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Hoang v The Queen

Hoang v The Queen

Case [2018] VSCA 86 9 April 2018

Principal Role in Crime

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0095

QUYEN VAN HOANG	Appellant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 April 2018
DATE OF JUDGMENT:	9 April 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 86
JUDGMENT APPEALED FROM:	DPP (Cth) v Hoang [2017] VCC 399 (Judge Brookes)

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CRIMINAL LAW — Appeal — Sentence — Attempting to possess a commercial quantity of border-controlled drug and trafficking in a large commercial quantity of drug of dependence (cocaine) — Sentenced to ten years’ imprisonment with six year non-parole period — Whether manifestly excessive — Youthful offender — Guilty plea — Appellant had principal role in criminal enterprise — Appeal dismissed — R v Nguyen (2010) 205 A Crim R 106 applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Dr G Boas and Mr D J Carolan	Access Law
For the Respondent	Ms K Breckweg	Commonwealth Director of Public Prosecutions

PRIEST JA
McLEISH JA:

Introduction

Pursuant to leave granted on 12 October 2017,[1] the appellant, aged 23 years,[2] appeals against a total effective sentence of ten years’ imprisonment, with a non-parole period of six years, imposed upon him in the County Court for Commonwealth and State drug offences, upon the sole ground that the sentence is manifestly excessive.[3]
[1]Hoang v The Queen (Unreported, Victorian Supreme Court of Appeal, Priest JA, 12 October 2017).
[2]The appellant’s date of birth is 17 March 1995. He was aged 20 when he committed the relevant offences, and was 22 when sentenced.
[3]Initially, the appellant relied on nine grounds. Three grounds — grounds 1, 2 and 3 — were abandoned at the leave hearing, and leave to appeal was refused on a further five grounds — grounds 4 to 8 inclusive — no election having been made to pursue those grounds. The original grounds were as follows:
1.     The learned judge erroneously treated the applicant as one who had a leading role within the organization in Melbourne of importing and trafficking in cocaine on a very significant scale.
2.     The learned judge erred in directing that the sentence on Charge 1 should commence one year from the sentencing date.
3.     There is manifest error in the sentences of 9 years and 8 years for attempting to possess a large commercial quantity of border-controlled drug, namely cocaine and trafficking in a large commercial quantity of a drug of dependence, namely cocaine respectively. Alternatively, the learned judge failed to provide adequate reasons for imposing these individual sentences.
4.     The applicant suffered double jeopardy in respect of the sentences imposed on him by the Court.
5.     The learned judge erred in giving no weight to the fact that the applicant posed no risk whatsoever to the community by reason, inter alia, that he would be deported from Australia upon completion of his prison sentence.
6.     The substantial disparity in sentence between the applicant (ten years with a minimum non-parole period of six years) and his co-offender [DAU] (four years…

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 The Queen

Details

AGLC: Hoang v The Queen [2018] VSCA 86
Case: [2018] VSCA 86
Decision Date: 9 April 2018

CaseChat Overview and Summary

The appellant, Hoang, was convicted of attempting to possess a commercial quantity of a border-controlled drug and trafficking in a large commercial quantity of a drug of dependence, specifically cocaine. The case was appealed to the court, which was required to determine whether the sentence imposed was manifestly excessive. Hoang was sentenced to ten years’ imprisonment with a non-parole period of six years. Hoang argued that the sentence was manifestly excessive, particularly considering he was a youthful offender and had entered a guilty plea. The court considered these factors but also acknowledged Hoang's principal role in the criminal enterprise. The court applied the principles from R v Nguyen (2010) 205 A Crim R 106, which emphasised the need to consider the totality of the circumstances, including the nature and circumstances of the offence, the offender's role, and the deterrent effect of the sentence. After a thorough examination, the court found that the sentence was not manifestly excessive. The appeal was dismissed, and the original sentence was upheld.

Orders