R v Huat Phay - [2008] ACTSC 96

R v HUAT PHAY
[2008] ACTSC 96 (11 September 2008)

EX TEMPORE JUDGMENT

No. SCC 279 of 2008

Judge: Rares J
Supreme Court of the ACT
Date: 11 September 2008

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

THE QUEEN

v

HUAT PHAY

ORDER

Judge:  Rares J
Date:  11 September 2008
Place:  Canberra

THE COURT ORDERS THAT:

The accused appear before the Court on Thursday 30 July 2009 at 9.30 am for directions.
The accused appear before the Court on Thursday 10 September 2009 for sentencing.
Pursuant to s 27(2) of the Crimes Sentencing Act 2005 (ACT), sentence be deferred for 12 months until 10 September 2009 on the condition that the accused:
(a)for 12 months undertake treatment order consisting of community based counselling with the Alcohol and Drug Program and any other treatment deemed necessary by the Treatment Assessment Panel;
(b)accept the supervision of the Chief Executive of ACT Corrective Services or his delegate and obey all reasonable conditions;
(c)attend any assessment, counselling or program as directed by the Chief Executive or his delegate;
(d)undertake urinalysis drug screening as directed by the Chief Executive or his delegate;
(e)undertake any program for rehabilitation as directed by the Chief Executive or his delegate.
Any previous bail orders be vacated.
Grant bail to the accused on the five conditions in Order 3, and on the additional condition that he refrain from using any illicit substance.
The accused report today, as soon as possible, to ACT Corrective Services.
Noting the consent of the accused, he submit himself for a period of 12 months for the treatment of community based counselling and any other treatment decided to be necessary by the Treatment Assessment Panel pursuant to s 123(3) of the Drugs of Dependence Act 1989 (ACT).

Mr Phay, the story of your life has involved you in a lot of tragedy and rebuilding, and you have come to this country to make a new life where you could succeed. You have shown in different times of your life that you have been prepared to do things and do them within the law. Now, being depressed because of the breakdown of your relationship and falling into this habit of taking drugs, progressing through the drugs until you get to one of the most serious, destructive substances that we have in our society and supplying that, trafficking it to other people, is a real fall from being a good citizen that you once were.

The quantity of the drug that was found, both at your home and that you supplied to the two persons you sold to, was also significant. The explanation that you gave, which the Crown accepts and I accept, is that you were selling this drug to support your habit, but that does not mean that what you did is acceptable or right or decent. People in our community have their lives ruined, like you were trying to ruin your own, by taking drugs,…

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 [2008] ACTSC 96
Case: [2008] ACTSC 96
Decision Date: 11 September 2008

CaseChat Overview and Summary

The case of R v Huat Phay involved the accused, Huat Phay, charged with drug-related offences. The court presided over this matter and was tasked with determining the appropriate sentence for the accused, taking into account the nature of the offence and the circumstances surrounding it. The court's decision was influenced by the statutory provisions relevant to sentencing and the treatment of drug offenders in the ACT.

The legal issues before the court included the appropriate sentencing approach for drug-related offences under the Crimes Sentencing Act 2005 (ACT), the application of deferred sentencing, and the imposition of conditions aimed at rehabilitation and treatment as outlined in the Drugs of Dependence Act 1989 (ACT). The court had to consider the principles of justice, deterrence, and rehabilitation in sentencing, as well as the accused's potential for rehabilitation and the impact of the offence on the community.

The court's reasoning focused on the need for a balanced approach that addressed both the punitive and rehabilitative aspects of sentencing. The court acknowledged the gravity of the offence and the importance of deterring drug-related crimes. However, it also recognised the potential for rehabilitation and the importance of providing the accused with opportunities for treatment and rehabilitation. The court determined that a deferred sentence with specific conditions aimed at treatment and supervision was appropriate. This approach sought to address the accused's drug dependency, reduce the risk of reoffending, and protect the community.

The court ordered that Huat Phay appear for directions on 30 July 2009 and for sentencing on 10 September 2009. The sentence was deferred for 12 months, during which the accused was required to undertake community-based counselling, comply with supervision, and adhere to other specified conditions. Bail was granted subject to these conditions, and Huat Phay was required to report to ACT Corrective Services. The court also ordered that any previous bail orders be vacated and that Huat Phay refrain from using any illicit substances.

Orders

Orders of the court

1. The accused appear before the Court on Thursday 30 July 2009 at 9.30 am for directions.

2. The accused appear before the Court on Thursday 10 September 2009 for sentencing.

3. Pursuant to s 27(2) of the Crimes Sentencing Act 2005 (ACT), sentence be deferred for 12 months until 10 September 2009 on the condition that the accused:

(a) for 12 months undertake treatment order consisting of community based counselling with the Alcohol and Drug Program and any other treatment deemed necessary by the Treatment Assessment Panel;

(b) accept the supervision of the Chief Executive of ACT Corrective Services or his delegate and obey all reasonable conditions;

(d) undertake urinalysis drug screening as directed by the Chief Executive or his delegate;

(e)undertake any program for rehabilitation as directed by the Chief Executive or his delegate.

4.Any previous bail orders be vacated.

5.Grant bail to the accused on the five conditions in Order 3, and on the additional condition that he refrain from using any illicit substance.

6.The accused report today, as soon as possible, to ACT Corrective Services.

7. Noting the consent of the accused, he submit himself for a period of 12 months for the treatment of community based counselling and any other treatment decided to be necessary by the Treatment Assessment Panel pursuant to s 123(3) of the Drugs of Dependence Act 1989 (ACT).

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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