R v Hoang - [2016] ACTSC 272

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 Drugs of Dependence Act 1989 (ACT), s 188 Criminal Code 2002 (ACT), s 603(5) Criminal Code Regulation 2005 (ACT), Sch 1
Cases Cited:	Ashdown v The Queen (2011) 219 A Crim R 454 Bui v The Queen [2015] ACTCA 5 Goundar v Goddard (2010) 240 FLR 176 R v Oliver (1980) 7 A Crim R 174
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…

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 [2016] ACTSC 272
Case: [2016] ACTSC 272
Decision Date: 29 July 2016

CaseChat Overview and Summary

Trong Hoang was charged with trafficking in a traffickable quantity of cannabis and brought the matter before the ACT Supreme Court. Hoang made an early guilty plea and the matter proceeded to sentencing. Hoang did not have a prior criminal history and the court took into account that this was his first offence. The court was required to determine an appropriate sentence that balanced the need for general deterrence, Hoang’s culpability and his remorse, and his prospects for rehabilitation. Hoang’s counsel argued for a sentence of imprisonment to be suspended after a period of time. The prosecutor did not object to a suspended sentence but argued for a longer period of imprisonment and supervision.

The court determined that Hoang’s culpability was low as he did not seek to profit from the offence. Hoang was remorseful and had a clean criminal history. The court found that Hoang had been involved in the offence due to his association with a partner who was the mastermind of the offence. The court concluded that the need for general deterrence outweighed Hoang’s prospects for rehabilitation and his lack of culpability. The court ordered that Hoang be sentenced to two years and six months imprisonment to commence 8 March 2016. The sentence was suspended on 7 September 2016 for two years. Hoang was 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. Hoang was also required to be under the supervision of the director-general or her delegate for twelve months or such lesser period as the person supervising him considered appropriate and that he obey all reasonable directions of the person supervising him.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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