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Court of Criminal Appeal 8 August 2014

Huynh v R

[2014] NSWCCA 147

Drugs
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE MULDROCK ERROR STANDARD NON PAROLE PERIOD

Citation: Huynh v R [2014] NSWCCA 147
Court: NSW Court of Criminal Appeal
Date: 8 August 2014
Judges: Hoeben CJ at CL, Beech-Jones J, Hamill J (judgment delivered by Hamill J)

Background

The appellant was convicted after a judge-alone trial in the District Court of supplying a commercial quantity of heroin (approximately 700 grams, roughly 75% pure). She was sentenced in March 2008 to 13 years imprisonment with a non-parole period of 10 years, commencing 27 November 2007. The offence carried a maximum penalty of 20 years and a standard non-parole period of 10 years.

A first appeal against both conviction and sentence was dismissed by the Court of Criminal Appeal in 2009. Following the High Court's decision in Muldrock v The Queen [2011] HCA 39, which fundamentally changed the approach to standard non-parole periods, the appellant applied under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into her sentence. That application succeeded, and a judge of the Supreme Court referred the matter to the Court of Criminal Appeal as an appeal.

The appellant's role in the offending was as a supplier of the heroin. She sourced and paid for the drug in Melbourne and arranged for a co-offender to transport it to Sydney. The sentencing judge found she had the capacity to obtain heroin from multiple sources and operated at a level above the courier in the drug supply chain.

  • Whether the original sentence and the 2009 appeal were infected by "Muldrock error," namely giving the standard non-parole period determinative rather than merely indicative significance
  • Whether the Court could or should entertain a parity ground of appeal that had been raised (and rejected) in the 2009 appeal, in circumstances where the referral under s 79 was made on the specific Muldrock ground
  • Whether, on re-sentencing, parity principles required a less severe sentence having regard to the sentences imposed on co-offenders
  • Whether special circumstances justified adjusting the ratio between the non-parole period and the total sentence

Decision

Both the Crown and the appellant accepted that the original sentence and the 2009 appeal were infected by Muldrock error. The Court agreed. The sentencing judge had treated the standard non-parole period as a determinative benchmark rather than as one of a range of factors to be weighed in a balanced sentencing exercise, contrary to what the High Court subsequently held in Muldrock.

The Court declined to resolve whether a s 79 referral allows an appellant to raise grounds beyond those on which the referral was granted. It was unnecessary to do so because, in any event, parity principles had to be considered as part of the re-sentencing exercise itself. Once Muldrock error was established and re-sentencing was required, the court was obliged to determine whether a different, less severe sentence was warranted under s 6(3) of the Criminal Appeal Act 1912 (NSW), and that assessment necessarily involved comparing the appellant's sentence with those of co-offenders.

The co-offenders, charged with different (though related) offences, had received less severe total sentences. Hamill J concluded that the appellant's sentence should be significantly less severe than those total sentences and roughly comparable to the sentences imposed on the co-offenders for the shared count. The Court also found special circumstances justifying a longer than usual parole period, including the appellant's first-time imprisonment, early family separation, and the rehabilitation steps she had taken since being incarcerated. This evidence had not been available to the original sentencing judge.

Applying these considerations, the Court was satisfied that a less severe sentence was warranted and re-sentenced the appellant to 12 years with a non-parole period of 8 years.

Orders Made

  • Appeal allowed
  • Sentence imposed in the District Court quashed
  • Appellant re-sentenced to a non-parole period of 8 years commencing 27 November 2007 and expiring 26 November 2015, with a balance of term of 4 years commencing 27 November 2015 and expiring 26 November 2019
  • Appellant eligible for release on parole at the expiration of the non-parole period

Key Takeaways

  • Muldrock v The Queen error arises where a sentencing court treats the standard non-parole period as a determinative or presumptive starting point rather than as a legislative guidepost to be weighed alongside all other relevant factors.
  • A successful referral under s 79 of the Crimes (Appeal and Review) Act 2001 (NSW) on a Muldrock ground triggers a full re-sentencing exercise under s 6(3) of the Criminal Appeal Act 1912 (NSW), within which parity considerations arise as a matter of course, even if parity is not itself a separately stated ground of appeal.
  • The Court of Criminal Appeal expressly declined to decide whether a s 79 referral opens the door to additional grounds of appeal beyond those on which the referral was granted, noting that a differently constituted bench had the question reserved in another matter.
  • Parity principles apply even where co-offenders were charged with different offences. The court's task is to compare the effective sentences in a principled way, accounting for the structure of any cumulative or partially cumulative sentences imposed on co-offenders.
  • Evidence of rehabilitation and personal circumstances that post-dates the original sentencing hearing is a legitimate basis for a different finding on special circumstances, justifying an adjusted ratio between the non-parole period and the total sentence on re-sentencing.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44(1)
- Drug Misuse and Trafficking Act 1985 (NSW), Schedule 1

Cases
- Muldrock v The Queen [2011] HCA 39
- Huynh v R [2009] NSWCCA 65
- Application by Huynh under s 78 Crimes (Appeal and Review) Act 2001 (Latham J, 19 December 2013, unrep)
- Carlton v R [2014] NSWCCA 14
- Rajendran v R [2014] NSWCCA 113
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- Postiglione v R [1997] HCA 26; 189 CLR 295
- Green and Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Munda v Western Australia [2013] HCA 38; 249 CLR 600
- Pham and Tran v The Queen [2008] NSWCCA 194
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v Douar [2005] NSWCCA 455; 159 A Crim R 154
- R v Day (1998) 100 A Crim R 275
- R v Edwards (1996) 90 A Crim R 510
- R v Toomalati [2000] NSWCCA 105