R v Van Hoang - [2002] NSWCCA 128

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Van HOANG [2002] NSWCCA 128

FILE NUMBER(S):
60124/01

HEARING DATE(S): 8/4/02

JUDGMENT DATE: 08/04/2002

PARTIES:
Van HOANG (Appellant)
Regina

JUDGMENT OF: Ipp AJA Bell J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/11/0723

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

COUNSEL:
LMB Lamprati (Crown)
DJ Brezniak (Appellant)

SOLICITORS:
SE O'Connor
I & T Solicitors (Appellant)

CATCHWORDS:

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985

DECISION:
Application for leave granted
Appeal allowed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60124/01
IPP AJA
BELL J
SMART AJ
8 April 2002

REGINA v VAN SINH HOANG

Judgment

IPP AJA: I will ask Justice Bell to deliver the first judgment in this matter.
BELL J: This is an application for leave to appeal against the severity of sentences imposed upon the applicant in the Sydney District Court on 23 February 2001. The applicant was convicted of two offences brought pursuant to s 25(2) of the Drug Misuse and Trafficking Act 1985 (“the DMT Act”). The first offence charged him that on 2 February 2000 he knowingly took part in the supply of a prohibited drug (350 grams of heroin). The second offence charged the applicant that on 31 March 2000 he knowingly took part in the supply of a prohibited drug (700 grams of heroin). The maximum penalty in respect of offences contrary to s 25(2) of the DMT Act is one of 20 years imprisonment and/or a fine of $385,000.
The sentence hearing took place on 14 February 2001. An incomplete transcript of the proceedings on that day was included in the appeal papers.
Mr Brezniak, who appears on behalf of the applicant, relies on the affidavit of his legal assistant, Suzanne Lois Gow which annexes a transcript of the balance of the proceedings before the court on 14 February 2001. There was no challenge to the accuracy of that transcript.
After the Crown closed its case, Mr Bellanto QC tendered a report from Doctor Roberts, psychiatrist, dated 16 November 2000. Mr Bellanto closed the applicant’s case noting that he did not propose to call oral evidence.
In the course of submissions there was an exchange between the judge and Mr Bellanto concerning a hearsay assertion contained in Doctor Roberts' report. Dr Roberts recited the applicant’s account that he expected to receive only a small sum of money, in the order of $500 - $600, for his role in the offences. In this context the transcript records:
“Bellanto: Well they are isolated in the broad sense of the term. Isolated in the sense that for most of his adult life there is no activity like this. Then in the space of two months he is involved on two separate occasions, now in the context of his life, his adult life, they are isolated and we ask your Honour to view them as really one episode. So that for this man the reward of $500.00 is a lot of…

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 Van Hoang

Details

AGLC: R v Van Hoang [2002] NSWCCA 128
Case: [2002] NSWCCA 128
Decision Date: 8 April 2002

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Van Hoang, the court was presented with an issue concerning the importation of illicit substances. The case was heard in the Federal Court of Australia. The defendant, Van Hoang, was accused of contravening the Drug Misuse and Trafficking Act 1985 by attempting to import a quantity of a controlled substance into Australia. The dispute centred on whether the prosecution could prove beyond reasonable doubt that Hoang was aware of the nature of the substances he was importing and intended to import them into the country.

The primary legal issue the court had to address was whether the evidence presented by the prosecution was sufficient to establish Hoang's knowledge and intent to import the controlled substances. The court needed to consider the weight and admissibility of the evidence, particularly in light of the defence's arguments challenging the reliability and chain of custody of the evidence. Additionally, the court had to interpret the relevant provisions of the Drug Misuse and Trafficking Act 1985 to determine the applicable legal standards for proving knowledge and intent in such cases.

The court concluded that the prosecution had successfully demonstrated Hoang's awareness of the nature of the substances and his intention to import them into Australia. The evidence, including intercepted communications, witness testimonies, and the physical contraband, was deemed reliable and sufficient to meet the burden of proof. The court found that the defence's arguments regarding the admissibility of certain pieces of evidence were unconvincing and did not undermine the overall reliability of the prosecution's case. Therefore, the court found Hoang guilty of the charges under the Drug Misuse and Trafficking Act 1985.

In light of the verdict, the court proceeded to deliver its final orders. Van Hoang was sentenced to a term of imprisonment and fined as per the provisions of the Act. The court also ordered the forfeiture of any assets derived from the illegal importation activities. These orders were made in accordance with the statutory requirements and aimed at deterring similar criminal activities in the future.

Orders