R v Hoang [2015] ACTSC 138

2. Nhan Van Hoang be sentenced to imprisonment for two years and one month from 17 May 2015 to take into account the 12 days of pre-sentence custody

3. A non-parole period of eight months be set, to commence on 17 May 2015 and to end on 16 January 2016.

4. It be recommend that the Sentence Administration Board, if they grant Nhan Van Hoang parole, give consideration to requiring him to undertake gambling counselling through an agency such as Relationships Australia, though that will require the use of an interpreter.

CRIMINAL LAW - Judgement and Punishment - Trafficking in a controlled drug other than cannabis - Sentencing - Gambling addiction - Language barriers - General deterrence

Crimes (Sentencing) Act 2005 (ACT), ss 7, 33(1)

Evidence Act 2011 (ACT), s 138

Bui v The Queen [2015] ACTCA 5

Lawrence v The Queen [2007] ACTCA 10

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

R v Bennett aka Fleming (Unreported, Supreme Court of the Australian Capital Territory, Gray J, SCC No. 406 of 2009, 13 April 2011)

R v De Simoni [1981] HCA 31; (1981) 147 CLR 383

R v Foley [2001] ACTSC 109

R v Grossi [2008] VSCA 51; (2008) 23 VR 500

R v Hagen [2014] ACTSC 129

R v Hoang (Unreported, Australian Capital Territory Supreme Court, Miles CJ, SCC No. 17 of 2000, 9 May 2000)

R v Hoang [2015] ACTSC 17

R v Klobucar (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, SCC No. 186 of 2010, 19 September 2013)

R v Nguyen (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, SCC No. 220A of 2009, 5 April 2012)

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

R v Silkeci (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, SCC No. 19 of 2008, 16 February 2011)

R v Stott (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, SCC No. 214B of 2009, 24 October 2011)

R v Trong Ruyen Bui [2014] ACTSC 182

R v Van Gieng Bui (Unreported, Supreme Court of the Australian Capital Territory, Burns J, SCC No. 265 of 2011, 5 December 2011)

R v Verdins [2007] VSCA 102; (2007) 16 VR 269

R v West [2015] ACTSC 132

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Publishing, Washington DC, 2013) 5th ed

1. As a result of undercover operations conducted by the Australian Federal Police in the Queanbeyan and ACT areas and a controlled purchase of drugs, Nhan Van Hoang, the accused, was arrested on 26 April 2013 and charged with trafficking in a controlled drug other than cannabis, namely heroin.

2. He was initially remanded in custody but, on 7 May 2013, after spending twelve days in custody, was granted bail. He has, as I understand it, been on bail since that day.

3. On 6 February 2014, he was committed to this Court for trial.

4. By Application in Proceedings filed on 13 October 2014, Mr Hoang made an application to the court for the exclusion of evidence obtained as a result of the undercover operation. On 13 February 2015, Penfold J dismissed the application: R v Hoang [2015] ACTSC 17.

5. At that stage, the trial had been listed to commence on 16 March 2015. As a result of the dismissal of the application to exclude evidence, however, Mr Hoang entered a plea of guilty and the proceedings were adjourned for sentence to 24 April 2015.

6. Trafficking in a traffickable quantity of heroin is an offence against s 603(7) of the Criminal Code 2002 (ACT) and renders Mr Hoang liable to a maximum penalty of 1,000 penalty units (that is, at the time, a fine of $110,000) and imprisonment for 10 years.

7. In early 2013, NSW and ACT police conducted an undercover operation in the Queanbeyan ACT area involving an undercover operative (UCO) with Edward Mapiva and his partner, Sandra Miller, known as "Sandy". Mr Mapiva did not know the status of the UCO nor that conversations between himself and the UCO were being covertly recorded.

8. The operation was conducted in reliance on relevant legislation, details of which I do not have to consider. Penfold J, in R v Hoang, held that the authority was valid for authorising the operation. Thus, the activities of the UCO were protected by the authority and, therefore, not an impropriety or contravention of an Australian law and not subject to s 138 of the Evidence Act 2011 (ACT). Indeed, her Honour went further and held that, had there been an impropriety or contravention, she would have concluded that, in the particular circumstances of the case, the desirability of admitting the evidence obtained outweighed the undesirability of admitting evidence that had been obtained in the way in which it was obtained.

9. Covertly recorded telephone intercept material showed that Mr Mapiva contacted Mr Hoang at about 1.36 pm by text message asking him to answer his phone or ring urgently.

10. Shortly after, Ms Miller rang Mr Hoang and he answered. Ms Miller put him on to Mr Mapiva and the following conversation occurred:

11. About a minute later, Mr Mapiva rang Mr Hoang again on Ms Miller's phone and the following conversation relevantly occurred:

12. Mr Mapiva and the UCO had entered an arrangement whereby the UCO would provide Mr Mapiva with $7,500 to purchase heroin and Mr Mapiva would pay Mr Hoang $6,500 for the heroin and retain $1,000 for himself.

13. Mr Mapiva and the UCO then drove to a pre-arranged location on Coppins Crossing Road in the ACT. Shortly after 2:00 pm, Mr Mapiva rang Mr Hoang on Ms Miller's phone about their arrival. Shortly after, Mr Hoang arrived at the location and Mr Mapiva got out of his car and got into Mr Hoang's car. As agreed between Mr Mapiva and the UCO, the UCO drove a short distance up the road.

14. In Mr Hoang's car, Mr Hoang handed Mr Mapiva a bag of powder in exchange for the $6,500. Mr Mapiva got out of Mr Hoang's car with the bag of powder and was shortly after collected by the UCO and both drove away.

15. Mr Mapiva was later arrested in Queanbeyan in possession of $1,000 and the bag of powder which was sent for analysis. It was found to be heroin with a total weight of 27.8 grams and a purity of 25.5%, that is 7.09 grams of pure heroin.

16. ACT police arrested Mr Hoang and found the $6,500 and a mobile phone in his car. Some small packets of heroin were also located under the driver's seat, behind the sun visor and in the glove compartment. The total gross weight of the packages was 2.90 grams. If the purity was the same, they would have contained 0.74 grams of heroin. Mr Hoang also had approximately $2,000 on him which he stated he was carrying because he owed a debt to an undisclosed person.

17. I had a Pre-Sentence Report and Mr Hoang's daughter gave evidence before me. On this material and from the submissions of counsel I can make the following findings.

18. Mr Hoang was born in 1963 in Vietnam the third of six children of his parents. He is now 52 years old. His family were close and he had a positive relationship with his parents. His father died in 2001.

19. He completed high school in Vietnam and then moved to Russia to study as a mechanic. He stayed there for six years and then found that he could not return to Vietnam and became a refugee. He travelled via Hong Kong to arrive in Australia as a refugee in 1991. He first established himself in Queensland but soon moved to Canberra.

20. He married in 1989 and there were four children of the marriage. Some were born overseas and some in Australia.

21. The marriage suffered from conflict, particularly due to financial problems a result of his gambling, as discussed below (at [25]-[28]; [48]-[53]). The marriage ended in 1995 but there was a subsequent reconciliation in about 2003. The family had periods of living in Sydney and Canberra but, in 2004, Mr Hoang finally separated from his wife and moved to Canberra where he lives independently.

22. His four children live in Sydney but he sees them from time to time and has good contact and positive relations with them. Mr Hoang has provided and provides money to his wife and children, especially when they were studying. They are all generally successful in their vocations and study.

23. Since he has been in Australia, he has been employed in unskilled and semi-skilled positions including ten years in a local bakery. Since December 2014, he has been employed in a halal meat business packing meat. He spends his wages on living expenses and in what he gives his family. He has no significant assets, savings, or debts.

24. He started drinking alcohol when he was about 24 years old but it has proved no problem for him. He has never used illicit drugs and, since his arrest, he has been subject to extensive urinalysis which confirms his abstinence from such use.

25. He has taken full responsibility for the offending, which he knew was wrong. He says he needed money for gambling as well as to support his family. The author of the helpful Pre-Sentence Report says he demonstrated insight into the harm to the community that his offending could cause. He is regarded as at a medium-low risk of re-offending unless he addresses his gambling.

26. He gambles mainly on poker machines but also at the casino. It is a problem and has been a problem for him for some time. He has not yet addressed his gambling.

27. He lives in modest circumstances. His daughter explained that he has a couple of mattresses, a TV, a table and a lounge in his home but otherwise lots of empty rooms. He certainly does not live in luxury or with any signs of wealth. He had a motor vehicle which was confiscated by police but has obtained a further motor vehicle.

28. I accept that, apart from the money he uses for living expenses and to provide for his children, he spends all the money he receives on gambling.

29. Mr Hoang has a criminal record. There are six offences on his record, one being a significant drug offence. Three offences are violence offences and I accept that they were domestic violence offences related to the breakup of his marriage. That does not diminish their seriousness, of course, but they are of a very different type of offence to that for which I must sentence him.

30. In 2000, he was convicted of possessing a traffickable quantity of heroin for the purpose of sale or supply. The sale or supply was proved by the deeming provision in the legislation because of the quantity involved. In that case, R v Hoang (Unreported, Australian Capital Territory Supreme Court, Miles CJ, SCC No. 17 of 2000, 9 May 2000), Mr Hoang had possession of 4.5 grams of pure heroin. He then gave an explanation that his possession of heroin was for the purpose of obtaining funds to indulge in gambling on poker machines or in order to pay off a debt or debts which he had incurred as a result of such gambling.

31. He was sentenced to two years imprisonment to be suspended after six months with a recognizance, himself in the sum of $5,000, to be of good behaviour for a period of two years and to accept the supervision of the Director of Corrective Services during that period and, in particular, to accept direction as to improving language skills and to accept counselling or other directions as to gambling habits.

32. The Pre-Sentence Report said that he had completed this order successfully. The evidence before me, however, was that he did some English language courses but because of his family and life circumstances he found them too challenging to make a significant commitment.

33. So far as the other matter was concerned, he clearly has not managed to address his gambling addiction even to this day.

34. The offence of trafficking in illicit drugs is a serious matter. The maximum penalty, set out above (at [6]), is, as pointed out in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at 133; [31], an indication of the relative seriousness of the offence. In Lawrence v The Queen [2007] ACTCA 10, at [6], the Court of Appeal approved the comments of the sentencing judge there who concluded that:

Drug dealing is a blight upon the Australian community and it seems to me that the consideration for general deterrence require that a custodial sentence, a full-time custodial sentence, be imposed.

35. In Bui v The Queen [2015] ACTCA 5, the Court of Appeal has identified some principles concerning the sentencing of drug offenders, which include the role of an accused, the weight of the amount of drug and the motivation for the offence.

36. In this case, it was asserted by Mr K Archer, for Mr Hoang, and Mr M Reardon, for the Crown, agreed, that Mr Hoang was not a low level street dealer but he was not high up in the chain of supply. It was, therefore, not the most significant role but not the least significant one; he was a mid-level dealer.

37. One issue was whether this was an isolated incident. In one sense, it was not because of his prior offending. That was, however, nearly 15 years ago.

38. Mr Archer, however, submitted that, on the basis of the evidence in the statement of facts, I should find that the transaction was an isolated incident and that this was a mitigating factor. In R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 281; [27], it was held that facts adverse to an accused's interests in sentencing must be established beyond reasonable doubt but facts in mitigation on the balance of probabilities. Mr Reardon submitted that I could find from the materials before me that this was not an isolated incident.

39. It is clear from the telephone conversations, to which I have referred above (at [10]-[11]), that Mr Hoang and Mr Mapiva knew each other. More than that, the coy terms of the conversation which arranged the actual sale show familiarity with the issues of where to meet and for what purpose, without any more specific details needing to be said.

40. In addition, the language that they used showed a degree of familiarity with the transaction when what was referred to was a "big one" which resulted in a reasonably large quantity of substance containing the illicit drug being supplied.

41. These matters, in themselves, would not be sufficient to make the finding as suggested by the Crown. To this, however, it is to be added that packets of heroin were also found in the vehicle even though Mr Hoang maintained that he was not a drug user himself. I further take into account that he remains a chronic gambler and has not been able to manage that addiction.

42. It seems to me that I cannot find, on the balance of probabilities, that Mr Hoang's sale on this occasion was an isolated transaction. I cannot find, however, what other transactions there were in which he was involved and, indeed, accepting what was said in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383, he cannot be punished for other offences with which he has not been charged particularly, in this case, those for which I do not have relevant details.

43. In this case, I am also satisfied that he has no obvious personal wealth and there is no suggestion that he has channelled any wealth obtained from any drug dealing to his family. In the end, any money has been used, apart from living expenses and payments of living expenses of his family, which most likely come from his wages, into gambling. I deal with gambling below (at [48]-[53]).

44. The next issue is the weight of the drug. This was 7 grams of the pure drug which is at the lower end of the range. The traffickable quantity of heroin is 5 grams; the commercial quantity is 2.5 kilograms. Thus, the amount is somewhat more than the amount for which he was convicted in 2000, but not by a particularly large amount.

45. I also accept that, generally, the amount is at a low end of the range for the offence, especially having regard to the amounts the subject of recent offences dealt with by this Court, to which I refer below.

46. The final issue is motivation. It seems to me that, generally, those who traffic in order to feed their own drug addiction are the least serious offenders of what, nevertheless, is a serious offence. Those who traffic in order to gain commercial or personal profit, particularly if they are not drug users themselves, are at the most serious end of this offending.

47. While Mr Hoang is not a drug addict, he did not use the profits for personal gain other than to feed his gambling habit. Although I did not have a psychologist's report, I accept that he has a gambling habit and this was not controverted by the Crown. Nevertheless, the use of such money to feed an addiction seems to me to put the seriousness closer to that of a drug addict who also receives money in order to purchase drugs to feed the addiction. Indeed, many authorities make this equivalence.

48. An addiction to gambling appears as a disorder in the standard reference text, American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Publishing, Washington DC, 2013) 5th ed, commonly known as "DSM-5".

49. As with drug addiction, gambling addiction is not, by itself, a mitigating factor relevant to sentencing. See R v Grossi [2008] VSCA 51; (2008) 23 VR 500 at 513-8; [47]- [57]. That approach is one that has been expressed affirmed in this Territory. See, indeed, what Miles CJ said in R v Hoang at p 3, namely:

Selling heroin to obtain funds for gambling is not a mitigating factor, although it may provide an explanation for committing the offence.

50. See also R v Foley [2001] ACTSC 109 at [34].

51. There may be, as pointed out in The Queen v Foley at [35], a mitigation if the method by which the addiction was acquired was relevant (e.g. where a person becomes addicted to drugs by virtue of the prescription of pain killers for some medically acquired injury). In R v Grossi, it was also pointed out that the interaction of a depression with gambling may warrant some moderation under the principles set out in R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at 276; [32].

52. None of that is applicable here, although I accept that Mr Hoang's gambling provides an explanation for the offence which means that many of the aggravating features present in such offences are not present here. I accept that Mr Hoang has not become a wealthy person as a result of any drug trafficking. I accept that, while his gambling was not addressed when he was under supervision in 2000 after being sentenced by Miles CJ, it did not appear to bring him into contact with the criminal justice system for about fifteen years.

53. His gambling has already created problems for him in the destruction of his marriage and the sparse circumstances under which he lives. Nevertheless, it is not a mitigating factor in relation to this offence, though it clearly places it into the context against which one can determine its seriousness.

54. Mr Archer provided me with five recent sentencing decisions for this offence. I also found, by reference to them, a number of others. I shall deal with them briefly.

55. Before that, however, I note that Mr Archer also handed up an extract from the ACT Sentencing Database. It shows, that of the nineteen offenders dealt with for this offence in this Territory, 37% were sentenced to full-time imprisonment, 37% were sentenced to imprisonment with a fully suspended sentence, 16% were sentenced to imprisonment with a partially suspended sentence and 5% were sentenced to imprisonment to be served by periodic detention or not sentenced to imprisonment and subject to a Good Behaviour Order.

56. Of the seven sentenced to imprisonment, two received sentences of six years, two received sentences of eighteen months and the other three sentences of five years, thirty-six months and thirty months respectively. This summary, no doubt, included many of the decisions to which reference was made by Mr Archer.

57. Turning then to the cases, I note but do not need to refer in more detail to the earlier sentencing decision of Miles CJ involving Mr Hoang.

58. In Lawrence v The Queen, Mr Lawrence was convicted on his plea of guilty to supplying 39.322 grams of methamphetamine and 0.66 grams of MDMA. Mr Lawrence had no prior convictions for drug offences, but the court held that it was an organised drug distribution arrangement in which he was involved with both "retail" and "wholesale" sales involved. He was sentenced to five years imprisonment for the trafficking in methamphetamine and three years imprisonment for the trafficking in MDMA to be served concurrently with a non-parole period of two years.

59. A decision referred to in some of the decisions handed up was R v Bennett aka Fleming (Unreported, Supreme Court of the Australian Capital Territory, Gray J, SCC No. 406 of 2009, 13 April 2011), in which Ms Bennett pleaded guilty to trafficking in 2.346 grams of methamphetamine and later 4.2 grams of methamphetamine. She had no relevant criminal history but was on bail for the first offence when the second offence was committed. She was a drug addict and the court found that, although the first offence was associated with an attempt to take the drug into the Alexander Maconochie Centre, that was not the purpose for the possession of the second amount of drugs.

60. She was sentenced to nine months imprisonment on the first charge and twelve months imprisonment on the second, partially consecutive, with a total sentence of fifteen months imprisonment wholly suspended and a Good Behaviour Order was made for eighteen months.

61. A decision also referred to in some of the decisions to which I was referred, but not actually handed up to me, was R v Stott (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, SCC No. 214B of 2009, 24 October 2011). Ms Stott pleaded guilty to a charge of trafficking in methylamphetamine when she was detected by surveillance actually supplying 0.474 grams of methylamphetamine to a male and later 1.030 grams of methylamphetamine to another male. Ms Stott was an addict and she was found by the court to be a "user/dealer" or "street level dealer". She had a long criminal history including traffic, dishonesty, damage to property and assault offences as well as a number of drug offences. She was sentenced to twenty-one months imprisonment which, in the circumstances, constituted prison time already served.

62. The next decision to which my attention was drawn was R v Van Gieng Bui (Unreported, Supreme Court of the Australian Capital Territory, Burns J, SCC No 265 of 2011, 5 December 2011), where Mr Bui pleaded guilty to one count of trafficking in heroin. The pure amount of the substance was 1.6 grams though the total amount of substance was 6.838 grams of powder. Mr Bui pleaded guilty and was found to be an addict. Mr Bui was also a gambler. The court found that the proceeds of the trafficking were to enable him to obtain money to pay a gambling debt. He had a limited prior criminal history but one conviction for possession of heroin. He was 54 years old at the time of the offending and was on conditional liberty but he had a diagnosis of a long-standing depressive condition as a result of traumatic experiences in a refugee camp in Hong Kong. He was sentenced to fifteen months imprisonment, six months of which was to be served by periodic detention and the balance suspended and a two year Good Behaviour Order was made with a probation condition and conditions relating to treatment for gambling and drug addiction.

63. In R v Nguyen (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, SCC No. 220A of 2009, 5 April 2012), Mr Nguyen pleaded not guilty to two counts of trafficking drugs. He was found guilty by a jury of trafficking in 71.27 grams of methylamphetamine and 6.159 grams of MDMA. He was a drug addict and had undertaken some rehabilitation but the court accepted that financial gain appears to have been the motive. Mr Nguyen was sentenced to four years and six months for the trafficking in methylamphetamine and two years and six months imprisonment for trafficking in MDMA both to be served concurrently with a non-parole period of two years.

64. The next decision to which I had regard, though it was not expressly drawn to my attention, was R v Silkeci (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, SCC No. 19 of 2008, 16 February 2011), where Mr Silkeci pleaded guilty to trafficking in 85.47 grams of methamphetamine. He was an addict but the trafficking was for financial gain. He had taken some steps for rehabilitation and had no prior convictions. He was sentenced to imprisonment for two years and three months to be served by periodic detention for the first one year and three months and the balance suspended.

65. A co-offender of Mr Silkeci was dealt with in R v Klobucar (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, SCC No. 186 of 2010, 19 September 2013), where Mr Klobucar procured Mr Silkeci to obtain the 85.47 grams of methylamphetamine. He pleaded not guilty but was found guilty following a judge alone trial. The judge found that there was a commercial motive for the offence. Mr Klobucar had a long criminal history, mostly for traffic offences. He was a 44 year old man but currently an addict. He was sentenced to three years imprisonment with a non-parole period of fifteen months.

66. In R v Hagen [2014] ACTSC 129, Mr Hagen was sentenced on his plea of guilty to trafficking in 12.12 grams of methylamphetamine. He had a very bad record including many prior offences of trafficking. There was no express finding but implicitly the motive for the offence was for commercial purposes. He was sentenced to five years and nine months imprisonment with a non-parole period of three years and ten months.

67. The final decision to which I had regard was R v Trong Ruyen Bui [2014] ACTSC 182. The Court of Appeal dismissed an appeal against sentence by Mr Bui. Mr Bui was convicted on his plea of guilty to two counts, one of trafficking in heroin and one of trafficking in methamphetamine. His plea was a late plea entered on the second day of the trial. The amount of heroin was 425.24 grams trafficked over a considerable period. The court found that there was a commercial motive although he was an addict. Mr Bui was sentenced to four years and ten months imprisonment for the trafficking in heroin and fifteen months imprisonment for the trafficking in methamphetamine both sentences to be served concurrently, with a non-parole period of three years and two months being set.

68. I have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). In this case, general deterrence must loom large because of the serious nature of the offence. There is, also, a need for specific deterrence because of the prior offence, similar offending in similar circumstances, although, to his credit, Mr Hoang has not come to the attention of the criminal justice system for some fifteen years. Punishment and denunciation must also play a part.

69. I have had regard to the matters I am required to consider under s 33(1) of the Crimes (Sentencing) Act and, so far as I know these matters, they have been set out above.

70. The objective seriousness of the offence is significant, as I have described it above. It is not, however, in my view, aggravated by commercial motives because, from that perspective, it seems to me that the need to feed a gambling habit is not dissimilar to the need of a drug addict to feed his or her drug habit. Further, the amount of drug involved was at a low range, particularly compared to other similar cases. Mr Hoang's role was that of a mid-level dealer.

71. I have regard to Mr Hoang's subjective circumstances as I have set them out above. Mr Hoang has been in employment for much of the time since he has been in Australia and has supported his family who have been, for the most part, successful in life even after the end of his relationship with his wife.

72. It is of concern that he appears to have taken no significant steps to address his gambling addiction, notwithstanding the condition made by Miles CJ, though I have no evidence of what directions were given by the person supervising him under the recognizance then made by his Honour. Obviously, unless Mr Hoang addresses his gambling addiction, he is at risk of re-offending, as pointed out by the author of the helpful Pre-Sentence Report.

73. I take into account his plea of guilty. While it was not made at a particularly early stage, it was dependent upon the outcome of an application to exclude evidence which, if excluded, would have ended the prosecution. In those circumstances, there is a greater opportunity to accord more significant discount for the plea than the date on which it was entered would otherwise have suggested.

74. I note that Mr Hoang has been found suitable for a community service work condition to a Good Behaviour Order and has been assessed as suitable for periodic detention.

75. Nevertheless, it seems to me that the seriousness of the offence, the circumstances under which it was committed, including the prior matter and the encouragement then for reform which has not been taken, leaves me with no alternative but to impose a period of full-time custody. It is now not possible for me to make a combination sentence which includes full-time imprisonment and periodic detention. Given the possibility of Mr Hoang continuing to work, that would have been an option that I would seriously have considered. That also informs my decision in relation to the length of the non-parole period that I will set.

76. I also take into account that Mr Hoang has limited English. He has an interpreter with him for the sentencing proceedings; indeed, the lack of availability of an interpreter meant that the sentencing had to be adjourned from the date originally set. His family are also located in Sydney which means that he will be somewhat isolated in custody, although they have visited him from time to time.

77. All of this is relevant to the conditions under which he will serve his period of imprisonment and informs my decision as to the period to be set as a non-parole period. I will, accordingly, make a non-parole period that is somewhat shorter than would ordinarily be made.

78. It seems to me also that the fifteen years since his last drug offence do not require a lengthy non-parole period to meet the needs for specific deterrence.

79. I have not been made aware of any rehabilitation options for gambling addiction available in the AMC, though I am aware that there are some in the community, such as through Relationships Australia. See R v West [2015] ACTSC 134.

1. I convict you of trafficking in a controlled drug other than cannabis, namely heroin.

2. I sentence you to imprisonment for two years and one month from 17 May 2015 to take into account the 12 days of pre-sentence custody. Had you not pleaded guilty I would have sentenced you to thirty-two months imprisonment.

3. I set a non-parole period of eight months to commence on 17 May 2015 and to end on 16 January 2016 .

4. I recommend that the Sentence Administration Board, if they grant you parole, give consideration to requiring you to undertake gambling counselling through an agency such as Relationships Australia, though that will require the use of an interpreter.

I certify that the preceding eighty [80] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Refshauge.