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Hoang v R

Hoang v R

Case [2020] NSWCCA 324 14 December 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hoang v R [2020] NSWCCA 324
Hearing dates: 18 September 2020
Date of orders: 14 December 2020
Decision date: 14 December 2020
Before: Payne JA; Beech-Jones J; Fagan J
Decision:
(1) Time for filing the application for leave to appeal is enlarged so far as necessary to permit the application to proceed.
(2) Leave to appeal granted.
(3) Appeal dismissed.

Catchwords:
CRIMINAL LAW – appeal against sentence – supply prohibited drug – deal with proceeds of crime – participate in criminal group – fresh evidence of health and treatment in custody – applicant 67 year old woman – principle of totality given effect in aggregate sentence imposed – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
Agnew (a pseudonym) v R [2018] NSWCCA 128
Iglesias v R [2006] NSWCCA 261
Khoury v R [2011] NSWCCA 118
R v Bailey (1988) 35 A Crim R 458
R v Munday [1981] 2 NSWLR 177
R v Smith (1987) 44 SASR 587; 27 A Crim R 315
Springer v R [2007] NSWCCA 289; 177 A Crim R 13
Turkmani v R [2014] NSWCCA 186; 244 A Crim R 402

Category: Principal judgment
Parties: Thi Hoa Hoang (applicant)
Regina (respondent)
Representation:
Counsel:
S Buchen SC with E Sullivan (applicant)
G Newton (respondent)
Solicitors:
Korn MacDougall Legal Pty Ltd (applicant)
The Solicitor for the Director of Public Prosecutions (respondent)

File Number(s): 2015/113876
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

2 February 2018

Before:

Buscombe DCJ

File Number(s):

2015/113876

Judgment

THE COURT: The applicant seeks leave to appeal against a sentence passed on her in the District Court by Buscombe DCJ on 2 February 2018. She was sentenced for the following offences upon pleading guilty to each matter:

Between 1 and 4 February 2015, supply a prohibited drug in an amount not less than the large commercial quantity (methyl amphetamine, 1.0946kg), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). Maximum penalty life imprisonment, standard non-parole period 15 years.

Between 25 and 28 November 2014, deal with the proceeds of crime ($200,000) knowing that it was the proceeds of crime, contrary to s 193B(2) of the Crimes Act 1900 (NSW). Maximum penalty 15 years imprisonment, no standard non-parole period.

Between 23 September 2014 and 17 April 2015, participate in a criminal group by directing the activities of the group, knowing that it was a group and that her participation contributed to the occurrence of criminal activity, contrary to s 93T(1A) of the Crimes Act. Maximum penalty 10 years imprisonment, no standard non-parole period.

On count 1 his Honour took into consideration pursuant to s 35 of the Crimes (Sentencing Procedure) Act 1999 (NSW) the following offence on a Form 1: Between 10 and 13 November 2014, supply one ounce of methamphetamine…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hoang v R

Details

AGLC: Hoang v The Queen [2020] NSWCCA 324
Case: [2020] NSWCCA 324
Decision Date: 14 December 2020

CaseChat Overview and Summary

The appeal heard in the High Court was brought by the respondent, the Crown, against a sentence imposed by a lower court on the applicant, Hoang. The applicant was convicted of supplying a prohibited drug, dealing with the proceeds of crime, and participating in a criminal group. Hoang, a 67-year-old woman, argued for a more lenient sentence on the basis of her health and treatment in custody, which she claimed was not fully considered by the sentencing court. The Crown appealed the sentence as manifestly excessive, contending that the lower court had not adequately applied the principle of totality and had failed to consider Hoang's criminal history and the seriousness of her criminal conduct.

The central legal issue before the court was whether the sentence imposed was manifestly excessive, particularly in light of the principle of totality and Hoang's health and treatment in custody. The court had to determine if the aggregate sentence appropriately reflected the totality of Hoang's criminal conduct, taking into account all relevant mitigating and aggravating factors, including her age, health, and the impact of her criminal activity. Additionally, the court examined whether the sentencing judge adequately considered Hoang's health and treatment in custody as mitigating factors and if these factors warranted a reduction in the sentence.

The High Court found that the principle of totality had been given effect in the aggregate sentence imposed by the lower court. The court held that the sentence reflected the totality of Hoang's criminal conduct, considering both mitigating and aggravating factors. The health and treatment in custody were factors that had been considered by the sentencing judge, and while Hoang's age and health were recognised, they did not warrant a significant reduction in the sentence. The court concluded that the aggregate sentence was not manifestly excessive and thus dismissed the Crown's appeal. The court confirmed that the sentence imposed was appropriate and that Hoang's health and treatment in custody had been adequately taken into account.

Orders