R v Hoang - [2016] ACTSC 183

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Van Dam Hoang
Citation:	[2016] ACTSC 183
Hearing Date:	22 July 2016
DecisionDate:	22 July 2016
Before:	Elkaim J
Decision:	See [35]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – drug offences – trafficking in controlled substance other than cannabis, namely heroin – s 603(7) Criminal Code 2002 (ACT) – sentence of full-time imprisonment imposed – partially suspended CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – resisting a Territory official – s 361 Criminal Code 2002 (ACT)
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), ss 6,7,10, 33(1)(za) Criminal Code 2002 (ACT), ss 361, 603(7), 631 Magistrates Court Act 1930 (ACT), s 90B
Cases Cited:	Muldrock v The Queen [2011] 244 CLR 120 R v Hoang [2015] ACTSC 138 R v Phay [2015] ACTSC 238 R v Truong [2015] ACTSC 244
Parties:	The Queen (Crown) Van Dam Hoang (Offender)
Representation:	Counsel Ms Katrina Mackenzie (Crown) Mr Ken Archer (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Lawyers (Offender)
File Number:	SCC 160 of 2015 ; SCC 161 of 2015

Elkaim J:

Introduction

On 3 December 2015, the offender pleaded guilty in this court to the following offences:

(a)One count of trafficking in a controlled substance other than cannabis, namely heroin, between 25 February 2015 and 13 March 2015, contrary to s 603(7) of the Criminal Code 2002 (ACT).
(b)A summary charge of resisting a Territory official on 12 March 2015, contrary to s 361 of the Criminal Code 2002 (ACT), which offence was transferred to the Supreme Court pursuant to s 90B of the Magistrates Court Act 1930 (ACT).

The maximum penalty for the first count is 10 years imprisonment or 1,000 penalty units or both.

The maximum penalty for the second count is two years imprisonment or 200 penalty units or both.

The facts behind the offences

On 25 February 2015, an undercover police officer spoke to the offender by telephone and organised the purchase of two 7gm balls of heroin to take place the following day.

On the following day, the police officer met the offender at O’Rourke Street, Weetangera in the Australian Capital Territory. The offender produced only one ball of heroin. The police officer reminded the offender of the agreement to purchase two balls. The offender left the scene but returned shortly with two balls and handed them over in exchange for $2,900.

Analysis of the balls revealed a powder substance weighing 14.143gms in which heroin was detected.

On 5 March 2015, the police officer again spoke to the offender and arranged for the purchase of four 7gm balls of heroin. Later on the same day the officer and the offender met again at O’Rourke Street. The officer followed the offender to another location where the four balls were exchanged for $5,700.

Analysis of these balls revealed a powder substance weighing 27.854gms and again heroin was detected.

On 12 March…

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 183
Case: [2016] ACTSC 183
Decision Date: 22 July 2016

CaseChat Overview and Summary

In the case of R v Hoang, the defendant was convicted of trafficking in a controlled substance, specifically heroin, and of resisting a Territory official. The matter was heard in the Supreme Court of the Australian Capital Territory. The defendant was found to have been involved in a significant drug trafficking operation and had also resisted arrest by a law enforcement officer. The court was required to determine an appropriate sentence for these offences.

The legal issues before the court included the appropriate sentencing principles to apply to the drug trafficking offence under section 603(7) of the Criminal Code 2002 (ACT) and the sentencing for the offence of resisting a Territory official under section 361 of the same code. The court had to consider the nature and extent of the defendant's criminal conduct, his culpability, and the principles of deterrence, denunciation, and rehabilitation in determining the sentence.

The court considered the defendant's role in the drug trafficking operation, noting the significant quantity of heroin involved and the defendant's active participation. It also took into account the defendant's prior criminal history and his role in resisting arrest. After weighing these factors, the court determined that the appropriate sentence for the drug trafficking offence was full-time imprisonment, partially suspended. This decision reflected the seriousness of the offence and the need for deterrence while also considering the defendant's potential for rehabilitation. The sentence for the resisting a Territory official offence was also determined and incorporated into the overall sentence.

The court made orders consistent with the sentencing determination, which included a sentence of full-time imprisonment for the drug trafficking offence, partially suspended, and a concurrent sentence for the resisting a Territory official offence. The specifics of the orders are detailed in the court's reasons at paragraph [35].

Orders

Orders of the court

See [35]

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.