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Huynh v The Queen [2021] NSWCCA 148

The offender was sentenced following pleas of guilty to 4 counts of receiving financial advantage from a Commonwealth entity contrary to s 135.2(1) of the Criminal Code. The Magistrate, without passing sentence, released the offender on a conditional release order under s 20(1)(a) of the Crimes Act 1914 (Cth). The offender appealed against both conviction and sentence to the District Court of New South Wales under s 11(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act). At the hearing of the appeal in the District Court, an issue arose as to whether the District Court of New South Wales could exercise the power conferred by ss 20BQ or 19B of the Crimes Act 1914 (Cth) to dismiss the charges and not enter convictions on an appeal against sentence or conviction under s 11(1) of the CAR Act. Judge Hanley SC submitted questions for the determination of the Court of Criminal Appeal.

The Court of Criminal Appeal held that on an appeal against sentence pursuant to s 11(1) of the CAR Act, the District Court of New South Wales does not have the power to set aside a conviction imposed by the Local Court, dismiss the charge and discharge the offender pursuant to s 20BQ(1). It further held that on an appeal against sentence pursuant to s 11(1) of the CAR Act, the District Court does not have the power to set aside a conviction imposed by the Local Court and make orders pursuant to s 19B.  

Diversionary orders for offenders with mental illness: Section 20BQ does not vest jurisdiction in any court to hear proceedings in which the relevant person is charged. Rather, the provision assumes that the court dealing with the relevant offender is otherwise possessed of jurisdiction in respect of that charge. For the power conferred under s 20BQ to be exercised on appeal under the CAR Act, the District Court must be able to set aside the conviction imposed on the appellant. There is no power conferred by the CAR Act on the District Court to set aside a conviction where the appeal only concerns a sentence. On a sentence appeal in respect of a federal offence, no power to set aside a conviction is conferred on the District Court that can be picked up and applied by either or both s 68(1) and s 79(1) of the Judiciary Act 1903 (Cth).  

Discharge without proceeding to conviction: Section 19B does not vest jurisdiction in any court to hear proceedings in which the relevant person is charged. Rather, the provision assumes that the court dealing with the relevant offender is otherwise possessed of jurisdiction in respect of that charge. In relation to s 19B, the District Court may only exercise the power conferred by s 19B on a sentence appeal if the Court was able to exercise some power to set aside the conviction that could be picked up and applied by either s 68(1) or s 79(1) of the Judiciary Act 1903 (Cth). Section 3(3A) of the CAR Act does not supply a source of power, as it is expressed to only operate in respect of an order made under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and is not capable of being picked up and applied to s 19B.  
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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