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Huynh v The Queen [2022] NSWCCA 45

The offender was convicted and sentenced to 1 count of importing a substance, intending to use or believing another person intended to use any of the substance to manufacture a controlled drug, the substance being a border controlled precursor and the quantity imported being a commercial quantity, contrary to ss 11.5(1) and 307.11(1) of the Commonwealth Criminal Code. Original sentence imposed 12 years imprisonment commencing on 1 August 2014 with a non-parole period of 8 years. Offender appealed on grounds that the sentencing judge erred in taking into account relevant facts not proven beyond reasonable doubt (ground 1) and that the sentencing judge did not take into account the offender’s period of pre-sentence custody (ground 2).

Commencement of Federal Sentence: 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 adjust the sentence accordingly. 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. Error has been established and can be corrected by the court without engaging in a re-exercise of the sentencing discretion.

Leave to appeal in respect of ground 1 refused and in respect of ground 2 granted. Appeal against sentence allowed in respect of ground 2. Original sentence quashed. Offender sentenced to 12 years imprisonment commencing on 20 June 2014 and expiring on 19 June 2026 with a non-parole period of 8 years.
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