R v Huat Phay - [2009] ACTSC 130

R v HUAT PHAY
[2009] ACTSC 130 (10 September 2009)

EX TEMPORE JUDGMENT

No. SCC 279 of 2008

Judge: Rares J
Supreme Court of the ACT
Date: 10 September 2009

IN THE SUPREME COURT OF THE       )
  )          No. SCC 279 of 2008
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN
v
HUAT PHAY

ORDER

Judge:  Rares J
Date:  10 September 2009
Place:  Canberra

THE COURT ORDERS THAT:

Huat Phay (called the “offender” in these orders) is convicted of trafficking in a controlled drug other than cannabis, namely heroin, in the Australian Capital Territory on 14 April 2008 and is sentenced to 12 months imprisonment.
The sentence in order 1 is to be suspended and the offender released on condition that:
(a) he sign an undertaking to comply with the conditions of this order;
(b) he be of good behaviour for a period of 3 years from today;
(c)the offender comply with the offender’s good behaviour obligations, including the core conditions of the order, under sections 85 and 86 of the Crimes (Sentence Administration) Act 2005;
(d)he maintain contact with ACT Health Alcohol and Drug Program by attending on programs at such times as a counsellor may nominate for the purpose of relapse prevention for 1 year;
(e)he perform 100 hours of Community Service on or before 9 September 2010.
The offender is convicted of possessing a drug of dependence namely methylamphetamine in the Australian Capital Territory on 14 April 2008 and is sentenced to pay a fine of $250.
The fine in order 3 is ordered to be paid on or before 1 October 2009.
The Court notes that:
The offender is currently employed as a night shift taxi driver and it is not the intention of the Court that the obligation in order 2(e) (that the offender perform community service work) unreasonably interfere with his ability to undertake his employment.

The accused has pleaded guilty to two offences relating to his drug problem. The first offence was that on 14 April 2008, he trafficked in a controlled drug, namely, heroin, in contravention of s 603(7) of the Criminal Code 2002 (ACT). The second offence was that, on the same date, he possessed a drug of dependence, namely, methyl amphetamine, in contravention of s 169(1) of the Drugs of Dependence Act 1989 (ACT).

A year ago I made a deferred sentence order, see R v Huat Phay [2008] ACTSC 96. The accused has complied with all of the obligations imposed on him when I deferred his sentence. It is necessary for me to explain the conclusions to which I have come.

THE ACCUSED’S BACKGROUND

The accused is a Cambodian by birth. When the regime of Pol Pot assumed power in 1975 he was about six years old. With his parents, four sisters and elder brother, the family was moved from their city home to a prison farm. The accused saw his mother and three younger sisters die there. And he believes, having last seen them, when his father and elder…

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 Huat Phay

Details

AGLC: R v Huat Phay [2009] ACTSC 130
Case: [2009] ACTSC 130
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory was presented with the case of Huat Phay, who had pleaded guilty to two drug-related offences. The first offence was trafficking in a controlled drug, specifically heroin, and the second was possession of a drug of dependence, namely methylamphetamine. The court had to decide on an appropriate sentence that would reflect the gravity of the offences while also considering the offender's background, rehabilitation efforts, and the impact of his actions on the community.

The court noted the extensive background of the offender, who had endured significant hardship, including the loss of family members during the Khmer Rouge regime and subsequent displacement as a refugee. These experiences appeared to have contributed to his drug dependency and subsequent criminal activities. The court considered the offender's efforts to rehabilitate himself, including his abstinence from drugs, employment as a night shift taxi driver, and his plans to open a small restaurant business. The offender had also complied with all obligations imposed during a previous deferred sentence, including regular attendance at counselling sessions and maintaining regular contact with the ACT Health Alcohol and Drug Program.

The court emphasised the destructive nature of drug trafficking and the importance of holding offenders accountable. However, it also recognised the offender's commendable efforts to reform his life. The court decided to impose a sentence that included both punishment and rehabilitation. The offender was convicted of trafficking in a controlled drug and sentenced to 12 months imprisonment, which was suspended on conditions. These conditions included good behaviour for three years, compliance with good behaviour obligations, participation in relapse prevention programs, and the completion of 100 hours of community service. For the possession charge, the offender was sentenced to a fine of $250. The court ensured that the community service requirement would not unduly interfere with the offender's employment.

In conclusion, the court aimed to balance the need for punishment with the offender's demonstrated efforts towards rehabilitation. The sentence reflected the seriousness of the offences while also providing an opportunity for the offender to contribute positively to society and rebuild his life.

Orders