Citation: R v Hoang [2001] NSWCCA 485
Court: New South Wales Court of Criminal Appeal
Date: 30 November 2001
Judge(s): Hidden J; Newman AJ
Background
The applicant was convicted in the District Court of supplying heroin, following a trial in which the Crown relied on the deemed supply provision under the Drug Misuse and Trafficking Act 1985. Police had found him at the scene of a road accident near Goulburn in possession of 54.8 grams of heroin, which he had attempted to conceal. He declined to be interviewed and maintained his innocence after the verdict.
The sentencing judge imposed five years imprisonment with a non-parole period of two and a half years. In his remarks on sentence, the judge noted there was no evidence the applicant was himself a drug user and characterised him as a "dealer" acting out of greed rather than to feed a personal addiction.
The applicant sought leave to appeal against that sentence, arguing the characterisation as a "dealer" was not supported by the evidence and amounted to a sentencing error.
Legal Issues
- Whether the sentencing judge erred by characterising the applicant as a "dealer" acting for financial gain, when the jury's verdict established only that he possessed heroin for supply, without specifying the nature of that supply.
- Whether the sentence was otherwise manifestly excessive (this ground was not pressed on appeal).
Decision
The Court of Criminal Appeal found no appealable error in the sentencing judge's characterisation. Hidden J observed that, read in context, the judge was not making a precise finding about the applicant's exact role. Rather, the judge was satisfied that the applicant had been involved in dealing for profit and could not rely on addiction as a mitigating factor.
The Court noted that, while "supply" does not necessarily mean "sale" under the Act, the quantity of heroin found made it readily available to conclude the applicant was acting in expectation of financial gain. The applicant's counsel raised the possibility he was acting merely as a courier, but the Court held that even a courier role would involve participation in a transaction for profit.
The Court also drew on the High Court's decision in Olbrich, noting that the precise nature of the applicant's enterprise was neither possible nor necessary to determine for sentencing purposes. Although the word "dealer" may have been used loosely by the sentencing judge, this did not constitute an error warranting interference with the sentence.
Leave to appeal was granted, but the appeal was dismissed.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing court does not err simply by describing a drug offender as a "dealer" where the quantity possessed is consistent with supply for financial gain, even if the jury's verdict established possession for supply only in general terms.
- Where an offender has no evidence of personal drug use and is found with a substantial commercial quantity of heroin, the inference that they acted for profit is readily available at sentencing.
- A courier role, if established, would not necessarily reduce an offender's culpability below that of a dealer for profit, since a courier remains a participant in a commercial transaction.
- Under the authority of The Queen v Olbrich (1999) 199 CLR 270, a sentencing court is not required to make precise findings about the exact nature of an offender's enterprise where the evidence does not permit such specificity.
- The Court of Criminal Appeal affirmed the distinction, drawn from R v Tulloh, between a user-dealer supplying drugs to fund a personal addiction and a trafficker acting purely for greed, with the latter being treated as more culpable.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 29 (deemed supply)
Cases
- R v Tulloh, NSW Court of Criminal Appeal, unreported, 16 September 1993
- The Queen v Olbrich (1999) 199 CLR 270