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:

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

COGHLAN JA:

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

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…

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 [2013] VSCA 287
Case: [2013] VSCA 287
Decision Date: 14 October 2013

CaseChat Overview and Summary

In the matter of Hoang v The Queen, the appellant, Hoang, appealed against his sentence for drug trafficking and dealing with property reasonably suspected of being proceeds of crime. The case was heard in the Court of Appeal. Hoang was found guilty of trafficking in a drug of dependence, specifically methylamphetamine, and dealing with property reasonably suspected of being proceeds of crime. The trial judge imposed a total effective sentence of six years imprisonment with a non-parole period of four years.

The primary legal issues before the court were whether the trial judge erred in relying on the estimated street value and unknown purity of the drug when assessing the objective gravity of the offending and whether the judge erred in giving no mitigating weight to Hoang’s drug addiction. The court also considered whether the sentence was manifestly excessive. The court examined the principles set out in Ibrahim v The Queen, Wong v The Queen and R v McKee & Brooks in determining these issues.

The court held that the trial judge did not err in assessing the objective gravity of the offending by relying on the estimated street value of the drug, as the purity of the drug was not known at the time of sentencing. The court further found that the trial judge did not err in giving no mitigating weight to Hoang’s drug addiction, as the primary focus of the sentencing process was on the gravity of the offending and the need for general deterrence. The court concluded that the sentence was not manifestly excessive and dismissed the appeal. The appellant’s total effective sentence of six years imprisonment with a non-parole period of four years was upheld.

Orders