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Court of Criminal Appeal 25 June 2015

Huynh v R

[2015] NSWCCA 167

Drugs
CRIMINAL LAW SENTENCING IMPORTING BORDER CONTROLLED DRUGS MOTHER OF THREE CHILDREN UNDER 18 WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Huynh v R [2015] NSWCCA 167
Court: Court of Criminal Appeal, NSW
Date: 25 June 2015
Judge(s): Simpson J, Davies J, Hamill J

Background

The appellant was a Vietnamese-born woman who, on 20 June 2013, arrived at Sydney International Airport carrying heroin concealed internally and pseudoephedrine hidden in food packaging. She had travelled to Vietnam after her mother fell ill and was recruited as a courier in exchange for AUD $3,000 upfront and a promise of AUD $7,000 on delivery. The sentencing court accepted she did not know the precise nature or quantity of the drugs, but found she knowingly imported an illegal substance for financial gain.

The appellant had a directly relevant criminal history. In 2005, she was arrested at Sydney Airport for importing methylamphetamine concealed in towels. She was convicted after a jury trial and, following a successful Crown appeal, sentenced to six years imprisonment with a three-year non-parole period. The current offence was committed just five days after that earlier sentence expired.

In the District Court, Judge Lerve sentenced the appellant to seven years imprisonment, commencing 20 June 2013, with a non-parole period of four years. The appellant, who was unrepresented on appeal, filed a notice of appeal citing her ill mother overseas, three children aged 9, 16 and 18 in Australia, a recent diabetes diagnosis, and the need for an interpreter.

  • Whether the overall sentence of seven years imprisonment was manifestly excessive
  • Whether insufficient weight was given to the hardship the sentence imposed on the appellant's children and parents
  • Whether insufficient weight was given to the appellant's ill health, including a claimed diabetes diagnosis made while in custody
  • Whether fresh or new evidence (including a psychological report and pathology results) should be received on appeal

Decision

The Court of Criminal Appeal characterised the grounds raised in the appellant's informal notice of appeal as challenging manifest excessiveness, hardship to family, and ill health. Davies J (with Simpson and Hamill JJ agreeing) addressed each in turn and found no error warranted interference.

On manifest excessiveness, the Court noted the appellant had not sought to challenge the head sentence itself, only the non-parole period. In any event, the Court found the sentence was not excessive given the quantity of drugs, the appellant's role as a knowing courier for financial gain, and her prior conviction for a substantially similar offence committed at the same location. The prior sentence had expired only days before the current offending. The Sentencing Judge had explicitly weighed the appellant's subjective circumstances, including separation from her children, her mother's illness, and her limited English, but concluded they did not reach the level of truly exceptional circumstances warranting greater leniency.

On hardship to family, the Court acknowledged the difficulty the sentence would cause, particularly regarding the appellant's children and her ill mother in Vietnam. However, it noted the sentencing judge had taken these matters into account as part of the overall subjective mix. The Court also noted that the children's father had been denied a visa to Australia as a consequence of the appellant's criminality. That fact was not a mitigating consideration attributable to the sentencing process itself.

On ill health, the appellant sought to tender a psychological report and pathology results as fresh evidence. The Court declined to receive the pathology report, finding no medical evidence explained its significance, and no evidence established that any required treatment could not be provided in custody. The psychological report, dated the same day as the sentencing hearing, was not explained as having been unavailable at that time, and its contents added nothing material that the Sentencing Judge had not already acknowledged from the earlier proceedings. The diabetes claim was also found to be factually incorrect: records showed the appellant had been taking diabetes medication before entering custody, and the relevant documents had been available at sentencing.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that family hardship, including separation from dependent children, is a relevant sentencing consideration but does not automatically constitute exceptional circumstances warranting a reduction in sentence.
  • A prior conviction for a substantially similar offence, particularly where the current offending occurred shortly after completing that earlier sentence, significantly reduces any claim that the sentence is manifestly excessive and heightens the relevance of specific deterrence.
  • Fresh evidence will not be received on appeal merely because it post-dates sentencing; the Court requires an explanation for why the evidence was unavailable at the time, and will not act on medical material that is unaccompanied by evidence explaining its significance or establishing that treatment cannot be provided in custody.
  • Where an unrepresented appellant's notice of appeal is informally expressed, the Court will characterise the grounds by reference to their substance rather than their form, provided the substance gives rise to identifiable legal issues.
  • No error was established in the sentencing judge's approach to remorse, rehabilitation prospects, or the weight given to the appellant's mental health history, where the judge had regard to those matters from prior proceedings in the absence of fresh evidence at sentencing.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 307.2(1)
- Crimes Act 1914 (Cth), s 16BA
- Customs Act 1901 (Cth), s 233B

Cases:
- R v Nguyen [2006] NSWDC1; (2006) 3 DCLR (NSW) 216
- R v Nguyen [2006] NSWCCA 369; (2006) 205 FLR 79
- Colomer v R [2014] NSWCCA 51
- Gallagher v The Queen (1986) 160 CLR 392
- R v Fordham (1997) 98 A Crim R 359
- R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23
- R v Zerafa [2013] NSWCCA 222; (2013) 235 A Crim R 265