R v Hoang
[2016] ACTSC 272
•29 July 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hoang |
Citation: | [2016] ACTSC 272 |
Hearing Date(s): | 27 July 2016 |
DecisionDate: | 29 July 2016 |
Before: | Refshauge J |
Decision: | 1. Trong Hoang be convicted of trafficking in a traffickable quantity of cannabis. 2. Trong Hoang be sentenced to two years and six months imprisonment to commence 8 March 2016. 3. The sentence be suspended on 7 September 2016 for two years. 4. Trong Hoang be directed to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a two year period from 7 September 2016 with a probation condition that he be under the supervision of the director-general or her delegate for twelve months or such lesser period as the person supervising him considers appropriate and that he obey all reasonable directions of the person supervising him. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – trafficking in a traffickable quantity of cannabis – consideration – no prior criminal history – guilty plea – non-citizen |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), ss 7, 33 Criminal Code 2002 (ACT), s 603(5) |
Cases Cited: | Ashdown v The Queen (2011) 219 A Crim R 454 Bui v The Queen [2015] ACTCA 5 |
Parties: | The Queen (Crown) Trong Hoan Hoang (Defendant) |
Representation: | Counsel Ms S McMurray (Crown) Mr L Nguyen (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) LN Legal (Defendant) | |
File Number: | SCC 123 of 2016 |
REFSHAUGE J:
The distribution of drugs throughout a community is a very serious matter. It is unsurprising, therefore, that the legislature provides severe penalties for offences of drug distribution.
The nature of the drugs that are distributed, however, is relevant and, in particular, the use of cannabis is regarded, by virtue of the maximum penalties provided, less serious than the distribution of drugs such as heroin, cocaine, and methylamphetamine.
Now appearing before me for sentence is Trong Hoan Hoang who has pleaded guilty to an offence of trafficking in a traffickable quantity of cannabis.
To traffic in a traffickable quantity of cannabis is to commit an offence against s 603(5) of the Criminal Code 2002 (ACT), which attracts a maximum penalty of 1000 penalty units (that is, at the time, a fine of $150 000) and imprisonment for 10 years.
Mr Hoang was arrested on 8 March 2016 and appeared in the ACT Magistrates Court the next day. He pleaded not guilty but did not apply for bail and was remanded in custody. He has remained in custody since then.
On 8 June 2016, however, Mr Hoang pleaded guilty and was on that day committed to this Court for sentence.
The facts
The Statement of Facts prepared by the Crown was tendered by consent and admitted into evidence. From it and counsel’s submissions, I can make the following findings.
While police were observing a house in the Canberra suburb of Page, as they were waiting for a search warrant to be issued for the house, Mr Hoang drove past the house. The house was in a cul-de-sac and, when Mr Hoang reached the end of the street, he turned around at the bottom of the cul-de-sac and drove back up the street.
Police thought this was odd and, because they were aware that drugs had been found at the house, they intercepted Mr Hoang’s vehicle. When asked why he had driven this way, he said he was delivering flowers to his girlfriend but was unable to give the unit number of her apartment. He was delivering a kind of flower, but not to his girlfriend and not the legal kind.
He seemed nervous and so police searched the vehicle, acting under s 188 of the Drugs of Dependence Act 1989 (ACT), which permits a search of property under the control of a person where it is necessary to do so to prevent concealment, loss or destruction of anything connected with an offence and it is serious or urgent enough to make the search without a warrant. They found two packing boxes in the boot of the car which contained 26 heat sealed plastic bags in which were a total of 45 bags containing cannabis. The total weight of the cannabis was 22.49250 kilograms.
He told police that he would receive $550 for the task of delivering the cannabis.
Mr Hoang was arrested and, as noted above, remanded in custody where he has remained.
The offence
The offence of trafficking in a traffickable quantity of cannabis is a serious offence as shown by the maximum penalty provided by the legislature. See R v Oliver (1980) 7 A Crim R 174 at 175-6.
As was pointed out in Bui v The Queen [2015] ACTCA 5 at [41], it is particularly relevant to know the role of an accused person, the weight of the drugs and the motivation for the offence, the purpose of profit being a more serious matter.
I am prepared, in the circumstances, to accept that Mr Hoang was a middle-level courier and not a dealer or major organiser of the trafficking. That is supported by the proceeds he would receive from the delivery. Given the amount of drugs involved, however, he was clearly a trusted courier.
In this case, the weight of the cannabis was 22.49250 kilograms. This is a very significant quantity. I accept, however, that weight is not the most important element and does not override other considerations. See Bui v The Queen at [41].
Schedule 1 of the Criminal Code Regulation 2005 (ACT) sets out the quantities of drugs for the purpose of offences under the Criminal Code. In the Schedule, the traffickable quantity of cannabis is not less than 300 grams or more. The commercial quantity of cannabis is not less than 30 kilograms. Thus, the amount that Mr Hoang had in the car was above the middle range and towards the upper end of the range for a traffickable quantity of cannabis. It was, thus, a large amount for the purpose of the offence.
His motivation was financial. It did not appear to be pure greed. The amount he was to receive was not more than a wage. Being an overseas student with limited job opportunities, and dependent upon funds from his family where his father, the breadwinner, is ill and needing money for treatment, must have put significant pressures on him. This moderates to some degree the seriousness of the offence.
Nevertheless, it was a serious offence which requires a punitive response.
Subjective circumstances
I had a Pre-Sentence Report, a letter from Mr Hoang’s father and three references. From them, I can make the following findings.
Mr Hoang was born in Vietnam 25 years ago, the second of three children of his parents. He was raised in Vietnam and described a very close relationship with both parents in a supportive, happy relationship with his mother and two siblings.
He was raised in a strictly Catholic household in which he attended church weekly. He lived with his parents prior to coming to Australia on a student visa in 2016 to study English.
He completed a course at the National Economics University in Vietnam and gained entry into the University of Western Sydney to pursue a Masters program in economics. He has never been in paid employment because his parents encouraged him to focus on his studies. He wishes to become an English teacher on completion of his studies but the risk of deportation as the result of the conviction that I must enter for this offence will likely prevent him continuing with his formal studies. He is, however, undertaking English lessons while in custody. I had a statement from the education provider in the Alexander Maconochie Centre which confirms that and also states that he is engaged in a Foundation Skills Access Course and has completed Workplace Health and Safety. He is described as a consistent, enthusiastic student.
He has been employed as a yard cleaner and as a kitchen cleaner whilst in custody, which displays a level of trust he has earned.
Mr Hoang’s primary source of income prior to his time in custody was money sent to him by his parents to pay for his living expenses. He suggested that this was insufficient for reasonable living expenses and he, accordingly, sought job opportunities but when they did not eventuate, he engaged in trafficking of the drugs to obtain an income as from a job. This is consistent with the amount he was to receive for delivering the drugs.
He has few friends and no relatives in Australia and he no longer associates with the person linking him with the current offence. His isolation in custody both because of the absence of support from family and friends and his limited English, will, of course, mean that he has suffered some greater hardship in prison than usually would be the case.
Mr Hoang has no problems with alcohol and is not a drug user.
Mr Hoang experienced no mental health problems prior to his time in custody although, unsurprisingly, he felt suicidal on entering into custody, but commenced mental health treatment with the Corrections Psychological Support Service as a result of his low mood. This helped him to adjust to the custody and the shame he felt.
Mr Hoang has been diagnosed with a health condition. That may be a reference to tuberculosis to which I refer below. He is not currently medicated but can purchase medication if he returns to Vietnam.
While accepting that the offences were motivated by the need to obtain money, Mr Hoang accepted responsibility for his actions and demonstrated appropriate awareness of the seriousness and potential consequences of the offence. He, in fact, expressed gratitude to the police who intervened, stopping him before he committed further offending. He says he did not realise how bad drugs were until after his arrest and is glad that the drugs have been destroyed so that they do not ruin the lives of other people. Mr Hoang states he feels guilty and embarrassed for his actions and acknowledges the difficulties, especially the waste of money, that he has caused to his family, not to mention the shame.
I had a detailed letter from Mr Hoang’s father with some helpful attachments. These had been translated from the original Vietnamese by an appropriately accredited translator.
His first attempt to come to Australia was abortive as he was diagnosed with tuberculosis which required hospitalisation from August 2013 He remained optimistic and persisted with his treatment. He recovered and, in May 2014, received a visa to study at the Graduate School in Economics at the University of Western Sydney.
Mr Hoang’s father described the terrible shock that he and his wife experienced when they learned of Mr Hoang’s offending. He suggested that Mr Hoang’s motivation was to help the family by making him less reliant on their money.
Mr Hoang’s father is seriously ill with chronic hepatitis leading to cirrhosis of the liver with early stage of liver cancer. While Mr Hoang’s father has health insurance, I had no details of what that covered, but he wrote that they still need a lot of money for treatment, which may include the cost of medications, which he requires. Indeed, he said that he had to borrow money at high interest rates for his treatment.
He was hospitalised in early 2016 for his illnesses. Because of the pressure of earning money for living expenses and to support the education of his children, he had found it difficult to rest and this had aggravated his condition.
He is currently at home awaiting a liver transplant. He is due to return to hospital in September 2016.
Mr Hoang has no prior convictions or, so far as I am aware, criminal record of any kind.
I had, in addition to the reference from the Education Manager of the provider of education at the Alexander Maconochie Centre, references from the Chaplain at the Centre and a volunteer in Pastoral Care and Chaplaincy at the Centre.
Both wrote positively of him. The volunteer referred particularly to efforts he is making to learn to read and speak English, describing him as applying himself “enthusiastically and conscientiously” to improve his skills. She also said he was “self-motivated”, working between lessons and he seems determined to improve himself.
The Chaplain described him as “a gentle, thoughtful man, considerate of others and willing to work hard to improve his situation”. She had spent much time talking to him and described him as always attending chapel services and “a valued member of the chapel community”.
The author of the helpful Pre-Sentence Report reported that Mr Hoang acknowledged the seriousness and potential consequences of his offence. He appeared to her to be shameful of his actions. He was assessed as at a low risk of re-offending.
Consideration
I have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). In this case, general deterrence and punishment are important because of the widespread and destructive consequences of drug trafficking to the community.
Specific deterrence does not seem to me to loom large in this case because Mr Hoang has shown clear understanding of the seriousness of his offending and I have no doubt that he is very unlikely to re-offend. His rehabilitation would clearly be enhanced were he to be able to complete his studies, but that is not a matter of which I have any say.
This was a criminal act. The quantity of the drugs shows that it was a serious one. Mr Hoang’s culpability, however, is at a lower end because of his understandable ignorance of the prohibition on the use of cannabis, other than in very limited circumstances in Australia, though those circumstances are increasing overseas and here. His role and what he was to receive also lead to the conclusion that his culpability was not high. None of these matters were controverted by the Crown.
Nevertheless, I have regard to the seriousness of the offence as I have earlier described it (at [13]-[19]).
I take into account the matters I am required to consider by s 33 of the Crimes (Sentencing) Act. So far as I know them, they are set out in these reasons.
While Mr Hoang is not a minor, he is still a relatively young man and his presence in a very different culture would emphasise a degree of naivety. In my view, he is entitled to be treated as a relatively young man with very good prospects for complete rehabilitation.
The helpful Pre-Sentence Report did refer to matters that were risk factors contributing to his offending. Those were said to be finances, accommodation, mental health, education/employment, attitudes towards offending and companions. Unfortunately, these were not explained and some seemed rather odd, being a generic list rather than actually tailored to his circumstances.
For example, his attitude toward the offending seemed clear and completely pro-social. In the Pre-Sentence Report, there was nothing at all suggesting that he needed to address to show that the offence was prohibited, seriously criminal production of harm to the community and his committing it had brought shame on him and personal and financial harm to his family to whom he was devoted. It is difficult to see what more needs to be addressed unless there is some thought that his response has been duplicitous or superficial. There is no suggestion of that.
Clearly some assistance with financial counselling would be beneficial and he may indeed need some help with accommodation, though he reported favourably on his residence in which he was living immediately prior to his arrest.
The only matters I have not addressed but need to consider is current sentencing practice. I have a record of the ACT Sentencing Database for this offence. I am conscious of the limitation on such statistical information. See Ashdown v The Queen (2011) 219 A Crim R 454 at 511. Access to the database does, however, give access also to the sentencing remarks of the sentencer for the respective offence.
Inspection of the database shows that there were only five cases recorded, but for each of them a Good Behaviour Order or a suspended sentence with a Good Behaviour Order was imposed. I have read the sentencing remarks for those sentences so far as I have been able to access them. They relate to offences less serious than this one, but do provide some principles which are similar to those on which I am acting.
I take into account Mr Hoang’s plea of guilty. While he initially pleaded not guilty, he did enter his guilty plea in the Magistrates Court prior to committal and this entitles him to a real discount in his sentence, though the Crown case was a very strong one.
It is also part of the evidence on which I rely to find that Mr Hoang is remorseful. It seems to me that the plea provides some evidence in a presumptive way of the remorse, but the other matters to which I have referred show in a positive way the steps he has taken to reform, the insight he has shown and the shame he experiences.
This seems to me to provide positive evidence of remorse, similar to references providing evidence of positive good character as opposed to the good character shown by absence of prior convictions. See the discussion in relation to character in Goundar v Goddard (2010) 240 FLR 176 at 184; [45]-[46]. I am well satisfied that Mr Hoang is remorseful and contrite.
The seriousness of the offence, however, is such that a sentence of imprisonment is the only appropriate option. I do not consider, however, that it needs all to be served in full-time custody.
Mr Hoang, please stand:
1. I convict you of trafficking in a traffickable quantity of cannabis.
2. I sentence you to two years imprisonment to commence on 8 March 2016. Had you not pleaded guilty, I would have sentenced you to three years imprisonment.
3. I suspend that sentence on 7 September 2016 for two years.
4. I require you to sign an undertaking to comply with the offender’s Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years from that date with a probation condition that you be subject to the supervision of the Director-General or her delegate for a period of 12 months or such lesser period as the person supervising you considers appropriate and that you obey all reasonable directions of the person supervising you.
[His Honour then spoke directly to Mr Hoang]
Mr Hoang, that is the formal order and because it is in legal terms, I need to explain to you what I have done. I have said that for this serious offence, in your circumstances, I would sentence you to three years imprisonment, but because of your plea of guilty, I have reduced that to two years imprisonment. I am releasing you after six months, that is on 7 September this year and you will be free from prison on that date. You are required, however, to sign a promise. That promise is to not commit any other criminal offences that are punishable by imprisonment.
If you do commit any such offence, then you can be brought back to this Court and you can be punished again for this offence and that would include possibly sending you to gaol as well as, of course, any punishment for the offence that you committed which was a breach of the undertaking.
I have also said that you should be under supervision. Now, the reality is that you may well be deported. I cannot take that into account because those are the rules, but it may be that you will be deported. If you are deported, then there is no supervision and that is the end of it as far as you are concerned.
If you are not deported, or you challenge that on the basis of what I have said in my reasons about your circumstances and so on and you are successful, then you will be under supervision. That is, you will have to report to a probation officer and the probation officer will both exercise some control over you to make sure that you do the right thing, not to get into trouble again, but it is also someone who can help you if things go wrong. If you are having troubles, there is someone that you can talk to about how you might get help to get out of any problems that you are in, so that instead of selling drugs or distributing drugs to gain money, there may be some other thoughts or options that can be used in this case.
So, that is the possibility. As I say, that may not happen if you are deported and that may be the position. I cannot say. That is nothing to do with me.
I agonised as to whether to release you today, but it seems to me that six months is the right period. The only advantage for you, and it is an advantage that I am sure you will take, you may be able to finish your certificate for the foundation skills program and that will give you some education or qualification that your time in Australia, if you are deported, has given you. So, Mr Nguyen will explain the matter to you and probably he will be able to explain it to you in Vietnamese which will be easier to understand, but I hope you understood.
This was a very serious offence. I understand all the circumstances. I hope I have taken them all into account and described it accurately. But I hope that a short period of imprisonment will not prevent you from making a contribution to your family and to the community that I am sure you can make if you turn away from criminal activity such as this very serious matter and behave yourself in a good way in the community.
| I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 16 September 2016 |
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