Hoang v The Queen

[2013] VSCA 287

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0033

NHAT HOANG

Appellant

v

THE QUEEN

Respondent

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JUDGES	NEAVE and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	23 September 2013
DATE OF JUDGMENT	14 October 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 287
JUDGMENT APPEALED FROM	DPP v Hoang (Unreported, County Court of Victoria, Judge Hampel, 20 February 2012)

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CRIMINAL LAW – Appeal against sentence – Trafficking in a drug of dependence and dealing with property reasonably suspected of being proceeds of crime – Total effective sentence of 6 years – Non-parole period of 4 years fixed – Fresh evidence of the purity of the drug trafficked – Ibrahim v The Queen [2013] VSCA 227 applied – Whether judge erred in relying on the estimated street value and unknown purity of the drug in assessing the objective gravity of the offending – Wong v The Queen (2001) 207 CLR 584 applied – Whether judge erred in giving no mitigating weight to the appellant’s drug addiction – R v McKee & Brooks (2003) 138 A Crim R 88 considered – Whether sentence manifestly excessive – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Ms G Connelly	Victoria Legal Aid
For the Crown	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

1. I agree with Justice Coghlan that the application should be refused.

COGHLAN JA:

1. The applicant pleaded guilty to the charges set out below and was sentenced accordingly on 20 February 2012 by her Honour Judge Hampel.

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Trafficking a drug of dependence (heroin) (Drugs Poisons and Controlled Substances Act 1981 s.71AC)	15 years	6 years	Base
Summary Offence	Dealing with property reasonably suspected of being the proceeds of crime (Crimes Act 1958 s.195)	2 years	6 months	-
Total Effective Sentence:		6 years’ imprisonment
Non-Parole Period:		4 years
Pre-sentence Detention Declared:		Nil
6AAA Statement:		8 years with non-parole period of 6 years

1. The circumstances of the offending were set out by her Honour in the sentencing remarks,

On 21 May last year at about 8.40 in the evening you were seen by police doing something to the air filter of a car which was pulled over to the side of a road in Braybrook.

On examination the air filter was seen to contain a parcel containing what turned out to be 199 grams of heroin in rock form. The total weight of the parcel, including its packaging, was 213 grams.

The purity of that heroin has not been analysed, but the state it was in, rock form, and the circumstances of its finding, make it likely that it was yet to be pulverised and cut, ready for distribution and street use.

You told the police you thought the value of the heroin was $20,000 and knew its weight to be 200 grams. I am told the informant estimates the street value of the heroin at between $64,000 and $85,000.

As its purity has not been analysed I am unable to make an affirmative finding about its value, but accept that it is likely to be somewhere between the $20,000 you estimated and the $64,000-85,000 estimated by the police.

You were arrested and questioned by the police after the heroin was found. You readily admitted that you were in possession of it and that you were acting as a courier, although you refused to say who engaged you to act as courier or where you were taking it.

You told the police that you were a heroin user and said that you “had to do these things”, namely act as courier in respect of heroin to get the money to pay for your heroin supplies.

When arrested you were searched and the cash, the $2,475, was found on you. You told the police that came from your gambling winnings. Ms Kennedy told me that you maintained that as her instructions. But your failure to adduce any evidence to support that and your plea of guilty to the charge of possession of proceeds of crime make it clear that you acknowledge that to be no more than a lame excuse.[1]

[1]DPP v Hoang (Unreported, County Court of Victoria, Judge Hampel, 20 February 2012) [2]-[9].

1. A notice of application for leave to appeal against sentence was filed by the appellant on 25 March 2013.  Leave was sought on the following grounds:

1. The applicant’s sentence should be reopened and a different sentence passed as the result of fresh evidence not available at the plea about the purity of the drug the applicant possessed.

2.The learned sentencing judge erred in giving no mitigating weight to the fact that the applicant was involved as a courier of heroin to support his own addiction.

3.The sentence of 6 years imposed on the applicant for trafficking heroin was manifestly excessive.

1. Leave was granted by Redlich JA on ground 1 on 21 August 2013 following the ground being conceded by the respondent in their written case.  As a result of conceding ground 1, the respondent did not address grounds 2 and 3.  In those circumstances His Honour left the consideration of the question of leave on those grounds to this Court.

1. Since the filing of the written cases and leave being granted to appeal, this court has since adopted in Ibrahim v The Queen[2] what was said by Redlich JA (with whom Maxwell P agreed) in Kapkidis v The Queen:

In our view, nothing said in Trajkovski and Nguyen detracts from what this Court made clear in Pidoto. There is no place for considering the relative harmfulness of a drug in sentencing an offender for trafficking offences. Where the purity of the amount trafficked is ‘de minimis’ it may be taken into account, but save for such exceptional circumstances, the relative purity of a mixed quantity of a drug of addiction does not bear upon the objective gravity of the offence.[3]

[2][2013] VSCA 227.

[3][2013] VSCA 35, [25].

1. In light of this, counsel for the applicant sought leave to amend ground 1 in the following way:

1. The applicant’s sentence should be reopened and a different sentence passed as the result of fresh evidence not available at the plea about the purity and form of the drug the applicant possessed.

1. Counsel also sought leave to add the following two proposed grounds:

4.The learned sentencing judge erred in taking into account the assumed purity of the drug of dependence in determining the objective gravity of the offence.

5.The learned sentencing judge erred in finding that the value of the drug was greater than $20,000 in circumstances where so much was not conceded by the applicant, was not part of the prosecution opening and was not supported by evidence.

1. Grounds 1, 4 & 5 can only succeed if it be shown that a different sentence should be imposed.  Those grounds are also capable of being particulars of ground 3.

Grounds 1, 4 & 5

1. The fresh evidence in this case was that after the plea and sentence it became known that the purity of the heroin was only 12 per cent and in the form of a powder.  It appeared from discussion on the plea and the sentencing remarks that her Honour thought that the ‘rock’ heroin was likely to be of a high purity. 

1. A further issue also arose on the application as to what the source of the value of the drugs alleged by the prosecution was.  It appears more than likely that the figure of between $65,000 and $80,000 was given to the prosecution by the informant and that there is no statement on the brief as to its value.  On the plea counsel for the appellant did not accept that valuation, stating in the appellant’s record of interview that he believed it was worth around $20,000. 

1. The respondent accepted the statement as to purity and form did constitute fresh evidence[4] but contended that no different sentence should have been imposed. 

   [4]R v Duc Duc Nguyen [2006] VSCA 184, [36] (Redlich JA with whom Maxwell P and Neave JA agreed).

1. It is submitted by the appellant that the purity, together with the incorrect form of the drug and the estimated street value meant that her Honour erred in putting the level of couriering by the appellant at a much higher level than was appropriate by making the finding that it was ‘likely that [the drug] was yet to be pulverised and cut, ready for distribution and street use.’

1. Since the appellant pleaded to the form of the drug being in rock form the finding made by her Honour as to its form is difficult to criticise.  The appellant did not ask for the matter to be delayed to await the analysis or challenge its form at the plea hearing. 

1. It is submitted that because of his addiction and the lack of evidence of enrichment, as the money from the couriering was used to fuel his addiction, a lesser sentence should have been imposed.

1. The respondent submits that even in light of the fresh evidence, a lesser sentence should not have been imposed and the sentence is well within the range.  The task in sentencing a person for trafficking, it is submitted, is not with respect to purity or to the dollar value but as to the quantity of the drug.  Although her Honour referred to a dollar amount in the summary of the offending, she did not rely on a specific amount and therefore did not fall into error.  Further, her Honour did not make a finding that the level of couriering placed the appellant high in the hierarchy.

1. Since R v Pidoto[5] the weight of a drug of dependence has been a significant factor in determining where in the hierarchy a particular transaction will be placed without reference to the type of substance being trafficked.

   [5](2006) 14 VR 269.

1. It would follow that the relevant quantity in this case is 199 grams (the traffickable quantity being 3 grams and the commercial quantity being 500 grams).[6]

   [6]Drugs, Poisons and Controlled Substances Act 1981, Schedule 11, Part 3.

1. As was said in Wong v The Queen:

It must be recognised that not all offenders will know or even suspect how much pure narcotic is to be imported. Apart from the extent to which the pure narcotic is diluted or cut (a matter about which those involved in the importation may know little or nothing), it is by no means uncommon for many of those involved in an importation of narcotics to know nothing at all about what they are dealing with, except that it is a quantity of narcotic.

It follows that there will be many cases in which a sentencing judge will be more concerned to identify the level of the offender's criminality by looking to the state of the offender's knowledge about the importation in which he or she was involved. Often enough, information about the kind and size of reward given or promised to the offender for involvement in the importation will be seen as important in fixing a sentence and distinguishing between offenders.[7]

[7](2001) 207 CLR 584 [68]-[69].

1. The applicant was trafficking not just a few small ‘deals’ of a few grams but was involved in dealing with a 199 gram block of compressed powder containing heroin which he told the police was valued at $20,000.  He had in his possession $2475 which he conceded by his plea of guilty was from the proceeds of crime.  When interviewed by the police he said that he was paid in heroin and money.  The transaction is to be properly regarded as a significant one, with the appellant acting as a professional courier.  The maximum penalty is 15 years.

1. The applicant was 52 at the time of sentence.  He has been addicted to heroin for something like 37 years.  He has a significant criminal history.

1. In 1995 the applicant was sentenced in the County Court to be imprisoned for five years with a non-parole period of three years.  Since his release he has had numerous convictions for trafficking and using and possessing heroin and associated dishonesty offences.  He has been given numerous opportunities by being placed on suspended sentences and community based orders.  He has breached many of the orders.

1. Given the nature of this transaction and the appellant’s history, I do not regard the matters raised in the amendment to ground 1 or proposed grounds 4 and 5 as raising any matters which, if they be errors, would give rise to a different sentence being imposed.  For the reasons set out above, I would grant leave to amend ground 1 but dismiss the ground of appeal.  I would refuse leave to appeal on proposed grounds 4 and 5..

Ground 2 – The appellant’s drug addiction

1. It is submitted by the appellant that her Honour failed to treat the appellant’s drug addiction as a mitigating factor.

1. It is recognised that addiction may be a consideration when sentencing offenders for trafficking in drugs of dependence and other serious crimes.  As Buchanan JA said in R v McKee & Brooks,

The motive for the commission of the crimes was the appellants' need of money with which to buy heroin to feed their addiction. According to the Court of Criminal Appeal in New South Wales it has been "said on countless occasions that addiction to heroin is not to be considered as effective reduction of what would otherwise be an appropriate sentence"². While the existence of an overwhelming physical craving may explain the commission of a crime to obtain money to purchase heroin to still the craving, the courts' refusal to take it into account may be due to the view that the decision to begin to use drugs is said to be voluntary and the commission of crimes to feed an addiction is a likely consequence of that choice. In R v Henry, Spigelman CJ said:

"[S]elf-induced addiction at an age of rational choice establishes moral culpability for the predictable consequences of that choice."

The extent to which a decision to experiment with drugs is freely made, in my view, bears upon the moral culpability of the offender who commits a crime as a consequence of addiction to drugs. Age is relevant to the question, as Spigelman CJ acknowledged. I would add that in the case of adults, despair and low self-regard may also play a significant part in the decision to use drugs and that condition may be the result of social or economic disadvantage, poor education or emotional or physical abuse. An addiction to heroin may also bear upon the question of rehabilitation, where the prospects of success will often depend upon the likelihood of the addiction being successfully treated. In my view, a sentencing judge may have regard to the circumstances which led to an addiction that caused the commission of the offence and to whether the addiction has continued or is being treated in deciding upon a sentence appropriately tailored to the personal circumstances of the offender.[8]

[8](2003) 138 A Crim R 88 [12]-[14].

1. The respondent submits that the addiction was not a matter in mitigation, and it was fortunate for the appellant that it was not regarded as a matter in aggravation.

1. As was stated by her Honour:

As the prosecution pointed out, the nine previous sentences for trafficking have not deterred you and there is sadly no real history of commitment to addressing your addiction since you were charged on this occasion.

That clearly must weigh against or be taken into account in deciding what weight to be given to the advancement of your addiction as the reason for your engagement.[9]

[9]Sentencing remarks [32]-[33].

1. Somebody who has had the continued opportunities to reform such as the appellant has had, cannot, in my view, reasonably expect to have a reduction in sentence on account of his addiction.  It should be noted that the appellant was given the chance to attend Voyage Alcohol and Other Drug Services whilst on bail.  He attended for four sessions and did not attend the remaining five sessions.

1. In any event, the learned sentencing judge did have regard to the whole of the appellant’s background which included his long term addition and contrasted that with his list of prior convictions.  It is almost certain that the appellant has been shown leniency on numerous occasions in the past on account of his addiction.

1. I would refuse leave to appeal on this ground.

Ground 3 – Manifest excess

1. The applicant has not learned from or taken advantage of the opportunities he has been given.  In my view the sentence is within the range available.  I would also refuse leave to appeal on this ground.

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