Huynh v R [2022] NSWCCA 45

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Huynh v R [2022] NSWCCA 45 Hearing dates: 4 March 2022 Date of orders: 25 March 2022 Decision date: 25 March 2022 Before: Davies J at [1] Bellew J at [2] Fagan J at [42] Decision: (1) The time in which to file a notice of appeal is extended until 26 October 2021. (2) Leave to appeal in respect of ground 1 is refused. (3) Leave to appeal in respect of ground 2 is granted. (4) The appeal against sentence is allowed in respect of ground 2. (5) The sentence imposed on the applicant in the District Court is quashed. (6) In lieu thereof, the applicant is sentenced to imprisonment for 12 years commencing on 20 June 2014 and expiring on 19 June 2026. (7) A non-parole period of 8 years is specified, commencing on 20 June 2014 and expiring on 19 June 2022. Catchwords: CRIMINAL LAW – Sentence – Appeal – Where applicant was convicted of conspiring to import a border controlled precursor – Where Crown case at trial asserted that the conspiracy encompassed four separate importations – Where the sentencing judge found that the applicant was actively involved in all importations – Whether the evidence was sufficient to establish such involvement beyond reasonable doubt – Where issue addressed in the course of a previous determination of the applicant's appeal against conviction – Where evidence supported the findings of the sentencing judge – Leave to appeal on that ground refused CRIMINAL LAW – Offences – Sentence – Appeal – Error in the sentence imposed arising from a failure to take into account the entirety of the periods of the applicant's pre-sentence custody – Agreed position between the parties – Sentence quashed and applicant re-sentenced to correct the mathematical error – No requirement to engage in a fresh exercise of the sentencing discretion Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) Criminal Code 1995 (Cth) Crimes Act 1914 (Cth) Cases Cited: Application of Huy Huynh under Part 7 of the Crimes (Appeal and Review) Act 2001 for an Inquiry [2020] NSWSC 1356 Cranney v R; Huynh v R [2017] NSWCCA 234; (2017) 269 A Crim R 449 Huynh v Attorney General (NSW) [2021] NSWCA 297 Huynh v Director of Public Prosecutions (Cth) [2021] NSWCCA 294 Huynh v The Queen [2019] HCASL 6 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 R v Christopher Phillip Cranney; R v Huy Bao Van Huynh [2015] NSWDC 276 RO v R [2019] NSWCCA 183 Category: Principal judgment Parties: Huy Van Huynh – Applicant Regina – Respondent Representation: Counsel: Self-represented – Applicant (ground 1) T Woods – Applicant (ground 2) S Duggan – Respondent