Huynh v R

The history of the proceedings

1. 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. 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. The applicant then sought special leave to appeal against this Court's decision to the High Court. That application was refused. [2]
4. 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. 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. The applicant has stated the following in an affidavit of 14 October 2021 in support for an application for an extension of time: [6] I was under the assumption that I was unable to appeal my sentence as I had already had a conviction appeal but after speaking to Mr Peter Bruckner of counsel in late May 2021, I was informed that I am still able to appeal my sentence as I have not appealed my sentence yet and Mr Bruckner was also of the opinion that I may have merit with respect to a sentence appeal after I explained the circumstances of my case to him.
7. 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. 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: 1. 9 March 2012 - the first importation (approximately 32kg); 2. 4 June 2012 - the second importation (approximately 34kg); 3. 5 June 2012 - the third importation (approximately 18kg); and 4. 6 June 2012 - the fourth importation (approximately 28kg).
2. 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] [7] The offences for which the offenders are to be sentenced arise out of criminal conduct engaged in by corrupt Customs officers and a corrupt baggage handler working at the Sydney International Airport (SIA), all of whom abused their positions and participated in importing into Australia substantial quantities of pseudoephedrine, some of which was intercepted, some of which was not. [8] The Customs officers involved in the count 2 combination were Adrian Lamella, Paul Valsamakis and Mr Cranney. Within Customs, Mr Cranney was the most senior of the three. The baggage handler who was a part of the combination was a friend of Lamella's, David Harb, who then worked for a baggage handling business operating at SIA called 'Menzies Aviation'. The other participants included Bruno Napoli, an associate of Lamella, and Mr Huynh, who was an associate of Napoli. There were also 7 couriers used to effect the importations.
3. 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: [43] As both Mr Cranney and Valsamakis were due to be transferred out of the ABS team in the months following the March importation, it was decided that they would try to do another importation as soon as possible. Valsamakis, Lamella and Mr Cranney also discussed having Lamella transferred into the ABS room so that they could maximise their chances of the importations being successful. In the meantime, Lamella continued to meet with D Harb to identify potential dates for future importations based on the various participants' respective rosters. Lamella passed on the possible dates to Valsamakis, Mr Cranney, Huynh and Napoli and also discussed with D Harb, Valsamakis and Mr Cranney importing 3 bags per day, containing 20 kgs each, so that they could make as much money as possible. It was ultimately agreed that they would import about 120kg of pseudoephedrine split across three Thai Airlines flights arriving on the mornings of 4, 5 and 6 June 2012. [44] During the planning phase for the June importations, Lamella met with Napoli and also separately with Huynh to check on their progress in organising couriers and Huynh's progress in sourcing the pseudoephedrine. During these meetings Lamella provided advice about the methods of concealment, baggage screening processes in Australia and overseas and the courier profiles that were to be used. Lamella also met with Valsamakis and Mr Cranney at various locations (the Terrace Bar at SIA; Flower Power Nursery at Kingsgrove; Tempe Reserve; and Valsamakis' home) to inform them of the progress of the plans. [45] Eventually, Napoli informed Lamella that Mr Huynh had been able to source pseudoephedrine for the importations and the conspirators discussed the amount of money that would be made from the importations. Mr Cranney and Valsamakis informed Lamella that they each wanted to be paid between $350,000.00 - $380,000.00 for the June importations. During their discussions about money, Mr Cranney informed Lamella that he had been talking to people that he knew about the street price of pseudoephedrine and he thought that they were being underpaid. [46] Between 22 April 2012 and 9 May 2012, Mr Huynh travelled to Vietnam for the purpose of sourcing pseudoephedrine for the importations. Whilst he was in Hong Kong on 6 May 2012, Huynh purchased a Blackberry mobile phone. By 9 May 2012, five couriers had been recruited in Queensland for the purpose of travelling to Vietnam and importing the pseudoephedrine. On 21 May 2012, Samarn Prom (Prom) booked 5 business class return tickets for the couriers to travel to Ho Chi Minh City, via Bangkok, with Thai Airways - all departing on 28 May 2012. [47] On 22 May 2012, Valsamakis and Mr Cranney exchanged a series of text messages in which Valsamakis informed Mr Cranney that he had spoken to senior personnel about extending his stay in the ABS team. Around this time Mr Cranney told Valsamakis that he would speak to a senior Customs Officer about getting Lamella transferred into the ABS room to support him during the importations. Mr Cranney subsequently recommended to a supervisor, that Lamella be transferred into the ABS room for a 5 week period, commencing in late May 2012 and finishing just prior to a planned overseas trip from 2 July 2012. Following that recommendation, Lamella was rotated into the ABS team. [48] On about 26 May 2012, whilst working in the ABS room at SIA, Valsamakis became aware that a baggage handler named Chris Weeden, who was often in the company of D Harb, was under investigation. Valsamakis subsequently informed Lamella of the investigation into Weeden, and Lamella informed Mr Cranney. Lamella and Mr Cranney agreed that Weeden could be used as a distraction from their importations and as a diversion in any investigations. [49] On 28 May 2012, Mr Huynh departed Australia for Vietnam. The 5 couriers booked to travel to Vietnam from Sydney on this date did not present for their Thai Airways flight as the psuedoephedrine to be imported between 4 and 6 June 2012 wasn't ready. [50] During late May/early June 2012, Lamella met Napoli on a number of occasions to communicate with Mr Huynh who was in Vietnam, and to coordinate the final details in relation to the planned importations. During these meetings: they discussed how much gear should be in the bags and how they should be packed; they confirmed the number of couriers who were travelling, the dates on which the importations would take place and the flights that would be used; they discussed where Napoli would collect the couriers' bags from D Harb; Napoli provided Lamella with the couriers' names and details; and, Napoli provided Lamella with a description of the suitcases that the couriers' would be using. Lamella subsequently passed this information on to D Harb and Valsamakis. [51] On 1 June 2012, the five couriers each purchased new Thai Airways Business class tickets to Ho Chi Minh City. They were variously booked to return on three separate flights, arriving back in Australia on 4, 5 and 6 June 2012. Prior to departing Australia each of the couriers had been provided with a large silver hard sided suitcase to use for the importation. [52] On the morning of 4 June 2012, Valsamakis and Lamella were working in the ABS team. Mr Cranney, who was the team leader of the floor area of the Arrivals Hall, was responsible for passenger targeting and assessment. D Harb was working as a baggage handler. [53] Valsamakis and Lamella were operating the CCTV cameras in the ABS room from about 6.00am so that they were able to control the images appearing on the CCTV cameras, and (with the exception of some fixed cameras in the basement) keep the ABS cameras away from anything to do with the unloading of the Thai Airways flight. [54] Thai Airways flight (TG475) arrived with the couriers Hikaiti-Paul and Ratahi on board. Both of them had packed their checked in luggage (the silver suitcases) in Ho Chi Minh City with packages containing pseudoephedrine powder designed to look like food. It is estimated that both couriers had about 17kg of pseudoephedrine powder in each of their bags - a total of about 34kg of pseudoephedrine powder. The value of that pseudoephedrine, based on an estimate of $50,000 per kilogram (with a purity of approximately 70%) was about $1,700,000.00. [55] Hikaiti-Paul and Ratahi left SIA without collecting their checked in silver suitcases, which were retrieved from the flight by D Harb and stored in an out of the way area. Later, D Harb collected the couriers' suitcases and, using a work vehicle, drove out of SIA to the pre-arranged meeting point where he delivered the bags to Napoli. During the morning, Lamella and Napoli and Lamella and D Harb, had communicated with each other by phone regarding the delivery of the bags. [56] Whilst the Thai Airways flight was being unloaded, Mr Cranney called Lamella (who remained in the ABS room with Valsamakis) to discuss the fact that the majority of the ABS team had been diverted away from the ABS room to deal with someone having stolen some property from a duty free shop. Later that morning, Mr Cranney, Valsamakis and Lamella met for a coffee and while they were together Lamella informed them that the importation had been successful. That night Lamella and Napoli met to discuss the importation that was to take place the following day. [57] On the morning of 5 June 2012, Valsamakis and Lamella were again working in the ABS team, Mr Cranney, was again working as a supervisor in the Customs Arrivals Hall, and D Harb was working as a baggage handler. [58] Lamella and Valsamakis were again both involved in monitoring the CCTV cameras in the ABS room between 6.00am - 8.00am. During this time they kept the cameras directed away from the unloading of Thai Airways flight and focused on an unrelated investigation occurring simultaneously. [59] Thai Airways flight TG475 arrived at SIA with the courier Erlambang on board. Erlambang's silver suitcase contained a large number of packages of pseudoephedrine powder designed to look like food. It is estimated that Erlambang had 18kg of pseudophedrine powder in his bag. The value of that pseudoephedrine, based on an estimate of $50,000 per kilogram (with a purity of approximately 70%) was about $900,000.00. [60] Erlambang left SIA without collecting his checked luggage, which was retrieved from the flight by D Harb and stored in a baggage can. Later D Harb delivered Erlambang's suitcase to Napoli at Tempe. During the morning Lamella, Napoli and D Harb communicated with each other by phone regarding the delivery of the bags. At about 11:10am, Mr Cranney, Lamella and Valsamakis had a coffee together, and when they met, Lamella informed them that the importation had been a success. [61] On the morning of 6 June 2012 Valsamakis and Lamella each again commenced work in the ABS team. Mr Cranney was again working as a supervisor in the Customs Arrivals Hall. D Harb was working as a baggage handler. [62] At 5.05am, Mr Cranney sent both Valsamakis and Lamella a text message asking them to meet for a coffee. When Lamella and Valsamakis met Mr Cranney, there was another Customs officer present who informed them about a Customs investigation that was underway in relation to two passengers who had not collected their luggage from a flight on 4 June, and a baggage handler who had been removing luggage from flights. [63] On returning to the ABS room, Lamella and Valsmakis were informed by their supervisor that the ABS team would be conducting a containment exercise in relation to the Thai Airways flight which was arriving that morning. This involved retrieving any luggage that matched the appearance of the luggage that had not been collected by the first two couriers on 4 June 2012. Valsamakis and Lamella volunteered to find the luggage. [64] Between 5:56am and 5:59am Mr Cranney and Lamella exchanged a number of SMS messages about meeting up. Lamella does not recall meeting Mr Cranney at this time. However, Valsamakis recalls that at about this time, he and Mr Cranney met either outside the Customs Secure Work Area or in one of the corridors at SIA, and Mr Cranney told him that he and Lamella needed to take care of the situation in "any shape or way possible". [65] The Thai Airways flight from Ho Chi Minh City (TG475) arrived at SIA at about 7.15am. Lamella and Valsamakis attended the baggage area, located the courier's two silver suitcases and Valsamakis removed the airline bag tags from each of the bags in an unsuccessful attempt to remove identifying material from the bags. Lamella and Valsamakis then placed the suitcases on the conveyer belt to be sent to the baggage hall where the couriers had been detained. [66] The two couriers, Garcia and Musa, disembarked from the flight and were subsequently detained and arrested. Forensic examination of their suitcases revealed that they contained a total of 28.29 kilograms of pure pseudoephedrine (40.7kg gross) concealed within a total of 24 packages designed to look like food. The value of that pseudoephedrine, based on an estimate of $50,000 per kilogram (with a purity of approximately 70%) was about $2,000,000.00. [67] It is estimated that 28.29 kilograms of pure pseudoephedrine is capable of producing at least 19 kilograms of high grade methylamphetamine hydrochloride. It is further estimated that the wholesale value of that amount of methylamphetamine would be about $4,750,000.00 (based on $250,000.00 per kg) and the street value would be about $15,200,000.00 (based on $800.00 per gram). [68] That afternoon Valsamakis, Mr Cranney and Lamella met at the Flower Power Nursery, Kingsgrove. At this meeting they discussed the fallout from the detection of the importation. Lamella indicated to Valsamakis and Mr Cranney that they may have to "take a bit of a hit" on the amounts they would be paid as about 40kg of "gear" had been seized, but both Valsamakis and Mr Cranney indicated that they still expected to be paid the agreed amount. [69] Through cross-examination of Lamella and Valsamakis by his counsel, Mr Cranney attempted to advance a thoroughly incredible version of what occurred at that meeting designed to suggest that Mr Cranney had no prior knowledge or involvement in the activities of the combination. [70] Between about 7 June 2012 and 28 June 2012 , Valsamakis and Mr Cranney communicated with each other, and Lamella, again in code about being paid. Lamella in turn communicated with Napoli regarding payment. During this time the Customs Officers met and communicated about when and how much they would be paid, and Valsamakis and Mr Cranney pressured Lamella for payment. [71] Eventually on the evening of 28 June 2012, Napoli transferred a plastic bag containing a large amount of cash into Lamella's vehicle in Lamella's street. Lamella and Valsamakis sat in Lamella's car and divided up the cash. They had agreed to short change Mr Cranney by taking an extra $5,000 each, which would result in Lamella and Valsamakis each receiving $100,000.00 and Mr Cranney only $85,000.00. After splitting the money, Valsamakis left with his $100,000.00. D Harb then collected his payment of about $70,000.00 from Lamella. [72] After communicating via mobile phone, Mr Cranney drove to Lamella's home, met with Lamella outside in the street and received a plastic bag containing $85,000.00 in cash. Mr Cranney subsequently delivered the bag of cash to his brother at a pre-arranged location in western Sydney. [73] On 30 June 2012, at 10:39am, Mr Cranney called the NIB and paid his health insurance 12 months in advance at a cost of $1,169.04. At 3.15pm, Mr Cranney paid $3,000.00 ($2,600.00 being paid in cash) for a new TV, dishwasher and refrigerator at a retailer in Castle Hill. Analysis of Mr Cranney's financial records reveals that he had access to cash amounts from unknown sources between 1 January 2012 and 30 March 2012, and from 1 June 2012 to 30 December 2012. Most notably, for the month of June 2012 he had access to unknown source funds of $8,820.50, for July 2012 $6,300.00 and for August 2012 $2,882.25. [74] After arriving back in Australia on 8 June 2012, two days after the failed importation, Mr Huynh departed Australia again on 2 July 2012 and did not return until 28 August 2012. During this period, large amounts of cash were deposited into his bank accounts.

Ground 1 - His Honour the sentencing judge erred by taking into account on sentence relevant facts that were not proven beyond reasonable doubt

The findings of the sentencing judge

1. 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. In terms of the applicant's involvement in the second, third and fourth importations, his Honour found that he: 1. identified a source of pseudoephedrine in Vietnam in late December 2011 or early January 2012; [14] 2. engaged in coded communications in late December 2011 and January 2012 with Lamella, whom he knew was working as a Customs officer at Sydney International Airport, a potential importation; [15] 3. met regularly with Napoli and Lamella (together and separately) between January 2012 and June 2012 regarding: 1. sourcing pseudoephedrine from Vietnam; 2. the dates for the importations; 3. the organisation of the couriers; 4. the bags and methodology to be employed for the importations, including the amounts of precursor to be packed in the couriers' bags; and 5. the amounts of money to be paid to the Customs officers and D Harb; [16] 1. used numerous mobile phones in false names between January 2012 and June 2012 in an attempt to avoid law enforcement authorities detecting his communications with Lamella and Napoli; [17] 2. travelled regularly to Vietnam, via Hong Kong and Singapore, for the purpose of sourcing the pseudoephedrine and organising the second, third and fourth importations; [18] 3. specifically returned to Vietnam on 28 May 2012 to continue organising the second, third and fourth importations, and to resolve issues that had apparently arisen with sourcing the pseudoephedrine; [19] 4. communicated with Napoli and Lamella via a Blackberry phone whilst in Vietnam for the purpose of co-ordinating and confirming the plans for the importations, including the number of couriers to be used and the amount of pseudoephedrine to be placed in their bags; [20] and 5. operated bank accounts into which significant cash deposits were made, including in the period following the second, third and fourth importations. [21]

Submissions of the applicant

1. 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: 1. the charge in the indictment was duplicitous, and/or suffered from latent ambiguity; 2. inadequate particulars of the charge had been provided, giving rise to an abuse of process; 3. relevant aspects of his defence had not been put to the jury in the summing-up by the trial judge; and 4. there was a disparity between the sentence imposed on the applicant and that imposed on Cranney.
2. 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. 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. 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. 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: 1. there was insufficient evidence that the applicant was party to an agreement pursuant to which, at the time of the agreement, a person either intended to use any of the substance to manufacture a controlled drug or believed that another person intended to use any of the substance to manufacture a controlled drug; and 2. the evidence failed to establish to the requisite standard the existence of the conspiracy charge as opposed to separate conspiracies, one relating to the March importation and one relating to the June importations. [22]
2. In dismissing the appeal, Price J (with whom Hoeben CJ at CL and Latham J agreed) said the following: [23] [219] It was Lamella's evidence that he had discussed with both Huynh and Napoli the requirements for selecting couriers early on in the planning of the June importations. This, he said, was probably around April. He testified that Napoli told him that he was communicating with Huynh through a Blackberry mobile phone. Lamella said that Napoli showed him the messages being sent to Huynh and Huynh's replies. In cross-examination, Lamella denied that Huynh did not have direct physical contact with him after 28 February 2012. [220] Independent evidence supporting Lamella's testimony and implicating Huynh in the June importations includes: (1) Huynh's purchase of a Blackberry mobile phone in Vietnam on 6 May 2012; and 2) the following flight bookings: on 28 May 2012, Huynh checked into a flight and departed Sydney for Ho Chi Minh City. Garcia, Musa, Hikaiti-Paul, Ratahi and Erlambang did not depart on Thai Airways flight as booked. On 1 June 2012 Ratahi and Hikaiti-Paul checked in and departed for Ho Chi Minh. On 2 June 2012, Garcia, Musa and Erlambang checked in and departed for Ho Chi Minh City. On 4 June 2012, Ratahi and Hikaiti-Paul returned to Sydney. On 5 June 2012, Erlambang returned to Sydney. On 6 June 2012, Musa and Garcia returned to Sydney. On 7 June 2012, Huynh checked in to his return flight to Sydney. On 8 June 2012, Huynh returned to Sydney; and (3) the deposits totalling $87,500 into Huynh's bank account during the period 4 July 2012 to 14 August 2012.
3. His Honour continued: [24] [225] Having made my own independent assessment of the whole of the evidence against Huynh, which included the text messages exchanged between Lamella and Huynh in December 2011; Lamella's evidence of his conversation with Huynh in January 2012 during which Huynh informed Lamella that he had sourced pseudoephedrine in Vietnam; Lamella's meetings with Huynh and Napoli in January and February 2012; the intercepted phone calls between Huynh and Napoli between 18 and 25 February 2012 and intercepted text messages; the trips made by Prom and Russell to Ho Chi Minh City; the communications between Huynh and Napoli about the collection and delivery of couriers' bags; the estimated amount and value of the pseudoephedrine powder imported by Prom and Russell; the meetings between Napoli and Huynh at 125 Livingston Road, Marrickville; Lamella's evidence of his discussions, probably around April 2012, with Huynh and Napoli concerning the requirements for selecting couriers; Lamella's evidence of his conversation with Napoli that he was communicating with Huynh through a Blackberry mobile phone and of seeing messages between Napoli and Huynh, Huynh's purchase of a Blackberry mobile phone in Vietnam on 6 May 2012, the flight movements detailed at [218(2)] above; the estimated amount and value of the pseudoephedrine powder imported by Hikaiti-Paul and Ratahi on 4 June 2012, by Erlambang on 5 June 2012 and the pure pseudoephedrine imported by Garcia and Musa on 6 June 2012; the large payments into Huynh's bank account which included deposits totalling $87,500.00 during the period 4 July 2012 to 14 August 2012 inclusive, and Huynh's evidence of his knowledge of pseudoephedrine, it was open to the jury to be satisfied beyond reasonable doubt that Huynh and his co-conspirators believed that some other person intended to use the imported pseudoephedrine to manufacture methylamphetamine.
4. 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. 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. 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. 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] Date Event 9 March 2012 First importation 22 April 2012 Applicant departed Australia 9 May 2012 Applicant returned to Australia 28 May 2012 Applicant departed Australia 4 June 2012 Second importation 5 June 2012 Third importation 6 June 2012 Fourth importation 8 June 2012 Applicant arrived in Australia 12 June 2012 Cash deposit $60,117.77 22 June 2012 Cash deposit $5,000.00 29 June 2012 Cash deposit $26,200.00 2 July 2012 Applicant departs Australia 2 July 2012 Cash deposit $88,077.00 3 July 2012 Cash deposit $15,000.00 4 July 2012 Cash deposit $5,000.00 10 July 2012 Cash deposit $15,000.00 11 July 2012 Cash deposit $10,000.00 23 July 2012 Cash deposit $10,000.00 23 July 2012 Cash deposit $20,000.00 24 July 2012 Cash deposit of $8,000.00 25 July 2012 Cash deposit $22,000.00 14 August 2012 Cash deposit $25,000.00 28 August 2012 Applicant returns to Australia

1. 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.
2. 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] Q. Sir, you've seen the banking documents that were tendered in this trial that were found at your house, that's the Commonwealth banking statement and ANZ banking statement, remember those? A. Yes. Q. Those documents show amounts of money being deposited and withdrawn from your accounts? A. Mm . Q. Correct? A. Yep. Q. Where do you say that money came from? A. My TAB winnings and there was one cheque from Singapore from the Marina Bay Sans or one of the casinos. Q. Is there any money that's been deposited in any of those accounts that comes as a result of any involvement with the pseudoephedrine importations? A. It's from my TAB winnings and my casino winnings.
3. In cross-examination he was asked: [28] Q. How did you fund the trip to Vietnam in April and May 2012? A. My winnings. Q. I beg your pardon? A. With my winnings. Q. Which winnings? A. TAB winnings. Q. How much? A. I can't recall exactly, probably a couple of hundred thousand dollars. Q. A couple of hundred thousand dollars, is that right? A. Yes. Q. What, you had that in cash did you? A. No, I didn't. Q. Where was it? A. I put it in some account. Q. Which account? A. My bank account. Q. A couple of hundred thousand dollars? A. Yes, at the time. Q. Well you've seen the banking records? A. Yeah. Q. Do you have them there? A. Yes. Q. Can you point out the deposit of a couple of hundred thousand dollars you're referring to? A. I didn't say I deposited it. I said I won. Q. Well a moment ago after saying that you'd won you said you'd put it into your bank account? A. Yeah, but I didn't say I put all of it. Q. How much did you put into the bank? A. I don't remember? Q. Well can you by reference to the entries tell us which amounts of moneys that you say you won? A. There is the $13,000 on 5 April. Q. Yes? A. That's it. Q. And you spent $4,000 of that at Ermenogelda Zegna, is that right? A. Yes. Q. Is there any information in the records relating your purchase of airline tickets to travel to Vietnam on 22 April 2012? A. There's one for 21 April with Vietnam Airlines. Q. That's for the airline ticket, is that right? A. I don't recall. Q. Is that a business class flight? A. I don't think so. Q. It's an economy flight is it? A. Probably. Q. four and a half thousand dollars A. It says 313 on here. Q. That's an internal flight in Vietnam isn't it? A. I'm not too sure. The other one, yes the Singapore one, is the business class ticket. Q. That's a business class ticket? A. Yes. Q. Vietnam, is that right? A. Well I assume so. Q. There's no $200,000 is there? A. That's what I said I won at that period, around that much. Q. Where was that money kept? A. With some friends. Q. With some friends. What, did you get them to deposit the money in the bank at any time? A. I don't recall. Q. You'd recall that wouldn't you if you asked them to put it into your bank account? A. Yeah, at that time I'm saying but I don't remember at that time. Q. At any time? A. Yes. Q. When? A. When I ran out of money. Q. What, you'd ring them up and say "can you deposit money into my account"? A. Yes. Q. You've just made that up, haven't you? A. Why. Q. Because you know that in July and August, at a time when you are overseas, there's large cash deposits going into your bank account? A. Yes. Q. Who's this person that you say kept this money for you and then deposited it into the bank for you? A. Well a couple of mates borrowed money as well. Q. Who were the mates who deposited the money into your bank account? A. I don't recall at the time. Q. You don't know their names? A. Well you can get that from the bank. Q. You don't know the names of the - - A. I don't recall. Q. - - people that you gave $200,000 to? A. I didn't give $200,000 to them. Q. How much did you give them Mr Huynh? A. Maybe $20,000 something like that. Q. Only $20,000? A. Yes. Q. The deposits in July add up to $61,000? A. Yes. Q. Did you give them extra, more than 20, did you? A. I don't know if this was the same person. I remember I borrowed some money and I owed some money as well. Q. Why did you borrow money? A. Because I couldn't get it, I was overseas. How can I access my money? Q. Well as I understood it you said you had people who were sitting on money for you and they could put it into the bank for you? A. Yeah, like I said to you it was 20 grand or something. Q. You're lying aren't you? A. No. Q. This money that was deposited into your account in July 2012 came from your proceeds of importations in June, didn't they? A. No.
4. The applicant's explanation for the cash deposits was, in my view, entirely fanciful.
5. 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.
6. 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.

Ground 2 - The sentence miscarried because his Honour did not take into account the period the applicant spent in custody from the date that he was granted bail (21 August 2014) to the date he was released on bail (3 October 2014)

The reasons of the sentencing judge

1. At the conclusion of his reasons the sentencing judge imposed sentence on the applicant in the following terms: [29] Mr Huynh: For the offence of conspiracy to import a commercial quantity of a border controlled precursor the offender is convicted. I impose a term of imprisonment of 12 years commencing 1 August 2014. I fix a non-parole period of 8 years commencing 1 August 2014 and expiring 31 July 2022. I recommend release to parole on that day. There will be a period of 4 years on parole. The sentence will be completed on 31 July 2026. On parole the offender is to accept such supervision as Community Corrections NSW determines for so long as that service considers necessary. For clarity, I repeat that the total term is 12 years dating from 1 August 2014, which takes into account all the time spent in custody prior to today. The non-parole period is 8 years.

The applicant's periods of pre-sentence custody

1. 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: 1. was remanded in custody at Surry Hills on 16 October 2013; [31] 2. remained in custody until he was released on bail on 3 October 2014; [32] 3. remained at liberty on bail from 3 October 2014 until his return to custody on 9 June 2015 following the verdict of the jury; and [33] 4. remained in custody from 9 June 2015 until he was sentenced on 20 November 2015. [34]
2. 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: 1. 354 days between 14 October 2013 and 3 October 2014; and 2. 164 days between 9 June 2015 and 20 November 2015.

Consideration

1. Section 16E of the Crimes Act 1914 (Cth) provides (inter alia) as follows: Commencement of sentences (1) Subject to subsections (2) and (3), the law of a State or Territory relating to the commencement of sentences and of non-parole periods applies to a person who is sentenced in that State or Territory for a federal offence in the same way as it applies to a person who is sentenced in that State or Territory for a State or Territory offence. (2) Where the law of a State or Territory has the effect that a sentence imposed on a person for an offence against the law of that State or Territory or a non-parole period fixed in respect of that sentence: (a) may be reduced by the period that the person has been in custody for the offence; or (b) is to commence on the day on which the person was taken into custody for the offence; the law applies in the same way to a federal sentence imposed on a person in that State or Territory or to a non-parole period fixed in respect of that sentence. (3) ...
2. 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. 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. I propose the following orders: 1. The time in which to file a notice of appeal is extended until 26 October 2021. 2. Leave to appeal in respect of ground 1 is refused. 3. Leave to appeal in respect of ground 2 is granted. 4. The appeal against sentence is allowed in respect of ground 2. 5. The sentence imposed on the applicant in the District Court is quashed. 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. A non-parole period of 8 years is specified, commencing on 20 June 2014 and expiring on 19 June 2022.
2. FAGAN J: I agree with Bellew J.

Endnotes

1. Cranney v R; Huynh v R [2017] NSWCCA 234; (2017) 269 A Crim R 449.
2. Huynh v The Queen [2019] HCASL 6.
3. Application for Huy Huynh under Part 7 of the Crimes (Appeal and Review) Act 2001 for an Inquiry [2020] NSWSC 1356.
4. Huynh v Attorney General (NSW) [2021] NSWCA 297.
5. Huynh v Director of Public Prosecutions (Cth) [2021] NSWCCA 294.
6. AB 13.
7. AB 27.
8. AB 28.
9. R v Christopher Phillip Cranney; R v Huy Bao Van Huynh [2015] NSWDC 276 at [7] - [8].
10. At [18] - [42].
11. At [43] - [74].
12. At [83] - [86].
13. At [104].
14. At [105].
15. At [106].
16. At [107].
17. At [108].
18. At [114].
19. At [115].
20. At [115].
21. At [120].
22. The ground is set out in the judgment of Price J at [11].
23. At [219] - [220].
24. At [225].
25. At [16] above.
26. Compiled by reference to evidence of the applicant's travel movements at AB 272 and his bank accounts at AB 281 - 293.
27. AB 2409.6 - AB 2409.24.
28. AB 2518.7 - AB 2521.9.
29. At [144].
30. AB 378.
31. AB 59.
32. AB 59.
33. AB 59; AB 71.
34. AB 362.
35. RO v R [2019] NSWCCA 183 at [68] - [73].
36. Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 at [72]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 March 2022