Huynh v R [2014] NSWCCA 147

Huynh v R [2014] NSWCCA 147

The sentencing judge applied the R v Way approach by treating the standard non-parole period as the starting point and finding no reason to depart from it after classifying the offence as mid-range. That approach was erroneous under Muldrock. On re-sentencing, taking account of the serious commercial heroin supply,...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
08 August 2014
Procedural Posture
Criminal Appeal Against Sentence / Court of Criminal Appeal Appeal on Referral Under S 79(1)(b) Crimes (appeal and Review) Act 2001 (nsw); Re Sentencing
Outcome
Appeal allowed; sentence quashed; appellant re-sentenced to 12 years imprisonment with a non-parole period of 8 years.
Legal Topics
['appeal Against Sentence' 'standard Non Parole Period' 'muldrock Error' 'supply Commercial Quantity of Heroin' 'parity Between Co Offenders' 'rehabilitation' 'special Circumstances' 're Sentencing']
['criminal Law' 'sentencing' 'criminal Procedure'] ['appeal Against Sentence' 'standard Non Parole Period' 'muldrock Error' 'supply Commercial Quantity of Heroin' 'parity Between Co Offenders' 'rehabilitation' 'special Circumstances' 're Sentencing']

Source-derived case record

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Procedural Posture

Criminal Appeal Against Sentence / Court of Criminal Appeal Appeal on Referral Under S 79(1)(b) Crimes (appeal and Review) Act 2001 (nsw); Re Sentencing

Legal Issues

  1. 1 ['Whether the sentencing judge erred by giving the standard non-parole period determinative significance under the pre-Muldrock approach.' 'Whether a different, less severe sentence was warranted under s 6(3) Criminal Appeal Act 1912 (NSW).' 'How parity with co-offenders should be considered on re-sentencing where co-offenders were charged with different and additional offences.' "Whether the appellant's post-sentence conduct demonstrated rehabilitation and special circumstances justifying a longer parole period."]

Ratio Decidendi

The sentencing judge applied the R v Way approach by treating the standard non-parole period as the starting point and finding no reason to depart from it after classifying the offence as mid-range. That approach was erroneous under Muldrock. On re-sentencing, taking account of the serious commercial heroin supply, the appellant's limited prior record, post-sentence rehabilitation, parity with co-offenders, and special circumstances, a different and less severe sentence of 12 years with an 8 year non-parole period was warranted.

Court Disposition

Appeal allowed; sentence quashed; appellant re-sentenced to 12 years imprisonment with a non-parole period of 8 years.

Orders

  • ['Appeal allowed.' 'Quash the sentence imposed in the District Court.' 'In lieu thereof the appellant is sentenced to a non-parole period of 8 years commencing on 27 November 2007 and expiring of 26 November 2015. There will be a balance of terms of four years commencing 27 November 2015 and expiring on 26 November...