AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 19 October 2018

Huynh v R

[2018] NSWCCA 237

DrugsFirearms & weapons
SENTENCE PAROLE PERIOD

Citation: Huynh v R [2018] NSWCCA 237
Court: NSW Court of Criminal Appeal
Date: 19 October 2018
Judges: Hoeben CJ at CL, Fullerton J, Davies J

Background

The applicant pleaded guilty in the District Court to two counts: conspiracy to supply a commercial quantity of pseudoephedrine (contrary to ss 25(2) and 26 of the Drug Misuse and Trafficking Act 1985 (NSW)), and possession of a prohibited pistol (contrary to s 7(1) of the Firearms Act 1996 (NSW)). The sentencing judge imposed an aggregate sentence of 8 years imprisonment with a non-parole period of 5 years, commencing 30 June 2015. Two further offences involving a separate drug conspiracy and an unregistered firearm were taken into account on a Form 1.

The applicant sought leave to appeal that aggregate sentence on five grounds. The notice of appeal was filed nearly two years after sentence was imposed, requiring an extension of time. Leave was not opposed by the Crown once sentencing errors were conceded.

  • Whether the sentencing judge erred by applying a standard non-parole period to the conspiracy count under s 26 of the Drug Misuse and Trafficking Act, when no such period applies to a conspiracy offence (only to the substantive supply offence)
  • Whether the sentencing judge misapplied the Muldrock principles in using the standard non-parole period for the firearms count
  • Whether the sentencing judge erred in finding the prohibited pistol was "loaded," and in treating that finding as a basis for assessing mid-range objective seriousness
  • Whether the applicant had a justifiable sense of grievance arising from a marked disparity between her sentence and those of co-offenders
  • Whether the aggregate sentence was manifestly excessive

Decision

The Crown conceded two errors. First, the sentencing judge wrongly applied a standard non-parole period to the conspiracy count under s 26 of the Drug Misuse and Trafficking Act. A standard non-parole period attaches to the substantive supply offence under s 25(2), but not to a conspiracy to commit that offence. Second, there was no evidence the pistol was loaded: the agreed facts recorded only that ammunition suitable for the pistol was found nearby, yet the sentencing judge had partly based his finding of mid-range objective seriousness on a finding that the gun was loaded.

Those conceded errors triggered the Court of Criminal Appeal's obligation to re-sentence afresh, applying the principles in Kentwell v The Queen (2014) 252 CLR 601. Because the Court was conducting a full re-sentencing exercise, it was unnecessary to determine whether the remaining grounds (Muldrock misapplication, parity, and manifest excess) were themselves made out.

On re-sentence, the Court considered parity against the sentences imposed on three co-offenders involved in the same conspiracy. The Crown submitted, and the Court accepted, that differences in co-offender sentences were adequately explained by the markedly different roles each participant played. The applicant's role was significant, and her possession of a prohibited pistol with proximate ammunition was treated as a serious aggravating feature warranting both punishment and general deterrence.

On the question of family hardship, Fullerton J found the sentencing judge had incorrectly treated the applicant herself as suffering hardship beyond the norm, rather than focusing on the effect of imprisonment on her children and partner. The evidence of impact on the applicant's family was relevant as part of the general subjective case, but the Court was not persuaded it rose to the exceptional level required to warrant particular leniency. After weighing all subjective factors, the Court concluded no lesser aggregate sentence was warranted, and dismissed the appeal.

Orders Made

  • Time for filing the notice of appeal extended to 29 January 2018
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A standard non-parole period under the Drug Misuse and Trafficking Act 1985 (NSW) applies to the substantive offence of supplying a commercial quantity of a prohibited drug under s 25(2), but does not apply to a conspiracy to commit that offence under s 26: R v DW [2012] NSWCCA 66 confirms this distinction.
  • Where sentencing error is conceded, the Court of Criminal Appeal must re-sentence afresh under the Kentwell principle, assessing the full range of relevant factors rather than merely correcting the discrete error.
  • Factual findings at sentence must be grounded in the agreed facts or evidence: in this case, a finding that the pistol was "loaded" could not be sustained where the agreed facts recorded only that compatible ammunition was stored separately nearby.
  • In dismissing the appeal despite the conceded errors, the Court of Criminal Appeal confirmed that error in the sentencing process does not automatically produce a lesser sentence if the overall offending, assessed afresh, warrants the same penalty.
  • On family hardship as a mitigating factor, the Court clarified that the relevant inquiry focuses on the exceptional impact of imprisonment on the offender's dependants, not on hardship experienced by the offender personally; impact on family forms part of the general subjective case, but warrants particular leniency only where it demonstrably exceeds what many families endure when a parent or primary carer is imprisoned.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 26
- Firearms Act 1996 (NSW), ss 7(1), 36(1)

Cases
- Carter v R [2018] NSWCCA 138
- Elshani v R [2015] NSWCCA 254
- Gordon v R [2018] NSWCCA 54
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Kremisis v R [2016] NSWCCA 257
- Lloyd v R [2017] NSWCCA 303
- Matthews v R; New v R [2018] NSWCCA 186
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Nguyen v R [2017] NSWCCA 39
- R v DW [2012] NSWCCA 66
- R v Hinton [2002] NSWCCA 405
- R v Shortland [2018] NSWCCA 34
- R v Togias [2001] NSWCCA 522
- R v Zerafa [2013] NSWCCA 222