SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: / R v Van Dam HoangCitation: / [2016] ACTSC 183
Hearing Date: / 22 July 2016
Decision Date: / 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
1. 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).
2. The maximum penalty for the first count is 10 years imprisonment or 1,000 penalty units or both.
3. The maximum penalty for the second count is two years imprisonment or 200 penalty units or both.
The facts behind the offences
4. 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.
5. 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.
6. Analysis of the balls revealed a powder substance weighing 14.143gms in which heroin was detected.
7. 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.
8. Analysis of these balls revealed a powder substance weighing 27.854gms and again heroin was detected.
9. On 12 March 2015, another arrangement for the purchase of heroin balls was made. Once again, the officer and the offender met in O’Rourke Street. On this occasion there were several balls for which a price of $16,500 was agreed. After an amount of money was handed over plain-clothes police officers approached the offender who, on observing the officers, threw the balls into the front garden of a house on O’Rourke Street.
10. The offender was arrested after a short struggle. The struggle is the basis of the second count.
11. Four heroin balls were located in the garden into which they had been thrown. They contained a powder substance weighing 28.646gms. Once again heroin was detected in the powder.
12. A search, under warrant, revealed $3,250 in the offender’s wallet and a further $6,500 at his partner’s home. Electronic scales and duct tape were also located.
13. There was some evidence given about a Lexus motor car of which I take no account. There was no evidence about how old the motor vehicle was when it was purchased. The fact that it was a Lexus is meaningless.
14. After arrest the offender was in custody for 18 days.
15. The offender entered pleas of guilty on 3 December 2015.
Objective seriousness of the offences
16. The trafficking of illicit drugs is always a serious matter. This is reflected in the maximum penalty which is in itself an indication of the seriousness of the offence (Muldrock v The Queen [2011] 244 CLR 120 at 133).
17. The offender has a driving conviction but no previous convictions for drug matters. He did, however, have little trouble in fulfilling the orders made by the police officer and he had access to implements, like the electronic scales, to assist in his drug dealing. He could probably be best regarded as a low to mid-level drug trafficker.
18. In my view, the drug offence can be described as being of medium severity. The facts constituting the second count, namely the short struggle with the police officer, can be regarded as being of minor objective seriousness.
Subjective circumstances
19. The offender was born in Vietnam in 1972. He came to Australia when he was 19 years of age. He told the author of the Pre-Sentence Report that he had a difficult upbringing, “primarily due to the effects of poverty”. He reported that his father was a difficult man who drank a lot of alcohol. I understand his mother and other relatives remain in Vietnam and are generally supportive of him although they do not know about these offences.
20. The offender currently lives with a partner with whom he has one child. There are also step-children living in the home. The offender was previously married and has three now adult children from that marriage. He is in regular contact with those children although relations with his former wife are difficult.
21. His eldest son, Michael, gave evidence. He was a very impressive young man who described the encouragement he had from his father to be better educated. He also described his father's involvement with the Vietnamese community and the temple.
22. The offender has limited education but has been in continuous employment whilst living in Australia. The types of work have been varied including being a kitchen hand, a bakery assistant and a self-employed gardener. He generally works in the Vietnamese community because of his limited English.
23. The offender does not abuse alcohol and does not use illicit drugs. In a sense, the latter point can be seen as an aggravating factor as his drug dealing is purely for financial gain.
24. The offender has no physical or mental health problems although the Pre-Sentence Report does refer to problematic gambling. This was confirmed by his son and was clearly a very real issue.
25. According to the Pre-Sentence Report, the offender sees his actions as “a serious error of judgment” but one which was justified by financial hardship. The offender recognised the effect of his offences on the lives of other people, including his family and also those persons who are the victims of drug abuse.
Consideration of sentence
26. The offender does not have the means to pay any financial penalties.
27. The offender does not plainly admit he has a gambling problem but it may well explain, although not excuse, his criminal activity. He has otherwise behaved in a responsible manner and has the responsibility of a young family.
28. I think there are good prospects of rehabilitation which must be taken into account. On the other hand, this sentence must bring home to the offender the seriousness of his conduct and the harm of illicit drugs. Other members of the public must also be deterred from this type of criminal conduct.
29. In addition, as a general statement, it is important to have regard to the objects of the Crimes (Sentencing) Act 2005 (ACT), as stated in s 6 and the purposes of sentencing as stated in s 7. I am also particularly mindful of s 10 which tells the court that an offender should not be sentenced to a term of imprisonment unless no other penalty is appropriate.
30. It is also necessary to have regard to s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT). Drug trafficking is regrettably common and there are a number of authorities dealing with sentencing of comparable offenders. I have paid particular regard to R v Hoang [2015] ACTSC 138, R v Phay [2015] ACTSC 238, and R v Truong [2015] ACTSC 244.
31. There are, of course, important points of distinction with these cases, some of which mitigate in the offender's favour and some of which do not. The one that is of particular significance is that this offender has dealt with a large quantity of heroin, totalling some 70 grams. I note that a trafficable quantity is five grams.
32. As already stated, the offender is entitled to a discount for his plea of guilty. I also take into account his good record and his expression of remorse, although the justification of being in financial difficulty is unfounded. The overall discount should be 25%. He has also already been in custody for 18 days. I am also particularly mindful that this man has a young family and also still has responsibilities to the children of his previous marriage.
33. Submissions on his behalf have suggested an intensive corrections order, but I do not think that is appropriate. I think there must be a sentence of fulltime imprisonment, but I do not think it should be for very long. The offender should be given every opportunity to rehabilitate himself, but also to address what I believe is a continuing gambling problem. Accordingly, I will sentence him to a term of imprisonment, but suspend it after a short period.
Sentence
34. I think the head sentence should be 24 months, which I will reduce by 25 percent to 18 months to reflect a guilty plea.
35. I make the following orders:
1) I confirm the convictions in respect of the two counts for which there has been a plea of guilty.
2) In respect of the first count of trafficking in a controlled substance other than cannabis, namely heroin, I sentence you to a period of imprisonment of 18 months, to commence on 22 July 2016 and end on 21 January 2018.
3) I suspend that sentence from 21 September 2016 until the balance of the term expires on 21 January 2018.
4) I require you to sign an undertaking to comply with the Offender’s Good Behaviour Obligations under the Crimes (Sentencing) Act 2005 (ACT) for the period during which the sentence is suspended. Those obligations are to include obeying the directions of ACT Corrective Services in relation to addressing your gambling problem.
5) In respect of the second count of resisting a Territory official, I sentence you to a term of imprisonment of one month, to be served concurrently with the first count, commencing on 22 July 2016.
I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice ElkaimAssociate:
Date: 26 July 2016
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