Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Huynh v Director of Public Prosecutions (Cth) [2021] NSWCCA 294 Hearing dates: 6 December 2021 Date of orders: 6 December 2021 Decision date: 08 December 2021 Before: Basten JA; Adamson J; Wright J Decision: Application for bail refused. Catchwords: CRIME – bail – appeal bail – Court of Criminal Appeal – jurisdiction – "pending" proceeding – "substantive proceeding" pending – application for extension of time to file notice seeking leave to appeal against sentence – no substantive proceeding until extension granted – no jurisdiction to grant bail CRIME – bail – appeal bail – leave to appeal against sentence – extension of time required – proposed appeal not before court – whether extension should be granted – whether grounds reasonably arguable CRIME – bail – appeal bail – leave to appeal against sentence – "special or exceptional circumstances" – ground must be stronger than merely arguable – ground must support release before likely date of determination of proposed appeal Legislation Cited: Crimes Act 1914 (Cth), s 16E Crimes (Appeal and Review) Act 2001 (NSW), Pt 7 Criminal Appeal Act 1912 (NSW), s 10 Crimes (Sentencing Procedure) Act 1999 (NSW), s 24 Bail Act 2013 (NSW), ss 5, 22, 59, 61, 67 Cases Cited: Almaouie v R [2021] NSWCCA 274 Cranney v The Queen; Huynh v The Queen (2017) 325 FLR 173; [2017] NSWCCA 234 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 Mashayekhi v R [2021] NSWCCA 55 Category: Procedural rulings Parties: Huy Bao Van Huynh (Applicant) Director of Public Prosecutions (Cth) (Respondent) Representation: Counsel: Applicant self-represented Mr S Duggan (Respondent) Solicitors: Director of Public Prosecutions (Cth) (Respondent) File Number(s): 2021/317696 Judgment 1. THE COURT: On 20 November 2015 the applicant, Huy Huynh, was sentenced by Judge Whitford SC in the District Court in relation to a conspiracy to import border-controlled precursor drugs. The sentence comprised a term of imprisonment for 12 years, with a non-parole period of 8 years. The sentence commenced on 1 August 2014, so that the non-parole period is due to expire on 31 July 2022. On 26 October 2021 the applicant filed a notice of intention to appeal against sentence. By a bail application dated 27 October 2021 the applicant now seeks release on bail pending determination of his sentence appeal. It is the bail application which is presently before this Court; the sentence appeal has been listed for 4 March 2022. 2. The delay in seeking to appeal the sentence imposed in 2015 requires explanation. The applicant was vigorous in his pursuit of challenges to his conviction. He appealed to this Court in 2016; he sought special leave to appeal to the High Court; having failed in those two challenges, he sought an inquiry into his conviction under Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW) ("Appeal and Review Act"). Although he originally had legal representation for his conviction appeal, he appeared unrepresented at the hearing of the appeal and was unrepresented in pursuing the matter further. When his Pt 7 review was dismissed by Garling J, he commenced judicial review proceedings in the Court of Appeal. In the course of those proceedings, by arrangement between the Registrar and the Bar Association Pro Bono Panel, senior and junior counsel were obtained to represent him. He says it was in the course of speaking to counsel for that purpose that he discovered that he had an available right of appeal against sentence, which he had not pursued. 3. Whether that explanation is accepted and warrants an extension of time in the order of five years to allow an appeal out of time against sentence are matters best left to the Court which hears the application with respect to the sentence. However, it is not possible for this Court, in considering the bail application, to disregard the need for an extension of time. At the moment the only document filed is a notice of intention, seeking an extension of time to appeal: that does not constitute the commencement of a proceeding, without which this Court has no power to grant bail. That conclusion follows from the following provisions. 4. First, the power to grant bail is conferred by the Bail Act 2013 (NSW), s 61, which states that a court "may hear a bail application for an offence if proceedings for the offence are pending in the court." The term "proceedings for an offence" is defined to include "proceedings on an appeal against conviction or sentence": s 5(1)(d). However, a proceeding is not "pending" in the court unless there is a "substantive proceeding" pending in the court: s 59. A proceeding relating to bail is not a substantive proceeding: Bail Act, s 5(3)(a). (A timely application for leave to appeal against sentence would be a substantive proceeding.) There are additional powers conferred on the Court of Criminal Appeal pursuant to s 67 of the Bail Act, but none of them assists the applicant. It follows that, unless and until an extension of time is granted, and an application for leave to appeal against sentence is filed in accordance with that extension of time, there is no substantive proceeding pending in this Court. 5. This result is consistent with an application of s 10(2)(b) of the Criminal Appeal Act 1912 (NSW), which states that "an appeal against a conviction or sentence is taken to be pending in the court if notice of intention to appeal or apply for leave to appeal has been duly given to the court (unless the appeal or application has not been made within any time it is required to be made by the rules of court)." Nevertheless, although s 10(2) is stated to operate "[f]or the purposes of any other Act … (whether enacted … before or after the commencement of this subsection)", it would, to the extent it is inconsistent with a particular subsequent statute such as the Bail Act, be treated as impliedly repealed to the extent of the inconsistency. [1] 6. In Mashayekhi v R [2] this Court, facing a similar circumstance, held that there were no pending proceedings before it because the application had not been brought within time and no extension had been given. [3] The Court declined to extend time on the basis of two factors, namely (i) that the evidence before the Court did not adequately explain or account for the extensive delays in bringing the appeal, and (ii) there was insufficient information to enable the court to assess the merits of the proposed appeal. [4] 7. Both the applicant and the Director of Public Prosecutions have filed written submissions on the bail application which address the merits of the proposed sentence appeal. The Director opposes an extension of time for the lodging of the appeal, for reasons which will be identified shortly. That opposition should not be dismissed for pragmatic reasons, so that the Court can entertain the current application. A significant reason why an extension should not be granted at this stage, if it is not necessary to do so, is that although the applicant was unrepresented on the hearing of his appeal against conviction (on 22 February 2017) it is clear that he had had legal representation to consider the appeal, the court noting that it had had the benefit of extensive submissions from Mr Dhanji SC on his behalf. [5] 8. On a more complete analysis of the applicant's case, the Court may be persuaded that the lengthy delay is excusable, perhaps because there were mitigating factors not presently appreciated, or because there was merit in the appeal which warranted consideration in the interests of justice. At present the Court is not so persuaded. Nothing that follows in these reasons should discourage the applicant from putting whatever submissions he thinks appropriate when the matter comes before the Court on 4 March 2022. 9. It is not necessary for this purpose to say anything further about the nature of the explanation of the delay. It is, however, necessary to say why the Court is not immediately persuaded that the grounds of appeal warrant an extension of time. As will be seen, that is not because the grounds are entirely without merit. 10. Although the proposed grounds are two in number, on one view there are three separate grounds. The two identified grounds are as follows: "1. The sentencing judge erred by taking into account on sentence relevant facts that were not proven beyond reasonable doubt. 2. The sentencing judge miscalculated the applicant's sentence by failing to include the total periods spent in custody before being released on bail." 1. The third ground appears from the written submissions filed on the proposed appeal, which raises an issue as to parity or, more accurately, the proportionality of the sentence as compared with that of his co-accused, Mr Cranney. [6] 2. This additional ground can be dealt with in addressing ground 1. The two grounds are based on a common substratum of fact. The factual basis relates to the evidence given by a third person involved in the conspiracy, namely Mr Lamella. It was, on the applicant's case, Mr Lamella's evidence which led to the finding by the sentencing judge, expressed to have been established beyond reasonable doubt, that the applicant was implicated in two importations which took place in June 2012. (There were two other importations in March 2012.) He submitted that if the sentencing judge had not been so satisfied, the sentence was clearly excessive. On the same basis, he asserted a lack of appropriate disparity between his sentence and that imposed on Mr Cranney. 3. Based on the outline of inadequacies alleged to exist in Mr Lamella's evidence, ground 1 would be arguable. However, what must be taken into account is that the same submissions were made: (i) in challenging his conviction in this Court in 2017; (ii) in an inquiry under Pt 7 of the Appeal and Review Act, conducted by Garling J in 2020, and was rejected in both cases. It is doubtful that leave would be granted if the appeal were based on no more than a reagitation of that ground. At this preliminary stage, that appears to be the sole proposed basis of ground 1 (and the accompanying parity ground). 1. Even if that were not sufficient to dispose of the matter, it is, nevertheless, necessary for the applicant to demonstrate something more than an arguable case that the appeal would be upheld. Section 22(1) of the Bail Act provides that this Court may not grant bail in respect of an appeal against sentence in the absence of "special or exceptional circumstances" which would justify a grant of bail. 2. The second ground relied upon by the applicant falls into a different category. The Director concedes that it may have merit. Pursuant to s 16E(3) of the Crimes Act 1914 (Cth), when imposing a sentence of imprisonment, the court must take into account any period that the offender spent in custody prior to the sentencing. That provision mirrors s 24(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which applies with respect to State offences. 3. If the applicant can demonstrate that, whether through inadvertence (because neither party referred to the period) or for some other reason, the sentencing judge failed to take into account a period of pre-sentence custody, the applicant would have a good case for a variation of the sentence. As a matter of principle, either by backdating or by reduction of the sentence period, this Court will usually adjust a sentence in a case of genuine error. 4. The Director concedes that there was a period of some 43 days after the applicant was granted bail, before he was released, which period was spent in custody but was not taken into account by the sentencing judge. Accepting that to be so, the result of success on proposed ground 2 would be to bring the termination of the non-parole period back to 18 June 2022. That is a date more than three months after the date on which the appeal proceedings have been listed for hearing. Further, this is an error of the kind which allows an arithmetical adjustment of the period of the sentence without the need to re-exercise the sentencing discretion generally. [7] 5. Accordingly, even though ground 2 might warrant a grant of leave to appeal (and an accompanying extension of time) it would not warrant a grant of bail pending the hearing of the appeal. That is because it can be expected that the appeal will be determined well before the expiration of any varied non-parole date. 6. For these reasons, it is not necessary to determine the application for an extension of time within which to lodge an application for leave to appeal against sentence. Bail would be refused if the Court had jurisdiction to grant it. In the result the Court does not have jurisdiction and bail must be refused for that reason. The Court's order is: Application for bail refused. ********** Endnotes 1. Compare Mashayekhi v R [2021] NSWCCA 55 at [14] (Hoeben CJ at CL and Wilson J). 2. See fn 1. 3. At [16] (Hoeben CJ at CL and Wilson J) and at [35] (Hamill J). 4. Mashayekhi at [18] (Hoeben CJ at CL and Wilson J). (Hamill J took a more generous view of the explanation provided and would have extended time, although he would have refused the application for bail.) 5. Cranney v The Queen; Huynh v The Queen (2017) 325 FLR 173; [2017] NSWCCA 234 at [12] (Price J, Hoeben CJ at CL and Latham J agreeing). 6. Applicant's written submissions on appeal, pars 66ff. 7. See Almaouie v R [2021] NSWCCA 274 at [25] (Beech-Jones CJ at CL, RA Hulme and Wilson JJ agreeing), applying Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 at [72] per Bathurst CJ. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 December 2021