Regina v Van HOANG [2002] NSWCCA 128

Reported Decision : (2002) 128 A Crim R 422

New South Wales Court of Criminal Appeal

CITATION : Regina v Van HOANG [2002] NSWCCA 128 FILE NUMBER(S) : CCA 60124/01 HEARING DATE(S) : 8/4/02 JUDGMENT DATE : 8 April 2002

PARTIES : Van HOANG (Appellant) Regina JUDGMENT OF : Ipp AJA at 1 & 14; Bell J at 2; Smart AJ at 20

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0723 LOWER COURT JUDICIAL Finnane DCJ OFFICER :

COUNSEL : LMB Lamprati (Crown) DJ Brezniak (Appellant) SOLICITORS : SE O'Connor I & T Solicitors (Appellant)

LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 CASES CITED: Johnson & Johnson [2000] HCA 48; 201 CLR 488 DECISION : Application for leave granted; Appeal allowed

IN THE COURT OF CRIMINAL APPEAL 60124/01

IPP AJA BELL J SMART AJ

8 April 2002 REGINA v VAN SINH HOANG Judgment 1 IPP AJA: I will ask Justice Bell to deliver the first judgment in this matter. 2 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. 3 The sentence hearing took place on 14 February 2001. An incomplete transcript of the proceedings on that day was included in the appeal papers. 4 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. 5 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. 6 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 money bearing in mind his life style, his needs, his general way of life, for a big time drug dealer supplier who drives a fancy car and lives in a luxurious home, obviously it is peanuts, but it is all relevant your Honour and this is why it is significant for him, it was an opportunity to perhaps elevate himself out of the fairly depressing life style that he was living, so that was his motivation, and that is why it is relevant for him that it was only $500.00 or may be $600.00 so although your Honour perhaps understandably may be somewhat sceptical of that, nevertheless it is not.