Huynh v R [2006] NSWCCA 224

Huynh v R [2006] NSWCCA 224

The sentencing discretion did not miscarry. It was open to the sentencing judge to impose the same sentence on the applicant as on Pham because, despite different physical roles, both participated in a joint criminal enterprise and the applicant's very recent involvement in a fatal armed robbery heightened his culpability and the need for deterrence and protection of society. The disparity with Nguyen was justified by Nguyen's plea to a lesser charge, his early guilty plea, lesser criminality, remorse and rehabilitation prospects. The judge did not impermissibly double-count elements of the offence, because the relevant aggravating feature was the firing of the gun, which was not an...

Jurisdiction
Australia
Judgment Date
28 July 2006
Procedural Posture
Criminal Application for Leave to Appeal Against Sentence / Court of Criminal Appeal: Leave to Appeal Granted; Appeal Against Sentence Dismissed
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['robbery Whilst Armed With a Dangerous Weapon' 'parity of Sentence' 'aggravating Factors' 'accumulation of Sentence' 'special Circumstances' 'non Parole Period' 'totality']
['criminal Law' 'sentencing'] ['robbery Whilst Armed With a Dangerous Weapon' 'parity of Sentence' 'aggravating Factors' 'accumulation of Sentence' 'special Circumstances' 'non Parole Period' 'totality']

Case Brief

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Procedural Posture

Criminal Application for Leave to Appeal Against Sentence / Court of Criminal Appeal: Leave to Appeal Granted; Appeal Against Sentence Dismissed

Legal Issues

  1. 1 ['Whether the applicant had a justifiable sense of grievance because he received the same sentence as co-offender Pham and a much heavier sentence than co-offender Nguyen.' 'Whether the sentencing judge erred by taking the actual and threatened use of violence and of a weapon into account as aggravating factors under s21A(2) Crimes (Sentencing Procedure) Act.' 'Whether the non-parole period, in light of partial accumulation on the manslaughter sentence, resulted in inadequate parole eligibility or otherwise disclosed error.' 'Whether the sentence was manifestly excessive.']

Ratio Decidendi

The sentencing discretion did not miscarry. It was open to the sentencing judge to impose the same sentence on the applicant as on Pham because, despite different physical roles, both participated in a joint criminal enterprise and the applicant's very recent involvement in a fatal armed robbery heightened his culpability and the need for deterrence and protection of society. The disparity with Nguyen was justified by Nguyen's plea to a lesser charge, his early guilty plea, lesser criminality, remorse and rehabilitation prospects. The judge did not impermissibly double-count elements of the offence, because the relevant aggravating feature was the firing of the gun, which was not an...

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Grant leave to appeal.' 'Dismiss the appeal.']