R v Hoang

[2001] NSWCCA 485

CITATION:	R v Hoang [2001] NSWCCA 485
FILE NUMBER(S):	CCA 60074/2001
HEARING DATE(S):	26/11/01
JUDGMENT DATE:	30 November 2001
PARTIES :	Regina Van Ngung Hoang
JUDGMENT OF:	Hidden J at 1; Newman AJ at 7

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/41/0104
LOWER COURT JUDICIAL OFFICER :	Twigg DCJ

COUNSEL :	WG Dawe QC - Crown JA Fliece - Applicant
SOLICITORS:	SE O'Connor - Crown Hovan & Co - Applicant
CATCHWORDS:	Criminal law: Sentence - deemed supply heroin - whether applicant properly characterised as a dealer.
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985
CASES CITED:	R v Tulloh NSW CCA unreported 16.9.93 The Queen v Olbrich (1999) 199 CLR 270
DECISION:	Appeal dismissed.

60074/2001
HIDDEN J
NEWMAN AJ
Friday, 30 November, 2001

Regina v Van Ngung Hoang

Judgment

1 HIDDEN J: The applicant, Van Ngung Hoang, was found guilty at his trial in the District Court of a charge of supplying heroin. He was sentenced to imprisonment for five years with a non-parole period of two and a half years. He seeks leave to appeal against that sentence.

2 Only a very brief recital of the facts is necessary. In the early evening of 30 November 2000 a police officer attended the scene of an accident on the Federal Highway near Goulburn. The applicant was present at the scene, his car having run into a ditch at the side of the roadway. He was found to be in possession of the subject heroin, which he had attempted to conceal. He declined to be interviewed about it. The heroin was subjected to analysis and was found to weigh 54.8g. At the trial the Crown relied upon the deeming provision to be found in s29 of the Drug Misuse and Trafficking Act 1985.

3 The learned trial judge pronounced sentence after comprehensive remarks which considered all relevant matters, objective and subjective. His Honour noted that there was no evidence that the applicant was himself a drug user. This led to a passage in the remarks on sentence which gives rise to the only matter complained of in this application:

… on the finding of the jury, this is a case where the offender is a dealer, that he is using the sale of drugs for greed. I refer to some remarks made by their Honours in the Court of Criminal Appeal case of Robert Francis Tulloh:
“The user/dealer who sells drugs primarily to feed his own habit is at a lower level of criminality than the trafficker for greed….” (R v Tulloh NSW CCA, unreported, 16 September 1993)

4 Counsel for the applicant, Mr Fliece, submitted that the finding that his client was a dealer was not open to his Honour. He pointed out, rightly, that the jury’s verdict meant no more than that the applicant had the heroin in his possession for supply and the evidence did not establish with any greater specificity what he was going to do with it. As I understand it, at the trial the applicant denied being in possession of the drug and continued to maintain his innocence after the verdict.

5 Read in context, it does not appear to me that his Honour was saying any more than that he was satisfied that the applicant had been involved in a dealing with the heroin for profit and could not assert in mitigation of sentence that he himself was an addict. It is true that “supply” does not necessarily mean “sale” but, given the amount of heroin found, the conclusion that the applicant was acting in the expectation of financial gain was readily available. Mr Fliece raised the possibility that the applicant was merely transporting the heroin as a courier. Even if that were so, he would still have been involved in a transaction for profit. In any event, the evidence was such that an examination of the precise nature of his enterprise was neither possible nor necessary for the purpose of sentence: cf The Queen v Olbrich (1999) 199 CLR 270.

6 It may be that his Honour used the word “dealer” somewhat loosely, but I am not persuaded that he fell into the error for which counsel contends. It was not argued that, otherwise, the sentence is manifestly excessive. I would grant leave to appeal but dismiss the appeal.

7 NEWMAN AJ: I agree.