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R v Hoang

R v Hoang

Case [2015] ACTSC 138 29 May 2015

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Hoang
Citation:	[2015] ACTSC 138
Hearing Date(s):	24 April 2015
DecisionDate:	29 May 2015
Before:	Refshauge J
Decision:	1. Nhan Van Hoang be convicted of trafficking in a controlled drug other than cannabis, namely heroin. 2. Nhan Van Hoang be sentenced to imprisonment for two years and one month from 17 May 2015 to take into account the 12 days of pre-sentence custody 3. A non-parole period of eight months be set, to commence on 17 May 2015 and to end on 16 January 2016. 4. It be recommend that the Sentence Administration Board, if they grant Nhan Van Hoang parole, give consideration to requiring him to undertake gambling counselling through an agency such as Relationships Australia, though that will require the use of an interpreter.
Category:	Sentence
Catchwords:	CRIMINAL LAW – Judgement and Punishment – Trafficking in a controlled drug other than cannabis – Sentencing – Gambling addiction – Language barriers – General deterrence
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), ss 7, 33(1) Criminal Code 2002 (ACT), s 603(7) Evidence Act 2011 (ACT), s 138
Cases Cited:	Bui v The Queen [2015] ACTCA 5 Lawrence v The Queen [2007] ACTCA 10 Muldrock v The Queen (2011) 244 CLR 120 R v Bennett aka Fleming (Unreported, Supreme Court of the Australian Capital Territory, Gray J, SCC No. 406 of 2009, 13 April 2011) R v De Simoni (1981) 147 CLR 383 R v Foley [2001] ACTSC 109 R v Grossi (2008) 23 VR 500 R v Hagen [2014] ACTSC 129 R v Hoang (Unreported, Australian Capital Territory Supreme Court, Miles CJ, SCC No. 17 of 2000, 9 May 2000) R v Hoang [2015] ACTSC 17 R v Klobucar (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, SCC No. 186 of 2010, 19 September 2013) R v Nguyen (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, SCC No. 220A of 2009, 5 April 2012) R v Olbrich (1999) 199 CLR 270 R v Silkeci (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, SCC No. 19 of 2008, 16 February 2011) R v Stott (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, SCC No. 214B of 2009, 24 October 2011) R v Trong Ruyen Bui [2014] ACTSC 182 R v Van Gieng Bui (Unreported, Supreme Court of the Australian Capital Territory, Burns J, SCC No. 265 of 2011, 5 December 2011) R v Verdins (2007) 16 VR 269 R v West [2015] ACTSC 132
Texts Cited:	American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Publishing, Washington DC, 2013) 5^th ed
Parties:	The Queen (Crown) Nhan Van Hoang (Accused)
Representation:	Counsel Mr M Reardon (Crown) Mr K Archer (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Lawyer (Accused)
File Number(s):	SCC 22 of 2014

REFSHAUGE J:

As a result of undercover operations conducted by the Australian Federal Police in the Queanbeyan and ACT areas and…

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 R v Hoang

Details

AGLC: R v Hoang [2015] ACTSC 138
Case: [2015] ACTSC 138
Decision Date: 29 May 2015

CaseChat Overview and Summary

The respondent, Nhan Van Hoang, was convicted of trafficking in a controlled drug other than cannabis, specifically heroin. The matter was heard and determined by the Magistrates' Court of Victoria. The principal issue before the court was the appropriate sentence for the respondent, taking into account various mitigating factors, including the respondent's gambling addiction and language barriers.

The court found that Hoang's involvement in drug trafficking was driven by his addiction to gambling, which led him to seek funds to cover his debts. The court acknowledged the respondent's limited English proficiency, which further complicated his ability to navigate the legal system and access support services. The court also considered the need for general deterrence in sentencing decisions. Ultimately, the court determined that a custodial sentence was necessary to address the seriousness of the offence and to deter others from engaging in similar criminal conduct.

The court sentenced Hoang to imprisonment for two years and one month, with a non-parole period of eight months. The sentence was to commence on 17 May 2015, taking into account the 12 days of pre-sentence custody. The court recommended that if parole is granted, the Sentence Administration Board should consider requiring Hoang to undertake gambling counselling through an agency such as Relationships Australia, with the use of an interpreter if necessary. This recommendation aimed to address the underlying issues that contributed to Hoang's criminal behaviour and to facilitate his rehabilitation.

Orders

Orders of the court

1. Nhan Van Hoang be convicted of trafficking in a controlled drug other than cannabis, namely heroin.

2. Nhan Van Hoang be sentenced to imprisonment for two years and one month from 17 May 2015 to take into account the 12 days of pre-sentence custody

3. A non-parole period of eight months be set, to commence on 17 May 2015 and to end on 16 January 2016.

4. It be recommend that the Sentence Administration Board, if they grant Nhan Van Hoang parole, give consideration to requiring him to undertake gambling counselling through an agency such as Relationships Australia, though that will require the use of an interpreter.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Hoang [2015] ACTSC 138

Most Recent Citation

R v Toumo'ua; R v Schaaf [2016] ACTSC 163

Cases citing this decision · 10 of 10 shown

Director of Public Prosecutions v Kayvanshokoohi
[2024] ACTSC 386

…CTSC 64 R v De Leeuw [2015] NSWCCA 183 R v Forrest (No 2) [2017] ACTSC 83 R v Goodge [2019] ACTSC 297 R v Guode [2020] HCA 8; 267 CLR 141 R v Hoang [2015] ACTSC 138 R v Jarrold [2010] NSWCCA 69 R v Jones [2004] VSCA 68 R v Kilic [2016] HCA 48; 259 CLR 256 R v Kirkwood [2022] ACTSC 148 R v Law [2021] ACTSC 351 R v M…
Director of Public Prosecutions v Mapiou
[2024] ACTSC 7

…SC 408 Fleury v DPP [2023] ACTCA 46 R v Antonovic (No 3) [2021] ACTSC 338 R v Bower (No 2) [2022] ACTSC 388 R v Chandler [1999] NSWDRGC 6 R v Hoang [2015] ACTSC 138 R v Kelly [2021] ACTSC 143; 16 ACTLR 81 R v McHughes (No 3) [2021 ACTSC 344 R v McHughes [2021] ACTSC 92 R v Smith [2022] ACTSC 288 R v Tonna (No 2) [2…
R v Williams
[2022] ACTSC 72 Para 1

…egard to the trafficking offence, the maximum penalty of 10 years’ imprisonment indicates the relatively high seriousness of the offence: R v Hoang [2015] ACTSC 138 at [34] ( R v Hoang ), applying Muldrock. Relevant factors were discussed by the Court of Appeal in Bui v The Queen [2015] ACTCA 5 at [41] and R v Zdra…
R v Lou (No 2)
[2017] ACTSC 266 Para 1

…Many cases, including R v Hoang [2015] ACTSC 138, R v Phay [2015] ACTSC 238 and R v Truong [2015] ACTSC 244, have emphasised the attitude that courts should take to trafficking offences.…
R v Bui
[2017] ACTSC 262

…R v Hoang [2015] ACTSC 138 R v King [2017] ACTSC 119 R v Le Clair ; R v Yeboah [2016] ACTSC 126 R v Slater [2016] ACTSC 198 R v Visser [2016] ACTSC 261…
R v Keir
[2017] ACTSC 131 Para 1

…I have paid particular regard to Bui v The Queen [2015] ACTCA 5 ( Bui ), R v Hoang [2015] ACTSC 138, R v Phay [2015] ACTSC 238, Lawrence v The Queen [2007] ACTCA 10; 226 FLR 163 (Lawrence) and R v Truong [2015] ACTSC 244.…
Zdravkovic v The Queen
[2016] ACTCA 53 Para 1

…appellant referred to the sentences for offences against s 603(7) of the Criminal Code that were imposed in R v Truong [2015] ACTSC 244 and R v Hoang [2015] ACTSC 138. Both were relied upon as examples of more serious conduct to which a maximum penalty of 10 years’ imprisonment applied, but where the penalty that w…
R v Visser
[2016] ACTSC 261 Para 1

…The Court was referred to a number of cases, including: R v Lee [2015] ACTSC 415; R v Hoang [2015] ACTSC 138; R v Hasani [2015] ACTSC 161; Bugmy v The Queen (2013) 249 CLR 571; and Bui v The Queen [2015] ACTCA 5. The Court was also referred to the ACT Sentencing Database statistics for offences of this type.…
R v Hoang
[2016] ACTSC 183 Para 1

…regrettably common and there are a number of authorities dealing with sentencing of comparable offenders. I have paid particular regard to R v Hoang [2015] ACTSC 138, R v Phay [2015] ACTSC 238, and R v Truong [2015] ACTSC 244.…
R v Toumo'ua; R v Schaaf
[2016] ACTSC 163

…R v Close [2013] ACTSC, Higgins CJ, 12 August 2013 R v Cousins [2012] ACTSC, Higgins CJ, 26 March 2012 R v Hoang [2015] ACTSC 138 R v Jansen [2005] ACTCA 20 R v Jansen [2004] ACTSC, Connolly J, 17 December 2004 R v Luong, Nguyen and Cao [2005] VSCA 94 R v Reid [2016] ACTSC 24 R v Wheeler [2013] ACTSC, Higgins CJ, 2…

View all 10 citing cases →

Cases cited in this decision · 13 of 13 shown

R v West
[2015] ACTSC 134 Para 1

…ambling addiction available in the AMC, though I am aware that there are some in the community, such as through Relationships Australia. See R v West [2015] ACTSC 134.…
R v Peadon
[2015] ACTSC 132

…(Unreported, Supreme Court of the Australian Capital Territory, Burns J, SCC No. 265 of 2011, 5 December 2011) R v Verdins (2007) 16 VR 269 R v West [2015] ACTSC 132…
Bui v The Queen
[2015] ACTCA 5 Para 1

…In Bui v The Queen [2015] ACTCA 5, the Court of Appeal has identified some principles concerning the sentencing of drug offenders, which include the role of an accused, the weight of the amount of drug and the motivation for the offence.…
R v Hoang
[2015] ACTSC 17 Para 1

…t for the exclusion of evidence obtained as a result of the undercover operation. On 13 February 2015, Penfold J dismissed the application: R v Hoang [2015] ACTSC 17.…
R v Bui
[2014] ACTSC 182 Para 1

…The final decision to which I had regard was R v Trong Ruyen Bui [2014] ACTSC 182. The Court of Appeal dismissed an appeal against sentence by Mr Bui. Mr Bui was convicted on his plea of guilty to two counts, one of trafficking in heroin and one of trafficking in methamphetamine. His plea was a late plea entered on…
R v Hagen
[2014] ACTSC 129 Para 1

…In R v Hagen [2014] ACTSC 129, Mr Hagen was sentenced on his plea of guilty to trafficking in 12.12 grams of methylamphetamine. He had a very bad record including many prior offences of trafficking. There was no express finding but implicitly the motive for the offence was for commercial purposes. He was sentenced…
Muldrock v The Queen
[2011] HCA 39 Para 1

…offence of trafficking in illicit drugs is a serious matter. The maximum penalty, set out above (at [6]), is, as pointed out in Muldrock v The Queen (2011) 244 CLR 120 at 133; [31], an indication of the relative seriousness of the offence. In Lawrence v The Queen [2007] ACTCA 10, at [6], the Court of Appeal approved…
R v Grossi
[2008] VSCA 51 Para 1

…As with drug addiction, gambling addiction is not, by itself, a mitigating factor relevant to sentencing. See R v Grossi (2008) 23 VR 500 at 513-8; [47]-[57]. That approach is one that has been expressed affirmed in this Territory. See, indeed, what Miles CJ said in R v Hoang at p 3, namely:…
R v Verdins
[2007] VSCA 102 Para 1

…, it was also pointed out that the interaction of a depression with gambling may warrant some moderation under the principles set out in R v Verdins (2007) 16 VR 269 at 276; [32].…
Lawrence v The Queen
[2007] ACTCA 10 Para 1

…ointed out in Muldrock v The Queen (2011) 244 CLR 120 at 133; [31], an indication of the relative seriousness of the offence. In Lawrence v The Queen [2007] ACTCA 10, at [6], the Court of Appeal approved the comments of the sentencing judge there who concluded that:…
R v Foley
[2001] ACTSC 109 Para 1

…See also R v Foley [2001] ACTSC 109 at [34].…
R v Olbrich
[1999] HCA 54 Para 1

…evidence in the statement of facts, I should find that the transaction was an isolated incident and that this was a mitigating factor. In R v Olbrich (1999) 199 CLR 270 at 281; [27], it was held that facts adverse to an accused’s interests in sentencing must be established beyond reasonable doubt but facts in mitigat…
R v De Simoni
[1981] HCA 31 Para 1

…nsaction. I cannot find, however, what other transactions there were in which he was involved and, indeed, accepting what was said in R v De Simoni (1981) 147 CLR 383, he cannot be punished for other offences with which he has not been charged particularly, in this case, those for which I do not have relevant details…

Legislation cited in this decision · 2

Crimes (Sentencing) Act 2005 (ACT)
33(1), 7 3 mentions (from Para 1)
Evidence Act 2011 (ACT)
138 2 mentions (from Para 1)