Criminal law: August 2021

Huynh v R [2021] NSWCCA 148

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 wants 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 section 19B of the Crimes Act 1914.

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 if they have a mental illness or an intellectual disability (Crimes Act 1914 (Cth), s 20BQ). In this case, the Magistrate refused   the 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.