Hoang v R

1. [1]

   THE COURT: By an application dated 30 May 2022, the appellant seeks the following orders:

2. [2]

   The respondent consented to these orders. The parties provided a joint submission in support of the orders. The Court has considered the application for the orders on the papers. For the following reasons, the Court will make two of those consent orders and note the effect of the third.

Background

1. [3]

   The relevant events concerning the appellant’s trial were set out by the High Court in Hoang v The Queen (2002) 96 ALJR 453; [2022] HCA 14; (Hoang) at [3]-[7]:

2. [4]

   After his trial, on 15 April 2016 the appellant was sentenced to an aggregate sentence of 24 years’ imprisonment commencing on 19 October 2015 and expiring on 18 October 2039. An aggregate non-parole period of 18 years was imposed, commencing on 19 October 2015 and expiring on 18 October 2033. Indicative sentences were specified on all counts. In respect of Count 1, an indicative sentence of 5 years’ imprisonment was specified along with a non‑parole period of 3 years and 9 months. In respect of Count 5, an indicative sentence of 15 years’ imprisonment was specified along with a non-parole period of 11 years and 3 months.

3. [5]

   The appellant appealed to this Court against his convictions. By a majority, his appeal was dismissed (Hoang v R (2018) 273 A Crim R 501; [2018] NSWCCA 166). The appellant sought and was granted special leave to appeal to the High Court. On 13 April 2022, the High Court upheld the appeal. The High Court set aside the appellant’s convictions on Counts 4 and 6 to 12 and ordered a new trial in relation to those counts (Hoang at [47]). The respondent has advised that the appellant will be re-tried on those counts.

4. [6]

   In relation to Counts 1 and 5, the High Court found (Hoang at [46]):

5. [7]

   Order 3 made by the High Court was as follows:

6. [8]

   Both parties agreed that, as the convictions on Counts 4 and 6 to 12 have been set aside, then the aggregate sentence imposed on the appellant, which included indicative sentences referable to those counts, must be set aside. We agree. The parties also agreed that, on the quashing of his aggregate sentence and his convictions on those counts, he is required to be detained in custody (Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 5.10). We also agree. However, we do not propose to make an order to that effect as sought by the parties. The appellant’s detention under r 5.10 operates as a matter of law. Importantly, the operation of that rule is subject to the operation of the Bail Act 2013 (NSW). If the Court were to make order (iii) as sought by the parties then it has the potential to impede the proper application of the Bail Act (although the prospects of the applicant being granted bail appear very unlikely).

7. [9]

   As for resentencing in relation to Counts 1 and 5, s 7(1) of the Criminal Appeal Act 1912 enables this Court to undertake that exercise. However, s 12(2) also provides:

8. [10]

   Both parties agree that remittal is appropriate because material relevant to the appellant’s sentencing and re-sentencing is not before this Court and remittal to the District Court would preserve the parties’ rights of appeal in respect of the new sentence. We agree. We would add that, given the appellant is to face a new trial on counts that are related to Counts 1 and 5, this course will enable the parties and the trial court to also consider whether or not sentencing on Counts 1 and 5 should await the outcome of the new trial.

9. [11]

   Accordingly, the Court makes the following orders:

10. [12]

    The Court notes that: