so the Court declined to comment further.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that sentences for drug supply and related proceeds of crime offences were not manifestly excessive where the drug quantity was substantial, purity was high, and the surrounding financial conduct involved millions of dollars reasonably suspected to be crime proceeds.
  • Under s 166 of the Criminal Procedure Act 1986, a District Court judge sentencing for related summary offences exercises the sentencing functions of a Local Court, making the limitations in s 58 of the Crimes (Sentencing Procedure) Act 1999 potentially relevant to those summary counts.
  • No definitive construction of s 58 was offered by the Court, as the issue had not been argued on appeal and the sentencing judge had not addressed it below; the Court left that question open.
  • Concurrent sentences imposed on the nine proceeds of crime counts, running partially cumulative upon the principal drug supply sentence, produced a total effective term the Court described as already extraordinarily favourable to the appellant.
  • In dismissing the appeal, the Court applied the principle from Maxwell v The Queen (1996) 184 CLR 501 that a defendant dealt with for summary offences alongside an indictable matter is taken to have admitted the essential elements of those offences as if by guilty plea.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29
- Crimes Act 1900 (NSW), ss 193A, 193C, 193G, Division 1A Part 4
- Criminal Procedure Act 1986 (NSW), ss 166, 168
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 58
- Criminal Appeal Act 1912 (NSW)
- Customs Act 1901 (Cth)
- Road Transport (Safety and Traffic Management) Act 1999 (NSW)

Cases
- Maxwell v The Queen (1996) 184 CLR 501
- R v Ibrahim [2005] NSWCCA 43
- R v Nightingale [2005] NSWCCA 147
- R v Vera [2008] NSWCCA 33
- R v Simpson (2001) 53 NSWLR 704
- R v Cramp [2004] NSWCCA 264
- R v Fidow [2004] NSWCCA 172
- R v MMK (2006) 164 A Crim R 481
- R v McDonald (NSW Court of Criminal Appeal, 12 October 1998)
- R v Morgan (1993) 70 A Crim R 368
- R v George (2004) 149 A Crim R 38
- R v McNaughton (2006) 66 NSWLR 566
- R v MA (2004) 145 A Crim R 434
- R v Thompson (2005) 156 A Crim R 467
- R v Clayton (1997) 42 NSWLR 268