Huang v R [2019] NSWCCA 144

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Huang v R [2019] NSWCCA 144 Hearing dates: 5 June 2019 Date of orders: 03 July 2019 Decision date: 03 July 2019 Before: Bathurst CJ at [1]; Bell P at [2]; Hamill J at [73] Decision: 1. Leave to appeal granted.

2. Allow the appeal.

3. Quash the sentence imposed by Maiden DCJ on 20 March 2018.

4. In lieu thereof, sentence the appellant to an aggregate sentence in respect of Counts 1 and 2 of 10 years and 6 months, with a non-parole period of 7 years, 10 months and 14 days, commencing on 13 April 2016. The non-parole period is to expire on 26 February 2024 and the balance of the term on 12 October 2026. Catchwords: SENTENCING – appeal against sentence – where sentencing judge recorded that he did not accept the applicant's evidence "beyond reasonable doubt" – whether language was merely an infelicitous, emphatic rejection of the applicant's account or betrayed a fundamental misapprehension that the applicant needed to establish circumstances to the criminal standard of proof

SENTENCING – appeal against sentence – Form 1 matters – where sentencing judge arrived at a sentence for one count, discounted it for an early plea and then added a further period to the sentence to take into account Form 1 matters – whether an error in this approach

SENTENCING – non-parole period – ratio of the non-parole period and head sentence term – accumulation of two sentences where one sentence had later commencement date – where effect of accumulation meant that the statutory ratio of 75% was exceeded and not clear from sentencing judge's remarks on sentence whether this was intended Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 32(1), 44 Criminal Appeal Act 1912 (NSW) ss 5(1)(c), 6(3) Drug Misuse and Trafficking Act 1985 (NSW) s 25(2) Firearms Act 1996 (NSW) s 7(1) Cases Cited: Abbas v R [2013] NSWCCA 115; 231 A Crim R 413 Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 Browne v Dunn (1893) 6 R 67; [1893] 1 WLUK Galvin v R [2015] NSWCCA 88 GP v R [2017] NSWCCA 200 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Parris v R [2013] NSWCCA 5 Perdija v R [2012] NSWCCA 244 Pham v R [2013] NSWCCA 217 R v Bavadra [2000] NSWCCA 292; 115 A Crim R 154 R v Vougdis (1989) 41 A Crim R 125 RL v R [2018] NSWCCA 274 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Tran v R [2014] NSWCCA 85 White v R [2013] NSWCCA 242 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: Yu-Che Huang (Applicant) Crown (Respondent) Representation: Counsel: I McLauchlan (Applicant) B Hatfield (Crown)