Huynh v R [2021] NSWCCA 148

Huynh v R [2021] NSWCCA 148 · Read the judgment on AustLII

Catchwords: District Court appeals – Mental health orders on appeal – Non-conviction orders in Commonwealth matters

The Court of Criminal Appeal (‘CCA’) has held that, in appeals to the District Court, if the original sentence included a conviction and the appellant a mental health diversion, they need to lodge a conviction appeal, not just a sentence appeal – under both Commonwealth and State regimes. A conviction appeal is similarly necessary in Commonwealth matters where the original sentence involved a conviction, and on appeal the appellant wants a Commonwealth non-conviction sentence under Crimes Act 1914 s 19B.

Ms Huynh was charged with Commonwealth offences relating to receiving a financial advantage from a Commonwealth entity. She made an application under Commonwealth legislation which enables the Local Court, when dealing with a Commonwealth offence, to dismiss the charge and discharge the person they have a mental illness or an intellectual disability: Crimes Act 1914 (Cth) s 20BQ. The Magistrate refused that application. Ms Huynh then pleaded guilty and was sentenced.

She appealed her sentence, pursuant to Crimes (Appeal and Review) Act 2001 (NSW) s 11(1). In the District Court she reagitated her application to be diverted under s 20BQ. It seems she sought (in the alternative) to be dealt with under Crimes Act 1914 (Cth) s 19B – which is the Commonwealth equivalent of a s 10 dismissal without conviction. A question arose about whether the District Court had the power to apply either mental health diversion or a Commonwealth non-conviction sentence on an appeal against sentence only.

The parties asked the District Court judge to state a case to the CCA and his Honour did so. The four questions stated boiled down to different permutations of whether the Commonwealth mental health dismissal or the Commonwealth sentencing dismissal power, could be exercised in a sentence appeal or only on a conviction appeal. Although none of the questions explicitly asked whether the NSW State-based mental health legislation was available on an appeal against sentence only, that question was nevertheless dealt with in the judgment (a longstanding question).

The judgment was delivered by Beech-Jones J, with whom Bathurst CJ and N Adams J agreed. Answering each of the various questions turns on detailed statutory interpretation across both Commonwealth and State legislation, laughing in the face of concise summary. The essence of the problem is that the District Court appeal legislation (the Crimes (Appeal and Review) Act) narrowly confines the appeal jurisdiction. An argument was made that the District Court should have all the powers of the Local Court. But the Magistrate had imposed a conviction and, the CCA pointed out, other than in narrowly-defined circumstances it is not a function of the Local Court to set aside its own convictions. The appeal legislation does allow an appeal judge to impose a s 10 dismissal, specifically, where there was originally a conviction. But crucially, in relation to the NSW mental health provisions which allow for diversion without conviction (previously, s 32 of the Mental Health (Forensic Provisions) Act, now s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act), neither the NSW mental health legislation, nor the appeal legislation confers on the Local Court a power to set aside a conviction, and there has not been any amendment to the meaning of ‘varying a sentence’ so as to accommodate a s 32 application (now, s 14). It follows that the power conferred by the former s 32 is only exercisable by the District Court in an appeal against conviction, and not just against sentence (at [33]).

In relation to the Commonwealth equivalent mental health diversion, in s 20BQ of the Crimes Act 1914 (Cth), the NSW appeal legislation similarly does not provide a power to set aside a conviction where an appeal only concerns the sentence. So, again, the diversion power in s 20BQ can only be exercised on appeal if it is against conviction and sentence (at [55]).

Equally, although there is a specific provision which enables the District Court to impose a s 10 dismissal on appeal in State matters, that provision does not extend to the Commonwealth s 19B dismissal power (at [57]). Again, a conviction appeal would be necessary.

In summary: in any matter where an offender has been convicted of a Commonwealth offence in the Local Court and wants a non-conviction outcome (whether by way of mental health dismissal or s 19B), they will need to lodge a conviction appeal. Similarly, if an offender was sentenced for a State offence and wants a mental health dismissal on the appeal, they will need to lodge a conviction appeal. And, in any case where the appellant pleaded guilty in the Local Court that imposes additional leave requirements (because obviously it ought to be unusual to appeal against conviction if you pleaded guilty).

One assumes this will quickly receive the attention of the legislature, but in the meantime, there are sure to be a large number of appeals which are ‘conviction’ appeals in name only.