AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 25 March 2022

Huynh v R

[2022] NSWCCA 45

Drugs
CRIMINAL LAW SENTENCE A PPEAL OFFENCES SENTENCE APPEAL

Citation: Huynh v R [2022] NSWCCA 45
Court: NSW Court of Criminal Appeal
Date: 25 March 2022
Judges: Davies J, Bellew J, Fagan J

Background

The applicant was convicted in the District Court of conspiring to import a border controlled precursor, namely pseudoephedrine, into Australia from Vietnam between January and June 2012. The conspiracy involved corrupt Customs officers, a baggage handler at Sydney International Airport, and several couriers, with the applicant playing a role in sourcing the drug and organising couriers. He was sentenced to 12 years' imprisonment with an 8-year non-parole period.

The applicant had previously appealed his conviction (dismissed), sought special leave to appeal to the High Court (refused), and pursued an inquiry into his conviction under the Crimes (Appeal and Review) Act 2001 (NSW) (also ultimately unsuccessful). He did not appeal his sentence at the time of his conviction appeal, and only sought leave to do so in October 2021, requiring an extension of time.

He raised two grounds on the sentence appeal: first, that the sentencing judge lacked sufficient evidence to find him actively involved in all four importations; and second, that the sentencing judge failed to account for the full period of his pre-sentence custody when calculating the commencement date of his sentence.

  • Whether the sentencing judge's findings that the applicant was actively involved in all four pseudoephedrine importations were supported by evidence beyond reasonable doubt
  • Whether the sentencing judge erred by failing to take into account the entirety of the applicant's pre-sentence custody periods when fixing the commencement date of the sentence

Decision

On the first ground, the Court of Criminal Appeal refused leave to appeal. The Court noted that the question of the applicant's involvement in the importations had already been addressed in the earlier conviction appeal. The evidence before the sentencing judge, including detailed factual findings about the applicant's travel to Vietnam, his role in sourcing pseudoephedrine, his meetings with co-conspirators during the planning phase, and his coordination of couriers, was sufficient to support the findings made.

On the second ground, the Court found that error was established. The sentencing judge had not correctly adjusted the sentence commencement date to account for the totality of the applicant's pre-sentence custody. The Court noted that the full details of those custody periods did not appear to have been specifically drawn to the sentencing judge's attention. Both parties agreed that an error existed.

The Court held that correcting this mathematical error did not require a fresh exercise of the sentencing discretion. It quashed the original sentence and re-sentenced the applicant to the same term of 12 years and 8-year non-parole period, but with the commencement date adjusted to reflect the correct pre-sentence custody calculation.

Orders Made

  • Time to file notice of appeal extended to 26 October 2021
  • Leave to appeal on ground 1 refused
  • Leave to appeal on ground 2 granted
  • Appeal against sentence allowed on ground 2
  • Sentence imposed in the District Court quashed
  • Applicant re-sentenced to 12 years' imprisonment commencing 20 June 2014 and expiring 19 June 2026
  • Non-parole period of 8 years specified, commencing 20 June 2014 and expiring 19 June 2022

Key Takeaways

  • Detailed factual findings made at sentencing about an applicant's role in a conspiracy, where supported by the evidence and consistent with earlier appellate findings on conviction, will not be disturbed on a sentence appeal.
  • Where a sentencing judge fails to account for the full period of pre-sentence custody when fixing a sentence commencement date, that constitutes a sentencing error capable of correction on appeal.
  • Correcting a mathematical error in the calculation of pre-sentence custody does not require the appellate court to engage in a fresh exercise of the sentencing discretion, following Lehn v R (2016) 93 NSWLR 205.
  • An applicant's failure to appeal sentence at the time of a conviction appeal, standing alone, does not preclude a later sentence appeal, though an extension of time will be required and must be justified.
  • Under the Crimes (Appeal and Review) Act 2001 (NSW), an inquiry into conviction under s 79 is not available in respect of a federal offence, a point confirmed in earlier related proceedings.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), ss 11.5(1) and 307.11(1)
- Crimes Act 1914 (Cth)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78 and 79

Cases
- Cranney v R; Huynh v R [2017] NSWCCA 234; (2017) 269 A Crim R 449
- Huynh v The Queen [2019] HCASL 6
- Application of Huy Huynh under Part 7 of the Crimes (Appeal and Review) Act 2001 for an Inquiry [2020] NSWSC 1356
- Huynh v Attorney General (NSW) [2021] NSWCA 297
- Huynh v Director of Public Prosecutions (Cth) [2021] NSWCCA 294
- R v Christopher Phillip Cranney; R v Huy Bao Van Huynh [2015] NSWDC 276
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- RO v R [2019] NSWCCA 183