R v Huynh
[2018] ACTSC 67
•8 March 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Huynh |
Citation: | [2018] ACTSC 67 |
Hearing Date: | 8 March 2018 |
DecisionDate: | 8 March 2018 |
Before: | Murrell CJ |
Decision: | See [17]–[19] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – ss 164(3), 171(1)(a) and 171(1)(b) of the Drugs of Dependence Act – s 172(1) of the Crimes Act 1900 (ACT) |
Legislation Cited: | Drugs of Dependence Act 1989 (ACT) ss 164(3), 169(1), 171(1)(a) and 171(1)(b) Criminal Code 2002 (ACT) Crimes Act 1900 (ACT) s 172(1) |
Parties: | The Queen (Crown) Tony Thanh Huynh (Offender) |
Representation: | Counsel Ms S Saikal-Skea (Crown) Mr T Sharman (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robinson Solicitors (Offender) | |
File Numbers: | SCC 135 of 2017; SCC 136 of 2017; SCC 318 of 2017 |
MURRELL CJ:
The offender is to be sentenced for the offence that on 28 October 2016 he possessed a prohibited substance (MDMA) for sale or supply contrary to s 164(3) of the Drugs of Dependence Act 1989 (ACT).
The offence carries a maximum penalty of five years’ imprisonment.
In addition, he is to be sentenced for six transferred offences involving the possession of other illicit drugs on 28 October 2016. Four of the transferred offences involve the possession of a prohibited substance and carry a maximum penalty of two years’ imprisonment. One offence involves the possession of cannabis and carries a fine of up to $150.00. The offence of possessing an anabolic steroid (s 172(1) of the Crimes Act 1900 (ACT)) carries a maximum penalty of six months’ imprisonment.
The principal offence is not an offence against the Criminal Code2002 (ACT) (the Code), but, in order to provide some perspective on the matter, the Crown has informed me that for offences under the Code the trafficable quantity for MDMA is 10 grams and the commercial quantity is five kilograms. The quantity involved in this case was 39 grams.
The plea of guilty was entered in the Supreme Court on the first day upon which the offender was facing trial on the more serious charge of trafficking MDMA. Given the very late plea, he should receive a discount of approximately 10 per cent on the sentence that I would otherwise have imposed, which will be reflected in one way or another.
Facts
On a number of occasions over three years, the offender used the website, Silk Road, to purchase MDMA. Silk Road is an online black-market platform for selling illegal drugs. Online users are able to browse the website anonymously and securely. The drugs that were purchased by the offender were mailed to him at the Florey address where he resided with his mother.
On 28 October 2016 police executed a search warrant at the Florey house. In the offender’s bedroom, they found, among other things, 39 grams of MDMA in a variety of containers, empty capsules, a spice grinder, and a heat sealer machine. In addition, they found smaller quantities of other illicit substances stored in a variety of containers. Some items that the police seized were in packets in the names of other people.
The offender returned home and spoke to the police, who then arrested him.
Over the preceding few years, the offender had supplied a friend with MDMA “a handful of times”, sometimes receiving a small financial recompense to more-or-less cover his costs. The offender supplied other friends on a similar basis. While money may have changed hands at times, the offender made no profit.
10. The objective seriousness of the main offence is significant. The offence relates to only one date, but it was not an isolated occasion. The offender had accessed the Silk Road website for some years, albeit on an occasional basis.
11. The transferred charges relate to small quantities of illegal substances. The anabolic steroid was testosterone propionate, the quantity being 16.846 grams; the material was contained in two vials. The information before the Court is that the offender had, in the past, used the drug for bodybuilding purposes—at least on an occasional basis.
12. Another of the substances found in the offender’s possession was oxycodone, in the amount of 4.346 grams. To gain some perspective, the trafficable quantity under the Code is 7.5 grams. This indicates that the quantity in the offender’s possession was not insignificant. However, the circumstances in which it came into his possession were that the substance had been prescribed for a family member. When he passed away, the offender took the opportunity to assume possession of the substance.
13. There was a very small quantity of cannabis in the offender’s possession. There were small quantities of other substances that contain THC—the active ingredient of cannabis. In particular, there was a substance containing THC and cannabinol in a quantity of 0.147 grams and a substance containing THC and methaqualone in the quantity of 0.012 grams. That was a very small quantity; the trafficable quantity for methaqualone is 7.5 grams.
14. There was also a substance known as 25I-NBOMe, or “NBombe”, in the quantity of 0.069 grams. The fact that the trafficable quantity under the Code is 10 grams indicates that the quantity in question was very low. That substance is a hallucinogen and the information before the Court is that the offender had used that substance on 10 occasions.
Subjective features
15. The offender is 23-years old (22-years old at the date of the offences).
16. He is of Vietnamese descent but was born in Australia. He is the only child of his parents’ relationship but he has three older half siblings. The offender’s childhood was marred by domestic violence perpetrated by his father. His parents separated when he was 14-years old and he has had no subsequent contact with his father.
17. The offender is in a supportive relationship. He works part-time as a storeman and has completed half of a four year degree in Business Informatics. He has thought about his future and the options available to him given that the conviction that he receives for this offence may affect his employment opportunities.
18. Following his arrest, the offender reflected on his circumstances. From July 2016, he engaged with Directions ACT. He has undertaken 15 sessions of counselling, addressing issues of substance abuse. A report states that he has engaged openly, willingly, and diligently with Directions ACT, which he continues to consult. For a period, he also consulted a counsellor at his university.
19. The offender has made a serious and sustained effort to rehabilitate from drug use, which was at one stage quite significant. He was a polysubstance user for a number of years, up to the time of his arrest. He used Ecstasy when attending rave dance parties—where he would, according to the CADAS report, ingest a very large quantity of the substance. His university results have improved since his arrest because he has not been using illicit substances.
20. He has removed himself from the negative peer group with whom he was associating at the time of the offences.
21. The offender has no prior criminal history.
22. The offender comes before the Court as a relatively young person who engaged in quite a serious—but certainly not the most serious—type of drug offence. Since being arrested, he has undertaken counselling and gained significant insight into his problems and the impact of illicit substances upon him.
23. The five-year maximum prescribed for this offence is not insignificant, but it indicates that the offence before the Court is far from the most serious in the criminal calendar.
24. The offender did supply friends, but the material before the Court does not show that he has profited from the supply of drugs. The supply of illicit substances—particularly MDMA and other so-called “party drugs”—calls for a significant message of general deterrence. People who commit such offences should be held accountable and the offending conduct should be denounced. However, given the offender's age and demonstrated capacity for rehabilitation, rehabilitation looms as a very important sentencing purpose.
25. To address the relevant sentencing purposes, I consider that it is necessary to impose a sentence of imprisonment, but in order to support rehabilitation it is appropriate that the sentence be suspended.
Sentence
26. For the principal offence, I would have sentenced the offender to six months' imprisonment, but for the plea of guilty I have reduced it to five months’ imprisonment.
27. The offender is convicted and sentenced to five months' imprisonment.
28. I make a suspended sentence order, suspending the whole of the sentence for a period of two years.
29. I make an associated Good Behaviour Order that includes the condition that the offender submit to the supervision of Community Corrections for a period of six months and such longer period as Community Corrections may deem appropriate. The offender is to report to Community Corrections by 4:00PM on Friday, 9 March 2018.
30. In relation to the other matters, for each matter where the maximum penalty is two years’ imprisonment and $7,500.00, I impose a fine of $500.00. For the anabolic steroid matter, I impose a fine of $250.00. For the cannabis matter, I impose a fine of $30.00. The combined total is $2,280.00. I allow 12 months to pay.
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