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…

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 [2020] ACTSC 262
Case: [2020] ACTSC 262
Decision Date: 27 August 2021

CaseChat Overview and Summary

In the case of R v Hoang, the offender, Mr Hoang, was convicted of trafficking a controlled drug, specifically methylamphetamine. The dispute reached the court to determine the appropriate sentence for the offence. The court's task was to balance the seriousness of the offence with Mr Hoang’s personal circumstances, including his history of substance abuse. The court was also required to consider the statutory framework governing sentencing, particularly the mandatory minimum sentences outlined in the relevant drug trafficking legislation.

The central legal issues were whether the mandatory minimum sentence should apply and, if so, how the court should mitigate the sentence in light of Mr Hoang's personal history and circumstances. The defence argued for a sentence that took into account Mr Hoang's rehabilitation efforts and his history of substance abuse, suggesting that a less severe penalty would be more appropriate. The prosecution, on the other hand, emphasised the gravity of the offence and the need for a sentence that reflects the seriousness of drug trafficking.

The court considered the statutory provisions and found that the mandatory minimum sentence did apply. However, the court also acknowledged Mr Hoang's personal circumstances and his efforts to address his substance abuse issues. In balancing these factors, the court determined that a sentence of two years and one month was appropriate, allowing for some mitigation while ensuring that the sentence reflected the severity of the offence. The court ordered that Mr Hoang be sentenced to a total of two years and one month’s imprisonment for the offence of trafficking a controlled drug.

Orders

Orders of the court

Offender sentenced to a total of two years and one month’s

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

(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.