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Court of Criminal Appeal 13 March 2009

Huynh v R

[2009] NSWCCA 65

Drugs
CRIMINAL LAW AND PROCEDURE SUPPLY OF PROHIBITED DRUG TRIAL BY JUDGE WITHOUT JURY SENTENCE STANDARD NON PAROLE PERIOD APPLIED

Citation: Huynh v R [2009] NSWCCA 65
Court: NSW Court of Criminal Appeal
Date: 13 March 2009
Judges: Grove J, Blanch J, Kirby J

Background

The appellant was convicted by Ainslie-Wallace DCJ in the District Court, sitting without a jury, of supplying a commercial quantity of heroin. The supply occurred in Melbourne, with prosecution brought in New South Wales under the relevant provisions of the Crimes Act 1900. Upon conviction, the appellant was sentenced to a non-parole period of 10 years with a balance term of 3 years.

The Crown's case rested entirely on circumstantial evidence. Police had intercepted telephone calls between the appellant and an associate known as Sang, made over several days in May 2005. When Sang arrived in Sydney by overnight bus on 15 May 2005, police found him in possession of approximately 700 grams of heroin and around $17,200 in cash. Sang was subsequently tried and convicted separately for offences including the supply connected to this same drug.

The appellant appealed both her conviction and her sentence. On the conviction appeal, she argued that her Honour failed to properly consider innocent explanations for the evidence. On sentence, she challenged the judge's use of prior conduct to assess seriousness and the application of the standard non-parole period.

  • Whether the trial judge properly applied the test for circumstantial cases, specifically whether an alternative inference consistent with innocence remained reasonably open on the evidence
  • Whether her Honour erred in assessing the credibility of the appellant and in using that assessment in the fact-finding process
  • Whether the sentencing judge breached the principle in The Queen v De Simoni by taking into account uncharged conduct to elevate the seriousness of the offence
  • Whether the standard non-parole period was correctly applied and whether any basis for reduction had been established

Decision

The Court of Criminal Appeal dismissed all grounds of appeal against conviction. Grove J found that the trial judge had explicitly directed herself to the correct legal test: that in a circumstantial case, the inference of guilt must be not merely reasonable but the only reasonable conclusion available on the evidence. Her Honour also correctly identified that rejecting the appellant's evidence did not discharge the Crown's burden of proof, and proceeded to assess the Crown case independently.

The appellant's explanations, including that the telephone conversations concerned a loan, food, and milk, and that the cash Sang carried represented money she had lent him, were considered and rejected by the trial judge. The Court of Criminal Appeal found no error in that approach. The credibility assessment was a legitimate part of the fact-finder's role, and the findings were open on the evidence.

On sentence, the Court rejected the argument that her Honour had breached the principle in De Simoni by finding the offence was not an isolated event. Grove J held that her Honour's remarks about the appellant's familiarity with sourcing heroin were directed at assessing the objective seriousness of the index offence and whether it represented an isolated lapse of judgment. No uncharged offence had been used to increase the punishment, and no error in the sentencing exercise was demonstrated.

The application for leave to appeal against sentence was granted, but the sentence appeal was dismissed. The Court found no basis had been established to reduce the sentence from the standard non-parole period.

Orders Made

  • Appeal against conviction dismissed
  • Application for leave to appeal against sentence granted, but that appeal also dismissed

Key Takeaways

  • In a judge-alone trial based on circumstantial evidence, the trial judge is required to be satisfied that guilt is not merely a reasonable inference but the only reasonable conclusion available on the evidence; the Court of Criminal Appeal confirmed that Ainslie-Wallace DCJ applied this test correctly.
  • A finding that the accused lacked credibility does not relieve the Crown of its burden of proof; the sentencing court must separately assess whether the Crown case establishes guilt beyond reasonable doubt even after rejecting defence evidence.
  • Under the principle in De Simoni, a sentencing judge may not use uncharged circumstances of aggravation to render an offender liable to greater punishment; however, the Court confirmed that finding an offence was not an isolated event, based on recorded communications, falls within the legitimate scope of assessing objective seriousness.
  • No error was established in the application of the standard non-parole period, and the appellant failed to demonstrate any basis for a reduction from that period.
  • Sufficient evidence existed, drawn entirely from intercepted telephone conversations and the circumstances of an associate's arrest, to support a conviction for commercial drug supply without any direct evidence of the supply itself.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including Part 1A (extra-territorial jurisdiction)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW), s 184 (formal admissions)

Cases:
- R v Way (2004) 60 NSWLR 168
- The Queen v De Simoni (1981) 147 CLR 383