Huynh v R

1. [1]

   DAVIES J: I agree with Bellew J.

2. [2]

   BELLEW J: Huy Bao Van Huynh (the applicant) was jointly indicted with Christopher Phillip Cranney (Cranney) in the District Court in respect of the following offence:

3. [3]

   That offence, to which the applicant pleaded not guilty, was contrary to ss 11.5(1) and 307.11(1) of the Criminal Code 1995 (Cth), and carried a maximum penalty of 25 years imprisonment, and/or a fine of 5,000 penalty units.

4. [4]

   Following a trial before his Honour Judge Whitford SC and a jury, the applicant was found guilty of that offence. Cranney was also found guilty, of that offence as well as a number of others for which he was indicted.

5. [5]

   On 20 November 2015 the applicant was sentenced to imprisonment for 12 years commencing on 1 August 2014 and expiring on 31 July 2026, with a non-parole period commencing on 1 August 2014 and expiring on 31 July 2022. He now seeks leave to appeal against his sentence on the two grounds considered below.

The history of the proceedings

1. [6]

   In circumstances where the applicant requires an extension of time in which to bring his application for leave to appeal, it is necessary to set out a brief history of the proceedings against him, and make reference to other related proceedings to which he has been a party.

2. [7]

   I have already noted that the applicant was sentenced on 20 November 2015. An appeal against his conviction, along with an appeal brought by Cranney against his conviction, were dismissed by this Court. [1] No application for leave to appeal against sentence was brought by the applicant at that time.

3. [8]

   The applicant then sought special leave to appeal against this Court’s decision to the High Court. That application was refused. [2]

4. [9]

   On 13 October 2020, an application brought by the applicant pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) for an enquiry into his conviction pursuant to s 79, was dismissed by Garling J. [3] A subsequent application for judicial review of that decision resulted in a declaration that it was void because an enquiry under s 79 was not available in respect of a Federal offence. [4]

5. [10]

   The applicant filed a notice of intention to seek leave to appeal against his sentence on 26 October 2021. He then made an application for his release which was refused by this Court on 8 December 2021. [5]

6. [11]

   The applicant has stated the following in an affidavit of 14 October 2021 in support for an application for an extension of time: [6]

7. [12]

   Specifically in respect of his application to extend time in respect of ground 2, the applicant relied upon the affidavit of Matthew Ekstein, solicitor, of 30 November 2021, [7] in which Mr Ekstein indicated that he first had a conference with the applicant on 21 October 2021, and formed the view that ground 2 had merit. [8]

THE FACTS OF THE OFFENDING

1. [13]

   The Crown alleged that the applicant was a party to a conspiracy with those named in the Indictment to import quantities of pseudoephedrine into Australia from Vietnam. The Crown case at trial was that the conspiracy encompassed four such importations which were carried out on the following dates:

2. [14]

   Against that broad background, the sentencing judge outlined the general nature of the Crown case against the applicant and Cranney (noting that his Honour’s references to count 2 are references to the count of which the applicant was found guilty): [9]

3. [15]

   The sentencing judge set out his factual findings in relation to the first importation in considerable detail. [10] In circumstances where the applicant does not challenge any of those findings, it is not necessary to further refer to them. In terms of the second, third and fourth importations, the sentencing judge set out his factual findings in similar detail. [11] Given that this ground is directed towards such findings, they should be set out in full:

The findings of the sentencing judge

1. [16]

   The findings of the sentencing judge as to the circumstances of the applicant’s offending are set out above. His Honour found that, along with Cranney, the applicant had performed a vital role in the conspiracy. [12] In assessing that role, his Honour expressly rejected [13] the submission now advanced by the applicant in support of this ground, namely that the evidence was insufficient to establish that the applicant’s involvement in the conspiracy extended to the second, third and fourth importations.

2. [17]

   In terms of the applicant’s involvement in the second, third and fourth importations, his Honour found that he:

Submissions of the applicant

1. [18]

   Although counsel appeared for the applicant in respect of ground 2, the applicant was self-represented in respect of ground 1. The applicant’s written submissions included assertions that:

2. [19]

   Three of those complaints (namely those in (i), (ii) and (iii) go to the applicant’s conviction, in circumstances where an appeal against that conviction has previously been dismissed by this Court. All four complaints go well beyond ground 1 as it has been framed and in those circumstances, I have not considered them.

3. [20]

   The gravamen of the applicant's complaint under this ground is that in circumstances where the sentencing judge was obliged to sentence him in accordance with the jury's verdict, and to be satisfied beyond reasonable doubt of any aggravating factor on sentence, there was insufficient evidence to establish to that standard that he played any role in the conspiracy beyond the first importation. In advancing that submission, the applicant asserted that the evidence of his involvement in the second, third and fourth importations was limited to that of the witness Lamella, and that in the absence of such evidence being independently corroborated, it was not open to the sentencing judge to conclude, beyond reasonable doubt, that his role in the conspiracy extended to involvement in those three importations.

Submissions of the Crown

1. [21]

   In challenging the fundamental premise of this ground, namely that the applicant's involvement in the second, third and fourth importations was supported only by Lamella’s evidence, the Crown carefully took the Court to a number of other aspects of the evidence which was before the jury at the applicant's trial. The Crown submitted that such evidence, some of which I have discussed below, independently corroborated Lamella’s account. The Crown submitted that the whole of the evidence established, beyond reasonable doubt, the applicant's involvement in all four importations and that there was no error on the part of the sentencing judge.

Consideration

1. [22]

   In considering this ground, it is appropriate to commence by observing that Ground 2 in support of the applicant’s previous appeal against his conviction asserted that the verdict of the jury was unreasonable because:

2. [23]

   In dismissing the appeal, Price J (with whom Hoeben CJ at CL and Latham J agreed) said the following: [23]

3. [24]

   His Honour continued: [24]

4. [25]

   Inherent in those passages of his Honour’s judgment is a clear rejection of the fundamental proposition that the applicant now seeks to advance in support of this ground, namely that there was insufficient evidence to establish that he was involved in the second, third and fourth importations. That presents the applicant with an initial difficulty.

5. [26]

   Moreover, the finding of the sentencing judge that the applicant was involved in all four importations is supported by the independent evidence to which the Court was taken by the Crown, and which corroborated that of Lamella. In circumstances where much of that evidence was expressly referred to by the sentencing judge in his reasons, [25] it is not necessary to engage in an analysis of the entirety of it. Reference to the following matters demonstrates that there was no error in the sentencing judge’s findings.

6. [27]

   To begin with, the applicant does not contest that he was involved in the first importation. I accept the Crown's submission that this is probative of the applicant's involvement in the second, third and fourth importations. That is particularly so in circumstances where (inter alia) the same modus operandi was used in respect of all four importations, including the fact that the couriers flew to Vietnam before the importations into Australia were effected.

7. [28]

   The applicant's travel movements are also telling, particularly when they are viewed in conjunction with the evidence of the deposits made to his bank account. The relevant chronology is follows: [26]

8. [29]

   The fact that cash deposits totalling $218,077.00 were made to the applicant's account during a period of approximately 6 weeks between 2 July 2012 and 14 August 2012 is, of itself significant. Such significance becomes all the greater in light of the fact that first, the applicant was not even in Australia in that period, and secondly, such period was after the second, third and fourth importations. The inference that those deposits related to those three importations is overwhelming.

9. [30]

   The significance of this evidence becomes greater still in light of the applicant’s sworn evidence at his trial. In evidence in chief, he was specifically asked about the deposits which were made to his bank accounts: [27]

10. [31]

    In cross-examination he was asked: [28]

11. [32]

    The applicant's explanation for the cash deposits was, in my view, entirely fanciful.

12. [33]

    In light of such evidence, the proposition that the only evidence of the applicant’s involvement in the second, third and fourth importations was the uncorroborated evidence of Lamella is wholly without merit. The sentencing judge made no error in reaching the conclusions that he did.

13. [34]

    In these circumstances, and given the fact that the issue raised by the applicant was previously canvassed by this Court in determining his appeal against conviction, leave should be refused in respect of this ground.

The reasons of the sentencing judge

1. [35]

   At the conclusion of his reasons the sentencing judge imposed sentence on the applicant in the following terms: [29]

The applicant’s periods of pre-sentence custody

1. [36]

   During the course of the hearing before this Court, an issue was raised with the parties as to the precise period(s) of the applicant's pre-sentence custody. At the Court’s request, counsel subsequently provided a joint memorandum setting out the agreement of the parties that, following his arrest on 14 October 2013, [30] the applicant:

2. [37]

   Bearing in mind this chronology, it is further agreed between the parties that the applicant’s total period of pre-sentence custody was 518 days, comprised of:

Consideration

1. [38]

   Section 16E of the Crimes Act 1914 (Cth) provides (inter alia) as follows:

2. [39]

   The effect of s 16E2(a) is that when imposing a sentence for a Federal offence, a sentencing court may take into account any period that the offender spent in custody in relation to such offence, and may adjust the sentence accordingly.

3. [40]

   It is apparent that in the present case the sentencing judge did not make the correct adjustment, although in fairness it does not appear that the entirety of details of the applicant’s periods of pre-sentence custody were specifically brought to his attention. For this reason, I am satisfied that error has been established, [35] and that ground 2 is made out. This Court can correct that error by taking into account the totality of the applicant’s period of pre-sentence custody set out above, and re-sentencing him. That does not require the Court to engage in a re-exercise of the sentencing discretion. [36]

ORDERS

1. [41]

   I propose the following orders:

   1. (1)

      The time in which to file a notice of appeal is extended until 26 October 2021.

   2. (2)

      Leave to appeal in respect of ground 1 is refused.

   3. (3)

      Leave to appeal in respect of ground 2 is granted.

   4. (4)

      The appeal against sentence is allowed in respect of ground 2.

   5. (5)

      The sentence imposed on the applicant in the District Court is quashed.

   6. (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. (7)

      A non-parole period of 8 years is specified, commencing on 20 June 2014 and expiring on 19 June 2022.

2. [42]

   FAGAN J: I agree with Bellew J.