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Court of Criminal Appeal 15 July 2015

Huynh v R

[2015] NSWCCA 179

Assault & violenceTheft & property
CRIMINAL LAW APPEAL SENTENCING APPEAL SENTENCING MISAPPREHENSION OF FACTS BY TRIAL JUDGE

Citation: Huynh v R [2015] NSWCCA 179
Court: NSW Court of Criminal Appeal
Date: 15 July 2015
Judges: Hoeben CJ at CL, R A Hulme J, Campbell J (all agreeing)

Background

The appellant had pleaded guilty in the Local Court to aggravated break and enter whilst in company, contrary to s 113(2) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 14 years imprisonment. Two further offences arising from the same incident (assaulting and resisting police officers) were taken into account on a Form 1. The offending occurred when the appellant and an unidentified co-offender entered an occupied home, with the co-offender pinning the occupant to a sofa, holding a knife to his throat, and threatening to kill him while the appellant ransacked the bedrooms.

In the District Court, his Honour Colefax SC DCJ sentenced the appellant to a total term of 4 years and 10 months, comprising a non-parole period of 3 years and 8 months. The appellant sought leave to appeal on two grounds, each challenging specific factual findings the sentencing judge had relied upon to assess the objective gravity of the offence.

  • Whether the sentencing judge erred in finding, as an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW), that the victim suffered "substantial psychological fear," in the absence of evidence supporting that finding.
  • Whether the sentencing judge erred in treating the appellant as having acquiesced in violence against the victim on the basis that the appellant himself possessed a weapon (described as a baseball bat), where the evidence did not establish that the appellant held such a weapon.

Decision

On the first ground, the Court of Criminal Appeal accepted that there was no direct evidence the victim suffered substantial psychological fear as a discrete aggravating circumstance. The relevant statutory factor requires something beyond the fear inherent in the offence itself. The sentencing judge's reliance on this factor was therefore not supported by the evidence, and ground one was upheld.

On the second ground, the Court found that the sentencing judge had proceeded on the basis that the appellant was in possession of a baseball bat during the offence. However, the agreed facts did not establish this. The baseball bat mentioned in the evidence belonged to the co-offender, not to the appellant. This misapprehension of the factual basis constituted a House v The King error, meaning the appellate court was entitled to re-exercise the sentencing discretion afresh.

Because both grounds were established, the Court allowed the appeal and proceeded to resentence the appellant. The Court applied a 25 per cent discount for the utilitarian value of the early guilty plea and took into account the appellant's difficult personal history, including the murder of his father, chronic untreated depression, and long-term heroin addiction, set against his serious and persistent criminal record. The Court fixed a total term of 4 years imprisonment, with a non-parole period of 3 years, a reduction from the original sentence.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed in the District Court on 16 September 2014 quashed.
  • Appellant re-sentenced to imprisonment with a non-parole period of 3 years commencing 2 September 2013 and expiring 1 September 2016, with an additional term of 1 year commencing 2 September 2016 and expiring 1 September 2017.
  • Appellant eligible for release on parole on 1 September 2016.

Key Takeaways

  • A sentencing court applying the s 21A(2)(g) aggravating factor (substantial psychological harm) must have evidentiary support for that finding; the fear inherent in the offence itself is not sufficient to satisfy the statutory requirement.
  • Where a sentencing judge proceeds on a misapprehension of the agreed facts, such as misattributing possession of a weapon to the wrong offender, that constitutes an error of the kind described in House v The King [1936] HCA 40, entitling an appellate court to intervene and resentence.
  • Under the Form 1 procedure, taking additional offences into account justifies a heavier sentence on the principal offence but also allows the offender to be released with a clean slate in respect of those matters.
  • Judicial Commission sentencing statistics show the range of sentences actually imposed in past cases, not the correctness of that range or its direct applicability to any particular case, as confirmed by reference to Wong v The Queen and Hili v The Queen.
  • An early guilty plea continued to attract a 25 per cent utilitarian discount, and individual subjective circumstances, including personal trauma and addiction, remained relevant to the overall sentencing exercise even where the offender had a serious prior record.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 58, 113(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(g)
- Criminal Appeal Act 1912 (NSW)

Cases
- House v The King [1936] HCA 40; 55 CLR 499
- Wong v The Queen [2001] HCA 64; 207 CLR 584
- R v Youkhana [2004] NSWCCA 412
- Hili v The Queen [2010] HCA 45; 242 CLR 520
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601