Hoang v R

1. [1]

   McHUGH JA: I agree with Emmett J.

2. [2]

   SWEENEY J: I agree with Emmett J.

3. [3]

   EMMETT J: The applicant seeks leave to appeal against a sentence imposed by King SC DCJ on 22 November 2024 in respect of the following convictions:

   1. (1)

      knowingly take part in the supply of a large commercial quantity of a prohibited drug, namely 22.5 kilograms of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (count 1);

   2. (2)

      supply a commercial quantity of a prohibited drug, namely 141.09 grams of MDMA, contrary to s 25(2) of the Drug Misuse and Trafficking Act (count 2); and

   3. (3)

      supply an indictable quantity of a prohibited drug, namely 156.55 grams of cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act (count 3).

4. [4]

   Two further Form 1 matters were taken into account in respect of count 1, being an offence of supplying a prohibited drug (64 grams of methylamphetamine) and recklessly dealing with proceeds of crime ($29,480).

5. [5]

   His Honour imposed an aggregate sentence of 12 years’ imprisonment, with a non-parole period of 8 years, commencing on 8 December 2022. In determining an appropriate sentence, his Honour did not identify that he placed any weight on the applicant’s evidence that he had been sexually abused as a child. The Crown in this Court contends that is because his Honour did not accept the applicant’s evidence on this issue.

6. [6]

   The proposed grounds of appeal are:

7. [7]

   As this is an appeal against sentence, the applicant needs leave to appeal under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). The sentence sought to be challenged on appeal is substantial. The circumstances of the case, including the length of the sentence and the interests of finality, warrant a grant of leave to appeal. However, for the reasons that follow, the appeal should be dismissed.

Findings of the sentencing judge in relation to the offending

1. [8]

   The applicant was pulled over by highway patrol officers while driving with his mother, his sister and his sister’s young daughter, and a search of the vehicle revealed a large volume of methylamphetamine. In due course, 23 one-kilogram bags of methylamphetamine with a purity of 78% to 79.5% were found in the vehicle. A further search of the vehicle after it had been seized uncovered cash in what was described as a sophisticated electronically operated hidden compartment.

2. [9]

   Police executed a search warrant at the applicant’s home in Cabramatta, where they found further drugs, cash and drug supply paraphernalia. This included the MDMA that was the subject of count 2, the cocaine that was the subject of count 3, and the 64 grams of methylamphetamine and the $29,480 which were the subject of the Form 1 offences.

3. [10]

   The applicant pleaded guilty to the three counts and admitted his guilt in respect of the Form 1 offences.

4. [11]

   The applicant gave evidence before the sentencing judge that he was transporting the drugs, and had some of the items at his home, under duress. He said that he had been obtaining drugs for personal use from a drug dealer whom he had never seen or met, communicating only by electronic messages. According to the applicant, he ran up a debt of some $18,000 and the dealer proposed an arrangement for him to work off the debt by holding items including drugs and money. The applicant said he used some of those drugs, and as a result the dealer became angry, threatened him and said he would have to “fix this”. After that, two large, threatening men were said to have turned up at his door and told him he would have to do a drive for them, and that this led to the applicant being apprehended driving to Queensland with the large volume of methylamphetamine.

5. [12]

   The applicant sought to explain the bags with drug residue and the scales, which had been found at his home, on the basis that after he took custody of the 23 kilograms of methylamphetamine, he was instructed to buy vacuum sealing bags and to re-measure and re-bag the drugs, then mark and label them.

6. [13]

   The sentencing judge found that it was “most unlikely” that a drug dealer the applicant had never seen or met would allow a debt of $18,000 to accumulate. His Honour found it “even more remarkable” that the dealer would, in such a situation, entrust the applicant with drugs and money as a way of “working off” the debt. His Honour also considered that it defied common sense that the dealer, after the applicant used some of the dealer’s drugs without permission, would respond by arranging for the applicant to take unsupervised custody of 23 kilograms in circumstances where he could readily take some of it.

7. [14]

   The primary judge summarised the applicant’s evidence that he had no knowledge of the car having a secret compartment or of the lounge in his bedroom having a secret compartment (being a secret hydraulic compartment in its base, which was empty at the time of the police search). The applicant also gave evidence that when he purchased the lounge, he was given an electronic fob, but he said he did not know what that was for, acknowledging that the lounge had no recline function. While his Honour did not comment specifically on the implausibility of this evidence, it is clear from what follows in the reasons that he regarded this evidence as inherently implausible.

8. [15]

   The primary judge held:

Ground 1

1. [16]

   The evidence before the sentencing judge included two psychological assessments, one by Mr Neil Ballardie dated 11 May 2021 and one by Mr Chafic Awit dated 2 September 2024.

2. [17]

   Mr Ballardie’s report was prepared in the context of previous offending for possession of a prohibited substance and goods in personal custody suspected of being stolen. Mr Ballardie diagnosed major depressive disorder, generalised anxiety disorder and drug use disorder. Mr Ballardie opined that these conditions contributed to the applicant’s offending but that his risk of reoffending would be low to moderate if he followed through with the proposed mental health treatment plan.

3. [18]

   Mr Awit’s report, prepared for the purposes of the proceedings below, diagnosed post-traumatic stress disorder (PTSD), persistent depressive disorder and substance use disorder. The applicant reported to Mr Awit that he had been the victim of sexual abuse by a priest at his school on one occasion when he was 11 or 12 years old. He also said that when he was 16 one of his friends was shot in the chest and that another friend died (either of a heart attack or a drug overdose) when the applicant was 18. He also said he saw someone being shot while he was driving with his mother when he was 17, and that when he was young, he witnessed three men attack another man with machetes.

4. [19]

   According to Mr Awit, the applicant blamed his alcohol and drug abuse on being a victim of sexual assault. Mr Awit’s conclusions on the connection between the diagnosed conditions and the applicant’s offending were as follows:

5. [20]

   It will be observed that Mr Awit’s opinion was based in part on the applicant’s version of events about the drug debt, and in part on the applicant’s report of being a victim of sexual assault and having witnessed “other distressing events”.

6. [21]

   On the evidence, the first time the applicant said he had been sexually assaulted was in 2024. He told his mother four or five months after he had been in custody on remand in respect of the proceedings below, and then made a civil claim for damages, in the context of which a report by psychiatrist Dr Truls Bratten was prepared, also diagnosing PTSD and substance use disorder. The applicant did not place this report before the sentencing judge, although Mr Awit was briefed with it and apparently took it into account.

7. [22]

   In his evidence in chief, the applicant said that he did not mention the alleged sexual assault to Mr Ballardie because he was ashamed and embarrassed, and he did not think Mr Ballardie asked questions to trigger that memory. His explanation for coming to disclose it for the first time in 2023 or 2024 was as follows:

8. [23]

   He said further:

9. [24]

   In relation to his failure to mention to Mr Ballardie his experience witnessing a man being shot or a man being attacked with machetes when he was young, he said “they didn’t trigger me at the time”.

10. [25]

    The applicant was cross-examined about not telling Mr Ballardie about the sexual abuse and the violence that he witnessed. When asked whether he first spoke about sexual abuse after others told him about their abuse, the applicant said:

11. [26]

    In the next question, the Crown introduced a related topic, being that the applicant in his report to Mr Awit reduced the age at which he first consumed certain drugs, as compared to his report to Mr Ballardie to the time when he spoke to Mr Awit. The Crown introduced this topic by saying, “There are also inconsistencies in relation to your drug use between those two reports” (emphasis added). After being taken through these inconsistencies, the applicant said that this was readily explainable:

12. [27]

    Three matters may be observed about these questions and answers. First, the applicant clearly appreciated that it was being suggested to him that his self-report to Mr Awit was not reliable. It is also clear that the applicant understood this challenge to extend to the earlier stated inconsistencies (ie, the sexual assault and witnessing violence), hence the applicant returning to the subject by saying he was “remembering more specific things”. Second, the second question about “exaggerating” came immediately after the applicant had talked about remembering “more specific things”. The question would have been understood as challenging the applicant in relation to the matters about which he had just given evidence. Third, the applicant’s answer about being “cooked or fried” when he saw Mr Ballardie meant that on the applicant’s own evidence his self-report to Mr Ballardie was not reliable.

13. [28]

    After the paragraphs cited at [15] above making findings about the applicant’s offending (and rejecting his explanation for the offending), the primary judge turned to subjective matters. The primary judge identified courses or programs in which the applicant had participated, and then said:

14. [29]

    The primary judge summarised the applicant’s criminal history, concluding that the applicant had a history of being involved in the possession and supply of prohibited drugs, such that he could not receive the leniency afforded to first-time offenders.

15. [30]

    His Honour then turned to the psychological evidence, noting that he had Mr Awit’s report, provided specifically in relation to the offending before the Court, and Mr Ballardie’s report for the purposes of earlier offences. He observed at [67] that “[t]here are some significant divergence[s] between the two reports.” His Honour noted Mr Ballardie’s diagnoses and recommendations for a mental health treatment plan, but observed that there was little evidence of any ongoing treatment by Mr Ballardie.

16. [31]

    The divergence between the two reports is picked up at [70], where the primary judge noted that Mr Awit gave a diagnosis of PTSD whereas Mr Ballardie did not, and that Mr Awit’s diagnosis appeared to be based on the applicant telling Mr Awit about the alleged sexual abuse. The primary judge added, “a matter that he had not told anyone about before speaking to Mr Awit, with the exception of recently telling his mother and instructing solicitors to commence a civil claim. That was not something he reported to Mr Ballardie at all.”

17. [32]

    The primary judge also recorded Mr Awit having been told about the applicant witnessing other events of violence. His Honour said:

18. [33]

    The primary judge then noted that, when the applicant spoke to Mr Awit, his reported ages for first consuming particular drugs were appreciably lower than the ages he gave to Mr Ballardie. The primary judge concluded that topic, and dealt with related topics, in the following terms:

19. [34]

    On a sensible reading of this part of his Honour’s reasons, the primary judge identified three matters that were relevant to the applicant’s evidence either not being relied upon or being dismissed. First, the lowering of his age when he first consumed particular drugs. Second, his assertion about sexual abuse. Third, his evidence about the process of weighing and re-bagging the drugs.

20. [35]

    After dealing with those matters, the primary judge turned to other matters at [82], with the introductory comment, “As to his past history, which I feel I can accept…”. Clearly, his Honour was drawing a distinction between the earlier matters, which he did not accept because the evidence was unreliable, and the matters to which he was turning, which were matters about which he accepted the applicant’s evidence.

21. [36]

    The primary judge made further adverse findings about the applicant’s reliability or credibility later in the reasons. As to remorse, the primary judge said:

22. [37]

    The primary judge’s reference to his “opinion that [the applicant’s] evidence on sentence has little or no credibility” is a statement of broader application than the evidence as to remorse. It is communicating that the primary judge found the applicant’s evidence on sentence to be generally unreliable. Similarly, the primary judge at [95] recorded his observation to the parties at one of the hearings that he had found the applicant’s evidence “both unreliable and unbelievable”. These reasons return to that exchange below.

23. [38]

    When [67], [70] and [78] of the sentencing remarks (dealing with the alleged sexual abuse and the diagnosis of PTSD) are read in their full context, it emerges with adequate clarity that the primary judge was not willing to place any weight on the applicant’s self-reported experiences in his youth, including the alleged sexual assault. One significant reason for this was the applicant’s failure to tell Mr Ballardie about any of these matters in 2021.

24. [39]

    The sentencing judge having rejected the applicant’s self-report, a substantial part of the basis for Mr Awit’s opinion fell away. The applicant in argument before this Court urged that Mr Awit’s opinion could still have been accepted, noting that Mr Awit said that the diagnoses were reached:

25. [40]

    While it may be accepted that Mr Awit’s opinion was based on more than the applicant’s self-reported history, the trial judge’s rejection of the applicant’s evidence as having little or no credibility also affected the applicant’s report of his symptoms (especially where the applicant himself sought to relate those symptoms to his alleged sexual abuse), and the applicant’s report of his offending behaviour (especially the applicant’s report to Mr Awit about the drug debt and the duress).

26. [41]

    The primary judge returned to matters of the applicant’s mental health at [86]-[87]:

27. [42]

    These paragraphs, with the introductory words “I have no difficulty in accepting”, showed that his Honour accepted that the applicant suffered from anxiety and depression, but did not accept the other evidence as to his mental health. His Honour was not obliged to accept either Mr Awit’s or Mr Ballardie’s opinions as to the applicant’s claimed conditions or as to the capacity for the applicant’s claimed conditions to impact his decision-making. While his Honour recognised the link between anxiety, depression and drug use, his Honour did not accept that this contributed to his offending in a material way. This was a natural conclusion given his Honour had rejected as not credible the applicant’s explanation for his offending.

28. [43]

    Ground 1 should be rejected.

Ground 2

1. [44]

   The proper approach on appeal to the adequacy of reasons in a sentencing judgment was set out by Wilson J, White JA and Walton J agreeing, in Taylor v R [2018] NSWCCA 255 at [52]-[56]:

2. [45]

   Consideration of the primary judge’s reasons as a whole demonstrates the adequacy of the primary judge’s reasons in not accepting the applicant’s evidence about being sexually abused or about whether any mental health condition contributed to the applicant’s offending in a material way.

3. [46]

   The applicant gave evidence that was inherently implausible in a number of different respects. The fact that the applicant had never alleged that he had been sexually abused earlier than 2023 or 2024, and that he did not tell Mr Ballardie about the other distressing events he said he witnessed, was relevant to whether the applicant’s evidence was reliable and credible. One significant matter for the primary judge, as indicated at [78], was that the applicant did not raise the alleged sexual assault until after he had been in custody with others who referred to themselves as having been sexually assaulted in their youth. While the applicant tried to explain this in cross-examination by saying that the applicant found his voice and was no longer embarrassed or ashamed after hearing about other people in custody, the primary judge was not obliged to accept this evidence.

4. [47]

   Having rejected these matters and made general findings that the applicant’s evidence was not reliable or credible, it may readily be inferred that his Honour did not accept the psychological evidence based on the applicant’s self-report, save in the limited respects described in the sentencing remarks at [86]-[87], quoted at [41] above. In particular, it followed that his Honour neither accepted that the applicant’s mental health contributed to his offending in a material way, nor that it reduced his moral culpability.

5. [48]

   Ground 2 should be rejected.

Ground 3

1. [49]

   There was no denial of procedural fairness in the primary judge rejecting the evidence that the applicant was sexually abused as a child and that he had PTSD.

2. [50]

   It may be accepted that the Crown in cross-examination did not put to the applicant in terms that he was lying about the sexual abuse. However, as cited above, he was questioned about not telling Mr Ballardie about the sexual assault and the other distressing events. It was also put to him that he was exaggerating in his report to Mr Awit in order to reduce his sentence.

3. [51]

   The Crown’s written submissions were drafted in a manner that clearly recognised that it was a matter for the primary judge whether to accept (or not accept) the applicant’s evidence about his mental health. The written submissions included:

4. [52]

   The first sentence made it clear that the sexual abuse and witnessing of violent events were treated as a “claim”, rather than something that the Crown acknowledged as having occurred. The second sentence is based upon the assumption in the first sentence, that is, that these claimed events “may have” resulted in self-medication. The Crown made the following submission about the applicant’s evidence as to the relationship between substance use disorder and the applicant’s offending:

5. [53]

   The Crown then summarised matters that emerge from DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 and said:

6. [54]

   After further submissions about ways in which the applicant’s mental health “may” or “can” be taken into account, the Crown concluded as follows (emphasis added):

7. [55]

   These submissions were explicitly drafted in a manner that recognised that it was a matter for the sentencing judge whether to accept the evidence about mental health and about any causal connection between mental health and the offending. This reflects the well-established principles that the sentencing judge is not bound to accept particular evidence, even in the absence of challenge, and that it is for the judge to decide what evidence should be accepted or rejected, provided that uncontested evidence should not be rejected capriciously or without a rational basis: Nguyen v R [2025] NSWCCA 42 at [37]-[39].

8. [56]

   The hearings before his Honour only served to reinforce the prospect that his Honour may not accept the applicant’s evidence. The applicant gave evidence and was cross-examined on the first hearing date. During argument after this evidence, the sentencing judge clearly identified the prospect that he may not accept the applicant’s evidence about duress. His Honour also had the following exchange with the applicant’s counsel:

9. [57]

   His Honour was clearly foreshadowing his view that a relationship between anxiety, depression and drug use was “most usual”, but that it did not excuse the offending or necessarily reduce the moral culpability. As is indicated above, that is what emerges from the sentencing remarks. As to the final exchange about De La Rosa, that was no more than his Honour indicating he did not require assistance in relation to the principles in De La Rosa. Construed in full context it should not have been understood as his Honour indicating that he was going to accept the applicant’s submissions about the relevance of the principles in De La Rosa to the case at hand.

10. [58]

    The matter came back before the sentencing judge on 18 September 2024. At the beginning of the hearing, his Honour said the following:

11. [59]

    This invitation was accepted by the applicant’s counsel. After a short adjournment to obtain instructions, the applicant’s counsel led further evidence from the applicant, and the matter was adjourned part-heard to permit an examination of the applicant’s phone. As matters turned out, none of the further evidence obtained was corroborative of the applicant’s version of events, as his Honour observed in his sentencing remarks. However, the first words spoken by his Honour on 18 September 2024 made it clear that he thought the applicant’s evidence was “both unreliable and unbelievable”. At no point did the applicant’s counsel suggest that this was not open to his Honour.

12. [60]

    When the course of the hearings before the sentencing judge is considered in full, the applicant was on notice that his evidence – including about sexual abuse and the other distressing events said to have caused PTSD – may not be accepted. No practical injustice has been demonstrated.

13. [61]

    Ground 3 should be rejected.

14. [62]

    It follows that the appeal should be dismissed.