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Court of Criminal Appeal 14 December 2020

Hoang v R

[2020] NSWCCA 324

DrugsFraud & dishonestyPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE SUPPLY PROHIBITED DRUG DEAL WITH PROCEEDS OF CRIME PARTICIPATE IN CRIMINAL GROUP APPLICANT 67 YEAR OLD WOMAN

Citation: Hoang v R [2020] NSWCCA 324
Court: NSW Court of Criminal Appeal
Date: 14 December 2020
Judge(s): Payne JA; Beech-Jones J; Fagan J

Background

The appellant was a 67-year-old woman who pleaded guilty in the District Court to three offences: supplying a large commercial quantity of methamphetamine (1.0946kg), dealing with $200,000 in proceeds of crime, and directing the activities of a criminal group. Police had identified her as the head of a drug supply syndicate operating in Sydney and Perth from at least September 2014 until her arrest in April 2015.

The District Court imposed an aggregate sentence of 13 years imprisonment, with a non-parole period of 9 years, commencing from the date of arrest. Indicative sentences were set for each count, with a 15% discount applied for late pleas of guilty. Two further matters were taken into account on Form 1 forms, including an earlier methamphetamine supply and a separate proceeds of crime dealing.

The appellant sought leave to appeal, relying on two grounds: that fresh evidence of her deteriorating health and inadequate medical treatment in custody warranted a reduction in sentence, and that the sentencing judge had failed to give proper effect to the principle of totality when constructing the aggregate sentence.

  • Whether fresh evidence of the appellant's poor health and inadequate treatment in custody, presented for the first time on appeal, justified a reduction in the sentence imposed
  • Whether the sentencing judge failed to give proper effect to the principle of totality when setting the aggregate sentence, resulting in a sentence that was disproportionate or "crushing" in relation to the overall criminality

Decision

On the first ground, the Court accepted that the appellant had a serious and long-standing medical history, including cardiac conditions, diabetes, stroke, and multiple hospital admissions before and during custody. However, the fresh medical evidence tendered on appeal did not establish that her health needs were going unmet in custody to the degree required to affect the sentence. The Court found the evidence insufficient to support the ground and rejected it.

On the second ground, the appellant expressly disclaimed any contention that the aggregate sentence was manifestly excessive, or that any of the individual indicative sentences were excessive in isolation. The complaint was narrower: that the notional accumulation of 2 years and 6 months on top of the principal sentence for count 1 was too great, given overlap in the criminality across the offences.

The Court rejected this argument. It noted that counts 1 and 2 concerned entirely separate drug transactions. The $200,000 the subject of count 2 was banked more than two months before the methamphetamine supply that formed count 1, and the expected $240,000 proceeds from that supply had not yet been received at the time of count 1. There was no meaningful overlap between those two offences that would require greater concurrency.

Taken together, the three counts captured a sustained course of criminal conduct in which the appellant directed a criminal group across multiple transactions over several months. The Court found the aggregate sentence was not disproportionate to that totality of criminality, and was not crushing in any legally relevant sense. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Time for filing the application for leave to appeal enlarged so far as necessary to permit the application to proceed
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Fresh evidence of an appellant's ill-health will not automatically reduce a sentence on appeal; the evidence must establish that health needs are not being adequately met in custody to a degree capable of affecting the proper sentence.
  • The principle of totality, when applied to an aggregate sentence, requires an assessment of whether the total sentence is proportionate to the overall criminal conduct, not merely whether there is some factual overlap between individual offences.
  • Where separate counts concern distinct criminal transactions separated in time, the sentencing court is not required to treat the criminality as substantially overlapping simply because the offences form part of a broader course of conduct.
  • In dismissing the appeal, the Court confirmed that a notional accumulation of 2 years and 6 months added to the principal count's indicative sentence was not excessive where the counts addressed discrete and serious offending spread across several months.
  • An appellant cannot mount a totality challenge while expressly conceding that neither the aggregate sentence nor any of the indicative sentences are manifestly excessive; the contention must be grounded in something beyond the degree of accumulation alone.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) and s 25(2)
- Crimes Act 1900 (NSW), s 93T(1A) and s 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 35

Cases:
- Agnew (a pseudonym) v R [2018] NSWCCA 128
- Iglesias v R [2006] NSWCCA 261
- Khoury v R [2011] NSWCCA 118
- R v Bailey (1988) 35 A Crim R 458
- R v Munday [1981] 2 NSWLR 177
- R v Smith (1987) 44 SASR 587; 27 A Crim R 315
- Springer v R [2007] NSWCCA 289; 177 A Crim R 13
- Turkmani v R [2014] NSWCCA 186; 244 A Crim R 402