R v Hoang

[2006] NSWDC 185

CITATION:	R v Hoang [2006] NSWDC 185
HEARING DATE(S):	02/11/06
JUDGMENT DATE:	10 November 2006
JURISDICTION:	Criminal
JUDGMENT OF:	Norrish QC DCJ
DECISION:	See para 42.
CATCHWORDS:	Criminal Law - Sentencing - Import heroin.
LEGISLATION CITED:	Criminal Code Act 1995 Crimes Act 1914 (Cth)
CASES CITED:	Regina v Olbrich (1999) 199 CLR 270 Siganto v Regina (1998) 194 CLR 656 Cameron v Regina (2002) 1987 ALR 65 R v Thomson & Houlton (2000) 49 NSWLR 383 Markarian v Regina (2005) 79 ALJR 1048 R v Sharma (2002) 54 NSWLR 300 R v Bernier (1998) 102 A Crim R 44 Wong & Leung v The Queen [1999] NSWCCA 420 R v Studenikin (2004) 60 NSWLR 1 R v Mas Ravadavia (2004) 61 NSWLR 63
PARTIES:	Regina Thanh Hung Hoang
FILE NUMBER(S):	06/11/0611
COUNSEL:	Mr Ozen - Offender
SOLICITORS:	Mr Farah - Commonwealth DPP - Crown Ms Tran - Offender

SENTENCE

1 HIS HONOUR: The offender, Thanh Hung Hoang, appears today for sentence in relation to an offence that he committed on 10 July 2006, contrary to s 307.2 Criminal Code Act 1995. The offence that he committed was importing a marketable quantity of border controlled drug and the particulars of that offence are that he did import a substance, namely heroin, and the quantity imported being a marketable quantity, namely 86.4 grams, was contrary to s 307.2(1) Criminal Code (Cth). The maximum penalty for this offence is imprisonment for twenty five years or a fine of $550,000, or both. A marketable quantity of heroin is two grams, a commercial quantity is 1.5 kilograms.

2 The offender has been in custody since his arrest on 10 July 2006 and the sentences that I foreshadowed will date from that date.

3 The facts in relation to the matter are set out in a statement of facts which I shall briefly summarise. Before I deal with the facts as stated, however, in the facts sheets, as it is described, in my view it is important in this matter to deal with some aspects of the background of the offender, as they inform the circumstances of the commission of the offence. As I understand the matter the offender, who was born on 29 August 1980, was born in Vietnam. He came to this country in 2002 with his mother and his then step-father. His mother and father separated in the mid 1990s and his mother remarried in about 1997 or 1998. It was the wish of his step-father that the family migrate to Australia. The offender was in a relationship, or at least had a romantic attachment to a young woman in Vietnam and was unhappy about coming to this country, but did so at the request of his mother. He had lived in Australia off and on for a period of approximately four years before his arrest in relation to this matter. According to the statement of facts the offender at the time of his arrest was an Australian citizen and it is revealed in the fact sheet that between 22 December 2003 and the present he had travelled to and from Vietnam on eight occasions. I will deal with those circumstances later.

4 It was thus the case that the offender on 10 July 2006 was returning from Vietnam having departed for Vietnam from Sydney on 5 June 2006. He filled in the relevant forms that are required on entry to Australia and ticked the inbound passenger card in the box marked “No” for the question asking him if he had brought in illicit drugs to this country. He was spoken to by a Customs Officer and asked a number of questions about the purposes of his trips, mobile phones he had in his possession, and other matters. The details of that conversation conducted in English, apparently, are set out in the statement of facts.

5 The offender at the time of coming to the Customs checkout, so to speak, and at the time of the questioning, was carrying a rolled up blanket, inside a clear wrapped package. The item was subject to xray examination and it appeared that inside the blanket was a rolled up jacket containing packets of an unknown substance. Subsequently it was discovered that there were four packets of what ultimately was found to be white powder containing heroin, within the white jacket.

6 The offender was subsequently subjected to a frisk search and nothing further was found. Australian Federal police officers were notified, the offender was spoken to at the airport but declined to participate in a formal recorded interview, and was searched again, and then was taken to Mascot Police Station, which is an establishment run by the New South Wales Police Service, to be charged in relation to the white powder substance that was found inside the jacket. He was told at the police station that he was going to be subject of strip search. He sought in an inadequate way to resist that search complaining of being cold, and other matters, but clearly his reluctance to be strip searched, putting aside matters of modesty, was governed by the fact that he had hidden within his underpants (he was wearing two pairs of underpants at the time) further packages of white substance which subsequently were found to contain heroin. In fact three such packages were secreted, as I understand it, sandwiched between the first and second pair of underpants; the packages consisted of what appeared to be condoms filled with a quantity of compressed white powder. The Australian Federal Police of course were notified and the various packages were ultimately the subject of analysis; four plastic packets removed from the offender’s jacket were found to have a combined gross weight of 66.5 grams, the three packages found in his underwear were found to have a combined gross weight of 143.1 grams, giving a total gross weight of 209.6 grams. The average purity of the heroin located within the powder was approximately 39.5 per cent, and the total weight of pure heroin was 86.4 grams. The street value of the heroin is estimated at between $72,000 and $216,000, I assume depending upon price fluctuations and of course the extent to which the heroin is cut, or broken down. It is thought that, depending upon the purity, the amount of heroin in his possession varied between just over 1000 and just over 3000 “street deals”. The wholesale value of the heroin seizure was $42,315 calculated on the figure of $10,000 per ounce for heroin of this quality in New South Wales in March 2006.

7 The offender at the time of the commission of this offence had no prior criminal convictions. In respect of his background, other than the outline that I have given before, whilst in Australia the offender has undertaken some work as a waiter and also done welding work, working, as I understand it, as a contract worker having learnt the trade of welding from his father. He has apparently had periods of unemployment and of course there are the various trips to Vietnam, to which I made reference, which have obviously interrupted the opportunity for the offender to work in Australia. There is no evidence before me whilst in Victoria that the offender was engaged in any employment, although that is possible.

8 With regard to the various trips to Vietnam, I note that he first went back to Vietnam as I understand it in late December 2003, returning on 22 February 2004. There was another trip for approximately a month in later 2004, a trip of approximately a month in early 2005, and then a trip to Vietnam where he stayed in Vietnam for two months in April, June 2005, and a later trip of approximately three months between September and December 2005. Apparently he came back to Sydney on 4 December 2005 and returned five days later to Vietnam and remained in Vietnam for approximately three months before returning to Australia. He made a trip to Vietnam between April and May of 2006 and ultimately the trip that led to his arrest on 10 June 2006, which involved a stay of just over one month in Vietnam.

9 The evidence available to me reveals that the offender had been, whilst in Australia, a heroin user, smoking heroin, and paying up to seventy dollars per day for heroin that he used. In the period of time that he was in Australia he lived largely with his mother, although apparently there was some disruption between the mother and the step-father. At one stage the mother and step-father, from what I understood of the material available to me, separated. This left the offender with family members in accommodation in Marrickville where the offender’s family first moved when they settled in Australia. The evidence before me reveals that at the time of his arrest in relation to the current matter the offender had debts with financial institutions totalling in excess of $20,000. The offender in his evidence before me also had significant debts that were owed to members of his family from whom he had borrowed money for, amongst other reasons, travel costs to Vietnam. Of course, the number of visits in that three year period that I have outlined before his arrest, raised suspicions about his conduct in so far as those suspicions might inform his role in this particular offence.

10 There is, it should be fairly said however, no evidence of a prior importation of heroin. Ultimately when one considers aspects relating to his family connections in Vietnam, his home-sickness for Vietnam having come to Australia at a relatively mature age, twenty two, and the presence of his now wife in Vietnam, these matters provide to my mind reasonable explanations for his travel that do not necessarily reflect upon the circumstances of the commission of this offence.

11 In evidence he stated that when he left Australia to travel to Vietnam in early June 2006 he had no intention of bringing heroin or other prohibited drugs back to Australia. He states that he was approached by a man to bring the heroin back into the country during his last visit. He gave evidence of the fact that whilst in Australia he smoked heroin, in Vietnam he did not use heroin out of deference to his partner, but that on this last visit to Vietnam he started smoking heroin, or using heroin and it was in these circumstances that he was introduced to the man, Bac, as he is named in the papers, who the offender claims recruited him for the importation of heroin into the country.

12 It is quite clear when one examines it that the offender gave some unsatisfactory answers relating to his personal finances, but on any view of it, bearing in mind the facts of the matter regarding his personal finances are difficult to ascertain, he clearly was significantly in debt at the time of his arrest. This, to my mind of course, raised the issue of whether this in itself provided sufficient motivation, in addition to any need for heroin, for him to principally arrange the importation of the heroin found in his possession, in other words, to organise to bring heroin into the country so that he himself could sell it to distributors or other persons, to obtain the profit from the importation. He was unable to tell the Court, or refused to tell the Court, the cost of heroin in Vietnam. I found this evidence scarcely believable, given such matters as the natural inquisitiveness one might have thought to compare the cost for him of heroin in Australia to that of purchasing heroin and acquiring it in Vietnam. One might have thought he would have had a natural inquisitiveness as to what benefits were to be derived, given his knowledge of the cost of heroin in Australia, by importing heroin from Vietnam. Although there is no evidence on this particular matter one would have thought as a matter of commonsense that there are substantial profits for those who bring heroin from Vietnam and other places in south-east Asia into Australia. One would have expected for a range of reasons that the cost of the drug in Vietnam, for example, would be considerably less than in Australia where the market is much more appealing. Of course the country of origin of these drugs is much closer, of course, to the place of manufacture. Even on the offender’s version that he was to be paid $11,000 for bringing the drug into the country. It is clear that there is a significantly greater value for heroin in Australia than in Vietnam. This is to my mind self evident. One would expect that for those who were to profit from this importation if the offender was telling the truth about what he was to receive, the profit for them would be much greater than what he was to be paid.

13 The Crown’s position is that he was a principal in his own right and it submitted on the evidence that the offender has failed to discharge the obligation upon him on the balance of probabilities to establish that he was relevantly, to use a phrase, “a courier”, assuming that such a classification serves any purpose for sentencing purposes.

14 There are, as I have said, some unsatisfactory aspects of the offender’s evidence turning upon his financing of the trips to Vietnam. However, bearing in mind there is no evidence of him previously being involved in the importation of heroin, the evidence ultimately reveals the simple fact that the offender was in dire financial difficulty, and this provided a motivation for his involvement. He believed that being paid for this importation would alleviate at least some of his financial woes. He also said he was a regular user of heroin and he thought that the might be able to get access to some of the heroin he brought into the country, although I doubt very much, given its great value, that this would have been so. Eleven thousand dollars, to my mind, would have been on the basis of his own version, sufficient benefit for him for his role. The sporadic use of the drug by the offender, both in Australia and in Vietnam reveals to me that whilst the offender may have had some dependence on heroin from time to time it could not reasonably be concluded that he was addicted to it.

15 The report of Dr Gilandos, the psychologist who examined the offender does provide some insight, however, into his account of sporadic use of heroin. It would appear, both having regard to the evidence of the offender in his affidavit and orally before me, and in the history he gave Dr Gilandos, that the offender felt some isolation in Australia, given the fact that he had grown up in Vietnam and was most unhappy whilst here and felt particularly isolated being separated from a young woman with whom he was romantically involved and who he later married in late 2005 in Vietnam. It seems to me that this feeling of isolation may have provided some reason for him to turn to the use of heroin to relieve his despondency or anxiety; his claim that he did not use heroin in Vietnam except on the last occasion he was there, may be supported by the fact that whilst in Vietnam he would appear to have been more settled in a psychological or emotional sense, and thus less tempted to use heroin to assuage his feelings of sadness or depression. The offender further claimed that one of his reasons for agreeing to bring the heroin into the country was because of some fear of harm that might be caused to family members, particularly his wife in Vietnam, or other members of his family. This claim of the offender I do not accept, and I have taken into account the rejection of this claim in my assessment of the offender’s credibility generally, and the offender’s description of his role in this matter.

16 The facts of the matter are, as revealed in the account given to Dr Gilandos, that the offender became involved in this matter, whatever be his role, because he was desperate for money and perhaps because he yielded to temptation, to use his words.

17 Taking into account all the evidence and all that has been put very skilfully by the learned Crown Prosecutor and Mr Ozon for the offender, taking into account of course the reservations I have about some aspects of the evidence of the offender, I have concluded ultimately that whilst clearly the offender was the importer of the drugs I am satisfied on the balance of probabilities that the offender did so at the behest of others for personal profit. If this is to mark him as a courier, so be it, but I think the reality is that the offender has established a role as I have described it in my own words. Whilst his significant debt to family members and financial institutions was a powerful motivation for him to conceive a plan to bring heroin in for himself, to sell to others, bearing in mind I am unable to determine precisely what the heroin would have cost in Vietnam, bearing in mind there is no evidence that the offender had the financial means to acquire the heroin for the importation, bearing in mind that I doubt very much that the offender would have been able to acquire this heroin in Vietnam on credit, particularly given the risks of detection and the inability of the offender to repay any debt in Vietnam if detected, it seems, taking into account the offender’s own version of events, that the offender undertook this task in circumstances where it was ultimately financed by other persons. I note also that should he have been detected, there was an inability of persons in Vietnam, to whom he may have been in debt if he had purchased the heroin on credit, to enforce the debt whilst he was in Australia.

18 I have also taken into account in the scheme of things that given the wholesale cost of the heroin, the claimed fee for which he was prepared to perform this task is not an absurdly low fee or one which is not commensurate with the cost of such a service, particularly bearing in mind some evidence in other cases about these matters, some of which have been referred to me.

19 Of course I have also considered the possibility that the offender was simply partners with a number of people, or at least one other person in this importation. However this conclusion if it was to be reached would be a matter of filling voids in the evidence with speculation, which is of course a highly undesirable process in fact finding in any situation and particularly in sentencing.

20 In relation to this particular matter as the Crown has properly pointed out I am required to have regard to matters set out in Part 1B Crimes Act 1914, particularly ss 16A Crimes Act. I note, of course, what’s been said about that provision in a number of authorities including those authorities cited by the Crown in the written submissions. I am required under Commonwealth law to impose a sentence which is of a severity appropriate in all the circumstances of the case. I am required to take into account the matters that are set out in s16A(2) that are relevant and known to the Court. As to the nature and circumstances of the offence, the matter described in s 16A(2)(a) I have set out earlier the facts of the case and the nature and circumstances of the offence. In reaching the conclusions I have I have taken into account what has been said about this matter in Regina v Olbrich (1999) 199 CLR 270, and I have also noted what has been said on a number of occasions by the Court of Criminal Appeal relating to persons who are performing the role of the offender, not receiving any particular leniency for their role short of being a principal. Because, as has been pointed out, without people such as this offender prepared to take these risks the trade in narcotics would not exist. I have taken into account what the Crown has said about the matter.

21 In relation to the matter there are no other offences to be taken into account, nor does the offence form part of a course of conduct such as a series of criminal acts of a same or similar character. There is no relevant victim, nor fortunately was there any injury, loss or damage resulting from the offence because of the fine action of the Australian Customs Service in detecting the offender. It must be fairly said, however, about the offender that when one examines the detail of the conversations set out in the statement of facts, the offender clearly was a person under suspicion given the fact that the Customs Service would have known before or at the time of his entry into Australia that he had made a large number of trips to Vietnam, which of itself, would have aroused reasonable concerns in all the circumstances.

22 In relation to the matter the offender has expressed regret for his involvement in the offence, but one feels in reality such contrition has as has been expressed is more arising out of the fact that he was detected, rather than a deep concern for his conduct. That having been said I do note his expression of contrition in this Court and I also note what has been said to Dr Gilandos about his regret for his involvement in the matter. The offender in speaking to the Probation and Parole Service in relation to the matter gave some conflicting accounts, although to be fair, one such interview occurred in circumstances where he did not have the benefit of an interpreter. Such contrition as is evident is a relatively minor matter in this sentencing exercise.

23 In respect of the plea of guilty I note the fact that there is a plea of guilty. I note what has been said about the role of the plea of guilty in sentencing, particularly under Commonwealth law and I note, of course, what the High Court has said about this aspect of the matter in the two authorities cited by the Crown of Siganto v Regina (1998) 194 CLR 656, and of course Cameron v Regina (2002) 1987 ALR 65. Although, from memory, as I have noted the extracts in the Crown’s submissions, Cameron was a decision from the West Australian Court of Criminal Appeal in respect of matters arising under West Australian law. I accept, for the purposes of sentencing, that the plea does itself represent some evidence of remorse and acceptance of responsibility by the offender and a willingness by the offender to facilitate the course of justice, bearing in mind the plea of guilty was entered at the first reasonable opportunity.

24 In relation to the issue of the utilitarian benefit of the plea of guilty I note what the Crown has said about this matter. In New South Wales the guideline judgment of Thomson and Houlton (2000) 49 NSWLR 383, identifies a range of discount that may be given as a discrete discount to recognise the utilitarian benefit of the plea of guilty. I note of course that Markarian v Regina, decided in May of 2005, criticised discrete discounts for particular aspects of sentencing and promoted the concept of instinctive synthesis. However, as I understand the matter, it does not in its terms prohibit recognition of a discrete discount for cooperation, for example, both past and future, nor for a discount for the utilitarian benefit of the plea of guilty. There is a body of authority of the New South Wales Court of Criminal Appeal subsequent to Thomson and Houlton and of course the decision of Sharma decided in 2002, that it is proper, or appropriate, or within legitimate sentencing discretion, to recognise a discrete discount for the utilitarian benefit of the plea of guilty in Commonwealth sentencing. In fact I note in passing that at least one of the comparative sentences raised by the Crown in its very helpful written submissions involved an exercise where the Court of Criminal Appeal in dealing with a matter for sentencing under Commonwealth law, recognised a discount for the utilitarian benefit of the plea of guilty.

25 Be that as it may, I do not propose to specifically identify a fixed discount, but in the context of the decision of Thomson and Houlton, bearing in mind the plea of guilty was entered on 30 August 2006 which is a month and twenty days after his arrest, and the fact that the Crown accepts that the plea was entered at the first reasonable opportunity, the offender is entitled to recognition to the full extent of the utilitarian benefit of the plea of guilty in this particular case.

26 I note the offender’s lack of cooperation with the law enforcement agencies at the time of his apprehension, but that is a matter that does not aggravate the criminality in this particular matter. I note I must give full effect to the deterrent effect of the sentence, particularly for crimes of this type, to discourage both this offender and others from committing like offences, and of course these matters are well enshrined in early decisions of superior courts. I also need to ensure the offender is adequately punished for this offence.

27 With regard to his character, antecedents, age, means, physical and mental condition, I have already noted he did not have prior criminal convictions, and certain aspects of his background. Dr Gilandos undertook psychological testing of him and recorded some history related to his health. The offender, although twenty six years of age, is, to quote the report of Dr Gilandos “a young man with some problematic health difficulties. He has a range of medical complaints and they include, significantly, what appear to be severe respiratory problems”. I am informed in fact at the present time the offender is in some form of isolation not for his own protection as such, but because of a belief or a fear that he may suffer from some illness such as tuberculosis.

28 I note in relation to his current circumstances that he is receiving 25 milligrams methadone and has been receiving methadone since being taken into custody, consistent with the history of drug usage, prior to the commission of this offence. He has claimed to Dr Gilandos, although he did not expressly claim it to me, that he is fearful whilst in custody, and presented to Dr Gilandos in a distressed state on one occasion, although somewhat more composed when in the presence of a female interpreter on a later occasion. It should be fairly said, for the record, that the offender is of quite slight build, he is not tall and apparently he weighs fifty five kilograms. He is a person who appears much younger than his stated years. If I had been asked to estimate his age when he came into the dock I would have said somewhere around sixteen or seventeen years of age. I mean him no disrespect, but Dr Gilandos suggested he is “effeminate in appearance” and I would concur with that assessment. As I said, the offender is not in any protective custody, however there can be no doubt that through the course of his time in custody the offender by reason of his physical appearance, his physical dimensions and his health, will be vulnerable whilst in custody in a range of ways. There is no suggestion that he is a violent man. He is a person Dr Gilandos describes as “passive” in nature and there is nothing in his background to suggest otherwise. Dr Gilandos’ assessment of the matter, confining the matter to issues within the doctor’s professional skills, is that the offender is a person within the average scale of intelligence, is functionally illiterate in English, although he apparently does speak some English, was assessed on the Beck Depression inventory to be “severely depressed” although in part this would be reactive to his current circumstances, and under the Beck Anxiety inventory is said to be moderately anxious at the present time.

29 Doctor Gilandos, who, I must say, is a very experienced clinical psychologist and not just a psychologist who specialises in forensic reports, formed the view that the prisoner, in accordance with DSMIV criteria suffers from what he describes as chronic adjustment disorder with mixed anxiety and depressed mood. There is in the history and from the evidence of the prisoner some support for the proposition the prisoner is a person who has suffered at least some anxiety and some depressive reaction to his circumstances in Australia being dislocated from his native culture. I do not believe that the depressed mood observed by the doctor is solely reactive to his current custodial situation.

30 Aside from of course the commission of this offence, there is no evidence of anti-social personality disorder. The psychologist claimed that the offence is “best understood as the prisoner’s maladaptive attempt to treat his depression by heroin compounded by debt due to this drug habit”. This analysis is not something with which I can entirely agree although the background of drug use and his financial circumstances were relevant to bringing him into the plan to commit this offence.

31 It is important to bear in mind in assessing is prospects of rehabilitation and also assessing his past character, that his use of heroin in the past apparently was not funded by criminal activities, other than of course this particular activity.

32 I note the assessment of Dr Gilandos that the prisoner is a dependant individual and I can accept that he is a person who may be easily swayed and even intimidated by others. The doctor expressed a conclusion that the offence was motivated more by psychiatric rather than criminal factors. With that assessment I cannot agree. However, I accept the need for care to be taken in the future treatment of the prisoner and the treatment plan proposed by Dr Gilandos involves a number of matters that need to address including drug usage and dependency matters, psychological or psychiatric matters as well as matters relating to literacy and education as well as re-establishing family support.

33 In that regard I note the evidence of his mother who expresses shock and surprise at his involvement in this offence. Her evidence supports the prisoner’s claims of connection with Vietnam through his wife and other family members. I accept that his mother and the prisoner’s family will continue to support the prisoner and there will be that support available to him when he is released from custody.

34 There is some history that the prisoner has the capacity to undertake employment with the skills that he has acquired in the past although his work history in Australia has been dislocated considerably by as many trips back to Vietnam. The prisoner is said by Dr Gilandos to have some insight at least into the circumstances in which he committed the offence with which I am concerned and I trust that is so.

35 In relation to this matter I regard the prospects of the rehabilitation of the prisoner as positive, if he is given appropriate professional support and guidance. There is nobody who is dependant upon him other than, I suppose emotionally, his wife in Vietnam. But there is little she can do about the situation from that distance and whether she is able to come to Australia now that he has been convicted of this matter is very much a moot point.

36 In sentencing the prisoner I note of course that I am required to impose a term of imprisonment only if I am satisfied there are no other sentences appropriate in all the circumstances and clearly that is the case here. I propose to impose a head sentence of greater than three years thus I will fix a non-parole period. With regard to the non-parole period I note what has been said about the general range of non-parole period by relationship to the head sentence in cases such as Bernier cited in the Crown’s written submissions. The fixing of a non-parole period is of course very much a discretionary exercise and involves consideration of a range of matters discussed in many cases. In this particular case I believe the prisoner needs an extended period of time to adjust to community living. I also bear in mind the need for the prisoner to have professional assistance in a range of areas, many of which are identified by Dr Gilandos.

37 In fixing the appropriate sentence and also to some extent the non-parole period I note the fact that the prisoner’s circumstances of custody will be difficult by reason of his physical appearance. Of course I am not concluding as a fact that he is in any danger, nor have the Corrective Services officials, much better qualified than I in these circumstances, thought that he is in any particular danger at the present time. However, for a young man of his background, of his appearance, with his physical qualities, prison will be a daunting and intimidating and difficult experience for him and I trust that the sentence I impose will have the effect of deterring him from future breach of Australian law.

38 I have been provided with some statistics, most of them pre-repeal, in fact all of them pre-repeal s 16G Crimes Act. I have also been given a range of what I call comparative sentences by the Crown with three particular judgments provided and in a table prepared by the Public Defenders submitted by counsel for the accused. I have taken into account the range of sentences that appear to be available for offences of this type. Of course no two cases are exactly the same. Subjective circumstances and other matters personal to an offender will vary from case to case and the objective facts will vary of course from case to case.

39 As the Crown properly pointed out sentencing is not reduced to some mathematical precision based upon the weight of the drug. To use my words, we do not have as yet a Hammurabi Code that fixes a particular sentence for a particular quantity of drug imported into the country. But the range of sentences imposed by superior courts to this and the guidance provided in a range of cases including of course the guideline judgment of Wong and Leung, which was struck down by the High Court, provides some assistance in ensuring that an appropriate sentence falls within legitimate sentencing discretion. Naturally of course I factor into my consideration that sentences imposed before early 2003 had available to them a reduction available under s 16G which is no longer available and of course in that regard I note a number of decisions dealing with the appropriate approach to sentencing for Commonwealth matters post repeal of s16G. I need only cite the very helpful judgment of Howie J and R v Studenikin (2004) 60 NSWLR, particular at paragraphs 68-72 and of course the judgment of Chief Judge at Common Law in R v Mas Ravadavia (2004) 61 NSWLR 63.

40 I have noted, as is obvious from my remarks both directly and indirectly, the submissions of the parties which have been most helpful. The Crown’s written submissions were, as usual, excellent and I am very grateful for the assistance they have provided.

41 In the end obviously as I have said a term of imprisonment must be imposed and the term of imprisonment will be as I have foreshadowed.

42 In relation to the offence to which you have pleaded guilty you are convicted. In respect of that particular offence you are sentenced to a term of imprisonment of 6 years which is to commence on 10 July 2006 and will expire on 9 July 2012. In respect of that sentence I have determined that there be a non-parole period of 3 years and 4 months. That sentence will likewise commence on 10 July 2006 and will expire on 9 November 2009. In fixing that sentence of course I have had regard to s 19AB Crimes Act 1914. Whether you are released to parole will be a matter for the parole authorities. You will need to be of good behaviour whilst in custody for that to occur although there is no suggestion that you are a security or other problem for the authorities. When you are released to parole if you commit offences whilst on parole you may have your parole revoked and may be committed back to custody. I will ask that your warrant be marked with a recommendation that the Corrective Services officials take all reasonable steps to ensure your safety whilst in custody.

43 Do you understand the sentence that I have imposed Mr Hoang?

44 OFFENDER: Yes your Honour.

45 HIS HONOUR: You understand that you will be eligible for release to parole on 9 November 2009?

46 OFFENDER: Yes your Honour.

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