R v Hoang

[2020] ACTSC 262

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v French
Citation:	[2021] ACTSC 205
Hearing Dates:	13, 27 August 2021
Decision Date:	27 August 2021
Before:	Murrell CJ
Decision:	Offender sentenced to a total of two years and one month’s
imprisonment with a 13-month nonparole period.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking a controlled drug – where controlled drug is methylamphetamine – where history of substance abuse –
where offender on conditional liberty imposed for drug offences
– breach of good behaviour orders
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) s 33, 35 Criminal Code 2002 (ACT) s 603(7)
Cases Cited:	Bui v The Queen [2015] ACTCA 5 R v Hoang [2020] ACTSC 262
Parties:	The Queen (Crown)
Brett Matthew French (Offender)
Representation:	Counsel
M Dyason (Crown) P Bevan (Offender)
Solicitors
ACT Director (Crown) Bevan & Co (Offender)
File Number:	SCC 110 of 2021
MURRELL CJ:
Introduction

1. The offender is to be sentenced for the offence that, on 4 January 2021, he trafficked in a controlled drug other than cannabis, namely methylamphetamine, contrary to s 603(7) of the Criminal Code 2002 (ACT).

2.       The maximum penalty for the offence is imprisonment for 10 years, a fine of $160,000, or both.

3. After initially pleading not guilty, and after a brief of evidence had been provided, the offender pleaded guilty on the fifth mention in the Magistrates Court. Although the plea was not entered at the earliest opportunity, I consider that he should be afforded the benefit of a discount under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) of up to 25 per cent.

4.       The offence placed the offender in breach of three good behaviour orders that had been imposed by the Magistrates Court. I am asked to deal with those breaches.

5.       The offender has been in custody since the date of the offence.

Facts of the offence

6.       At about 6:20PM on 4 January 2021, police executed a search warrant at the offender's residence in Higgins.

7.       They heard movement within a shed at the premises and attempted to gain access via door but found that it was locked. The roller door to the shed was closed. The offender opened the pedestrian door and allowed police to enter. When they entered the shed, the offender was present with three other men, but it is not alleged that those other men have committed any relevant offence

8.       The shed contained a large amount of property.

9.       The following items were seized:

(a)	141.107 grams of methylamphetamine with a base of 16.5 per cent purity in a clear plastic container.
(b)	43.242 grams of methylamphetamine with a base of 78.4 per cent purity in a clip seal bag.
(c)	“Cutting agents” and chemicals.
(d)	A black electronic scale.
(e)	Several large clip seal bags and rubber gloves.
(f)	Several mobile telephones.

10.    In addition, police observed a comprehensive closed circuit television system involving cameras at various points around the premises that transmitted to screens within the shed.

11.    The offender was arrested. His mobile telephone was seized. Text messages downloaded from the phone indicated that the offender was involved in the sale and/or supply of substances at least from 25 December 2020, a period of about 10 days. I note that he has only been charged with the offence committed on 4 January 2021.

12.    The trafficable quantity for methylamphetamine is six grams. The commercial quantity is three kilograms. A penalty of imprisonment for 25 years, a fine of $400,000 or both applies to trafficking in the commercial quantity.

13.     The subject offence was committed in breach of three good behaviour orders.

14.     On 29 August 2019, the offender was sentenced in the Magistrates Court for an offence of possessing a drug of dependence to an 18-month good behaviour order. On 9 April 2019, he was sentenced in the Magistrates Court for two 2018 offences of driving with a prescribed drug in oral fluid, in each case to a 24-month good behaviour order.

Objective seriousness

15.    The principles relevant to sentencing drug offender were discussed in Bui v The Queen [2015] ACTCA 5. The considerations that are relevant in this case are:

(a) The offender's role. The operation was not unsophisticated; there was CCTV

at the premises and the offender was in possession of “cutting agents” and

chemicals. On one hand, the evidence does not support a proposition that he was significantly up the distribution hierarchy. On the other hand, he was not at the bottom end in terms of trafficking. In submissions, the Crown described the offender as a low to mid-level dealer and I agree with that characterisation.

(b) The total weight of the drug was about 184 grams. The concentration of most

of the drug (141 grams) was low, presumably because it had been “cut”. Part

of the drug (43 grams) had a much higher concentration.

(c)	While the street value of the drug was not the subject of evidence, the quantities can be considered in the context that, at the time of his arrest, the offender was using methylamphetamine at a rate of one gram a day and considered himself to be a relatively heavy user of that substance. Within the range of trafficable quantity, the quantity was not insignificant but nowhere near the top end of the range.
(d)	I accept that one motivation for the offence was to support the offender's own drug habit. Another was to meet his living expenses. I am not satisfied that, beyond meeting such expenses, the offender was making a significant profit from the operation.
(e)	While the offender is to be sentenced for an offence committed on one day only, he cannot benefit from a finding that it was an isolated incident, given that the operation continued from at least 25 December 2020.

16.     The Crown submitted that in New South Wales there is a principle that, generally, a

sentence of imprisonment should be imposed in the case of “trafficking to any
substantial degree”.

17.     I would not wish to see that principle adopted in this jurisdiction. I was not referred to an authority in which the rule had been adopted in this jurisdiction. However, the circumstances of this case are such that it is not appropriate to impose any sentence other than a sentence of imprisonment and one involving, prima facie, should involve a significant period of full-time imprisonment. The defence conceded that some sort of sentence of imprisonment was appropriate.

Facts of breach offence on 6 June 2018

18.     The facts of the breach offence committed on 6 June 2018, which resulted in the imposition of a two-year good behaviour order by Magistrate Boss on 9 April 2019, are as follows.

19.     On 6 June 2018, police followed the offender's vehicle. It was speeding and it failed to stop at a red traffic signal. Later that day, the offender was required to undergo a drug screening test, which was positive for methylamphetamine.

Facts of breach offence on 10 September 2018

20.     As to the breach offence committed on 12 September 2018 for which Magistrate Taylor sentenced the offender to an 18-month good behaviour order on 29 August 2019, the facts are as follows.

21.    On 12 September 2018, police executed a search warrant at the same Higgins address as is the subject of the principal offence. A search of the offender's wallet located a small clip seal bag weighing 0.446 grams which contained methylamphetamine. In the offender's bedroom, police located further methylamphetamine (amounts of 0.528 grams and 2.661 grams). This means that the total quantity in the offender's possession on that day was very roughly 3.5 grams, an amount suggesting possession for personal use.

22.     This breach offence is the most significant of the breach offences because it involved the same address and same drug as the principal offence. The resulting good behaviour order was current at the time of the principal offence, albeit that the principal offence was committed towards the end of that good behaviour period.

Facts of breach offence on 29 December 2018

23.     There is a third breach offence of driving with a drug in his oral fluid which was committed on 29 December 2018 and for which Magistrate Boss sentenced the offender to a two-year good behaviour order.

24.     On 29 December 2018, police stopped the offender's vehicle and required him to undergo drug screening, which was positive for a prescribed drug.

Subjective features

25.     The offender is 52 years old, almost 53 years old.

26.     The fact that the principal offence was committed when the offender was subject to conditional liberty that had been imposed for drug offences (albeit not trafficking in drugs offences) is an important consideration.

27.     The offender has a lengthy criminal history. As an adult, he was sentenced for possession of methylamphetamine in 2009, firearms offences in 2011, possession of various drugs in 2011, possession of drugs of dependence and firearms offences in 2012, driving a vehicle with an illicit drug in his blood in 2013, a firearms offence in 2015, driving with prescribed drug in his oral fluid or blood offence in 2016 and, as stated above, he was sentenced for drug offences in 2018 and 2019.

28.    Generally, in relation to past offences, he received fines and/or good behaviour orders. The current period of incarceration is the first time that he has served any period in full-time imprisonment.

29.     In relation to several good behaviour orders, the offender has been non-compliant in relation to supervision.

30.     His behaviour in custody since January 2021 was described as “mixed”. However, he

has obtained work as a laundry worker. In that position, he has received a pay increase. In addition, he has undertaken several programs. One could conclude that his conduct in custody has been relatively good.

31.     He is the youngest of three children. His brother, who suffered a childhood trauma, tormented the offender and his sister in their childhood.

32.     The offender's parents separated when the offender was 12 or 13 years old. The offender told a psychologist that he then lived with his father for two years. At 15 years of age, he began to exhibit behavioural problems. He left home at 16 years of age. He came to live in Canberra with his mother when he was 17 years old.

33.     The offender's relationship with his mother and sister is very good and he is in regular contact with them. He has a good relationship with his brother and father, both of whom live in Queensland.

34.     He has two adult children from a previous relationship, with whom he has positive and supportive relationships. From another relationship, he has a nine-year-old son with whom he has regular contact. The offender and his partner of 15 months have an infant child who was born in April 2021. Currently, the child is in the care of ACT Child and Youth Protection Services and, until the relatively recent past, the offender has had fortnightly visits. He would like to assume the sole care of this child.

35.     The offender was in a relationship from 2015 to February 2020 with a much younger partner who had mental health problems. In February 2020, she committed suicide. Unfortunately, it was the offender who found her body, after she had hung herself in the backyard of their premises. He had to undergo the trauma of releasing her from the noose and, unsurprisingly, he continues to experience emotional difficulties arising from this incident.

36.     Prior to the current period of imprisonment, the offender was residing in a rental property with two friends. Upon release, he proposes to reside either with an adult stepson or with a friend and her husband who have offered him accommodation. At one stage, he proposed residing with another friend, but ACT Community Corrections were concerned about that proposal because occupants of that residence were thought to use illicit drugs. The offender does not propose to reside with his current partner because she continues to abuse substances.

37.     The offender said that he suffered from attention problems at school, which meant that he did not absorb some basic educational learnings. Following a lengthy period of significant absenteeism, the offender left school in Year 9. However, I note that a prison report (part of Exhibit 3) states that the offender has above average literacy and numeracy skills. It is obvious that he is a reasonably intelligent person.

38.     At 15 years of age, he commenced employment in a hotel, working with his father. Since then, he has undertaken short periods of employment, and a significant period of employment between 2001 and 2012 as a garbage waste collection driver.

According to the pre-sentence report, he left that employment as he was “burnt out

from the responsibilities of working full-time and being the president of an outlaw

motorcycle gang'”. However, there is other evidence suggesting that he left the

motorcycle gang in 2010. He gave evidence that he left his employment in 2012
because he lost his licence due to drug driving.

39.     In any event, he has not worked since 2012, stating that he has been supported by Centrelink payments and through the financial assistance of friends. There was evidence that, upon his release, he can work full-time in a friend's excavating and landscaping business. He is currently eligible to regain his driver's licence.

40.     At an earlier point in his life, the offender was a binge drinker, but he does not have a current problem with alcohol, and said that he last drank alcohol in February 2020.

41.     At 21 years of age, he began to use amphetamines recreationally, escalating to much more frequent use while a member of an outlaw motorcycle gang. He said that he was a member of the gang for six years from 2004 until 2010 (as noted above, the evidence on this matter was contradictory). After leaving, he maintained associations with other negative peers.

42.    The offender told a psychologist that he commenced using methamphetamine in

2008 and “never looked back”. He ceased work in 2012 because of the level of his substance abuse. Following the death of his partner in February 2020, he used “ice”

daily to numb his emotions.

43.     He advised the author of the pre-sentence report that he was willing to engage in community-based substance abuse treatments but was not willing to engage in

residential rehabilitation, as he did not think that he could reside in “that type of environment”. In 2001, the offender's attempt to engage in the Oasis Bridge program

was unsuccessful. In 2012, he completed only four days of a seven-day
detoxification program at The Canberra Hospital.

44.     In about 2011, the offender was diagnosed by a general practitioner as suffering from anxiety and depression. However, he did not receive treatment. Currently, he has no major mental health problems, but he is engaging with the Alexander Maconochie Centre chaplain in relation to the grief associated with the suicide of his former partner in February 2020.

45.     A psychologist said that he was “experiencing grief since ceasing his substance use which was previously delaying his emotional processing of his partner's death”. I

have no difficulty accepting that analysis of the situation.

46.     In 2005, a motorbike accident resulted in injuries to the offender's left heel, which continues to cause pain. As the result of an old workplace injury, he has a limited range of motion in his left shoulder, which also causes chronic pain. He hopes to undergo a surgical reconstruction of the left shoulder.

47.     The offender agreed with the author of the pre-sentence report that his behaviour was unlawful. He stated that he was selling methylamphetamine to support his own habit. He identified his substance use and the suicide of his former partner as contributing

to the current offences. He told the psychologist that he felt “relieved” when the police
attended his residence and described his incarceration as “a blessing in disguise”.

48.     The author of the pre-sentence report assessed the offender as at high risk of general reoffending, related to his unaddressed substance abuse, psychological problems and limited engagement with pro-social peers and activities. The psychologist assessed the offender as at moderate risk of reoffending, largely because of his

history of substance abuse, employment history, “lifestyle” and criminal history.

49.     The offender agreed with the author of the pre-sentence report that “he will need to

make significant life changes to address his problematic drug use and mental health

through targeted interventions and treatment”.

50.     He has been assessed as unsuitable for community work or an intensive correction order. The offender's legal representative nevertheless proposed that a suspended sentence or intensive correction order were available and appropriate sentencing options.

51.     I do not agree. Considering the relationship between the offender's drug use and criminality and the degree to which both are entrenched, I consider that such orders would fail to provide an adequate deterrent to the offender and would fail to adequately protect the community against drug trafficking.

Other sentencing considerations

52.    The sentencing purposes of adequate punishment, general deterrence, personal deterrence, and protection of the community (from the dangers of illicit drugs such as methylamphetamine) are prominent.

53.     The offender's criminal history is closely related to substance abuse. Despite his mature years, the offender has not demonstrated a strong motivation to rehabilitate from substance abuse, let alone the capacity to do so. On the two occasions that he has attempted rehabilitation (one was merely via detoxification) he has not succeeded. However, if he is removed from negative community associations for a significant period and he does address emotional issues, the position may improve.

54.     The offender stated that he has been drug free in prison and he intends to remain so when released. The fact that he wishes to obtain sole care of his infant child will provide a further strong motivation to address substance abuse.

55. In addition to the objective circumstances of the offending and the offender's subjective circumstances, I am required to consider the factors set out in s 33 of the Sentencing Act. I believe that I have referred to the relevant matters above.

Comparable cases

56.     The Crown provided a table of somewhat comparable cases. Although it was of limited assistance because it contained very limited information, the table is consistent with a sentence starting point for an offence like the present in the range of two to four years.

57.     In R v Hoang [2020] ACTSC 262, I sentenced an offender for trafficking heroin (143 grams of high purity drug, sold to undercover operatives on five occasions over six weeks). The offender was 47 years old and had previously been sentenced for a similar offence. Otherwise, he had strong subjective circumstances. After reviewing several cases, I sentenced him from a starting point of 27 months' imprisonment.

Sentence

58. In relation to the offence of trafficking in a controlled drug other than cannabis, namely methylamphetamine, I consider that the appropriate starting point is 32 months' imprisonment, from which I will deduct 25 per cent pursuant to s 35 of the Sentencing Act, arriving at a sentence of two years' imprisonment.

59.     Having regard to the facts that the offender has not previously been incarcerated, his experience in prison will no doubt be salutary, and it will provide him with an opportunity to remain away from drugs, I would be appropriate to impose a nonparole period at the low end of the usual range of 13 months' imprisonment. I would commence the sentence for the principal offence from 4 February 2021.

60.     The proceedings were adjourned to allow the offender’s legal representative to obtain

instructions as to whether the offender wished to the assessed for the drug and alcohol sentencing list. The offender did not wish to be assessed for a drug and alcohol treatment order.

61.     In relation to the breach offences of driving with substances in fluids on 6 June 2018 and 29 December 2018, I find that the offender has breached the good behaviour orders, but I take no action.

62.     In relation to the breach offence of 12 September 2018, I find that the breach is established. I re-sentence the offender to two months' imprisonment, from 4 January 2021 to 3 March 2021. The sentence has expired.

63.     For the offence of trafficking in a controlled drug other than cannabis, the offender is

convicted and sentenced to two years’ imprisonment, from 4 February 2021 to 3

February 2023.

64.     I fix a nonparole period of 13 months’ imprisonment, from 4 February 2021 to 3 March

2022.

I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell

Associate:

Date: