R (Cth) v Nguyen

Case •

[2025] NSWDC 164

•

07 February 2025

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R (Cth) v Nguyen [2025] NSWDC 164
Hearing dates: 29 November 2024; 7 February 2025
Date of orders: 7 February 2025
Decision date: 07 February 2025
Jurisdiction:Criminal
Before: R Tupman DCJ
Decision:

For the Commonwealth offences, I impose a term of imprisonment of nine years, with a non-parole period of five years, eight months.

For the New South Wales offences, I impose a community corrections order of two years.

See [57] – [62].

Catchwords:

CRIME — Drug offences — Commonwealth offences — Traffic controlled drug

CRIME — Firearms offences — Unauthorised use/possession of firearm

SENTENCING — Federal offenders — Relevant considerations

SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation

SENTENCING — Sentencing procedure — Agreed facts

SENTENCING — Relevant factors on sentence — Circumstances of offence — Form 1 offences — Maximum penalty — Multiple offences — Totality — Objective seriousness — Purposes of sentencing

SENTENCING — Sentencing procedure — Agreed facts

SENTENCING —Sentencing delays — Unrealistic hearing estimates given to court

Legislation Cited:

Confiscation of Proceeds of Crime Act (NSW)

Crimes Act 1914

Crimes (Sentencing Procedure) Act 1999

Criminal Code (Cth)

Firearms Act 1996

Proceeds of Crimes Act 2002 (Cth)

Weapons Prohibition Act 1998

Cases Cited:

Mill v The Queen [1988] 166 CLR 59

R v Nguyen [2018] WAS CSR 135

Category:Sentence
Parties:

Commonwealth Director of Public Prosecutions (Crown)

Truong Nguyen (Offender)
Representation:

Ms P McEniery (Crown Prosecutor)

Ms C Brain (Solicitor for the Offender)
File Number(s): 2022/00366312

Judgment

  1. HER HONOUR: The offender is before the Court for sentence on three substantive offences. They are a combination of Commonwealth and New South Wales offences and there are both Commonwealth and New South Wales offences to be taken into account as additional matters.

  2. The first substantive matter for sentence is sequence 1, which is the Commonwealth offence contrary to s 302.2(1) of the Criminal Code (Cth), 1995, that on or about 14 June 2016 at Mount Pritchard the offender trafficked in a controlled drug, namely methamphetamine, in a commercial quantity of that drug. The offence carries a maximum penalty of life imprisonment.

  3. When sentencing for that matter he asks that I take into account two additional Commonwealth offences pursuant to s 16BA of the Crimes Act 1914, as follows:

  1. Sequence 20, an offence contrary to s 400.9(1A) of the Criminal Code, that on 14 June 2016 he dealt with the proceeds of crime in an amount less than $100,000, the subject matter of this offence being the sum of $24,200 in cash. If sentenced separately for this offence it has a maximum penalty of two years imprisonment and is an offence capable of being dealt with in the Local Court.

  2. The second additional offence to take into account is sequence 21, an offence contrary to s 308.4(1) of the Criminal Code that on or about 14 June 2016 he possessed substances and equipment for the commercial manufacture of controlled drugs. If sentenced separately this offence carries a maximum penalty of seven years imprisonment.

  1. The second substantive matter for sentence is sequence 5, a New South Wales offence contrary to s 7(1) of the Firearms Act 1996 that on 15 June 2016 at Mount Pritchard the offender possessed a pistol particularised as a Swordfish collectible model Desert Eagle replica pistol without licence or permit. This offence carries a maximum penalty of 14 years imprisonment with a standard non-parole period of 4 years.

  2. When sentencing for this offence he asks that I take into account eight additional offences pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 appearing in schedule to a Form 1 signed by him and on behalf of the prosecution. Each of these additional offences is an offence of possessing an unauthorised pistol contrary to s 7(1) of the Firearms Act. Each of the offences occurred on 14 June 2016 at Mount Pritchard.

  1. Sequence 6 relates to a collectible model Luger 9mm P08 pistol.

  2. Sequence 7 relates to a Swordfish collectible model .375 IN Colt Python pistol.

  3. Sequence 8 relates to a Baretta brand model 92F pistol.

  4. Section 9 relates to a Smith & Wesson revolver pistol.

  5. Section 10 relates to a Baretta 92F pistol.

  6. Section 11 relates to a Baretta brand model 92F pistol.

  7. Section 12 relates to a Colt 1911 pistol.

  8. Section 13 relates to a Colt 1911 pistol.

  1. Each of these additional offences, together with the substantive offence, sequence 5, as I have said, attracts a maximum penalty of 14 years imprisonment with a standard non-parole period of four years.

  2. The third substantive matter for sentence is sequence 14, a further New South Wales offence, contrary to s 7(1) of the Weapons Prohibition Act 1998 that on 14 June 2016 at Mount Pritchard he possessed a prohibited weapon, namely a contract electric shock weapon, without being authorised to do so by a permit. The maximum penalty for this offence is 14 years imprisonment with a standard non-parole period of 5 years. He asks, when sentencing for that matter, that I take into account five additional offences also set out in the schedule to a Form 1 signed by him and on behalf of the prosecution, being sequences 15 to 19 inclusive.

  3. Sequence 15 relates to a contact electric shock weapon. Sequence 16 relates to a contact electric shock weapon. Sequence 17 relates to a flick knife. Sequence 18 relates to a flick knife. Sequence 19 relates to a mace. They are all also offences contrary to s 7(1) of the Weapons Prohibition Act.

  4. They are the matters then for sentence. This is a complicated sentence. There are two sentencing regimes to be considered. When considering sequence 1 and the relevant additional offences I must sentence pursuant to the provisions of part 1B of the Crimes Act 1914 and in particular the matters referred to in s 16A of that Act. Amongst those considerations is, as provided in s 16A(1) that the sentence to be imposed must be of a severity appropriate in all the circumstances of the offence, including after taking into account all of the matters referred to in s 16A(2) of that Act.

  5. When sentencing for the New South Wales offences I must sentence pursuant to the overall and specific provisions of the Crimes (Sentencing Procedure) Act 1999, including consideration of matters referred to in s 21A of that Act, relevant considerations in relation to all of these offences because they have a standard non-parole period and also statutory provisions relating to the impact on the length of any sentence of the timing of the pleas of guilty as a result of the operation of the, entirely inappropriately named, Early Appropriate Guilty Plea scheme (EAGP Scheme).

  6. In addition to that, this overall sentence must include a consideration of totality, not just a total criminality represented by all of the offences committed by this offender which are before me for sentence but, as will become clear, the total criminality of all of the offences committed by him at the same time, for which he was also sentenced and has served a term of imprisonment in Western Australia. The Court must consider these issues of totality of criminality and total sentence, taking into account the decision of the High Court in Mill v The Queen (1988) 166 CLR 59.

  7. The complexity of this sentence is also made clear by the quite large volume of material tendered on sentence. Fortunately, the agreed statement of facts is not long but the volume of Crown documents extends to 71 pages. The volume of material tendered on behalf of the offender extends to over 150 pages with, yet again, an exceedingly long and repetitious psychological report. When I say “yet again” I am echoing the experience of this Court in relation to the exceedingly long, and increasingly lengthy, psychological reports that are being tendered in these courts in support of sentences which usually contain the same proposition stated on at least two, if not three or more, occasions. This ought to be discouraged. Psychological reports ought to be reports offered by experts in relation to issues involving the psychological condition of the offender and not just an opportunity for a history to be taken, let alone for that history repeated on at least two occasions, and often more.

  8. The psychological report in this case was 21 pages and 77 paragraphs in length. In this sentence the Crown’s written submissions extend to 17 pages with 102 paragraphs. The defence submissions extend to 19 paragraphs with 81 paragraphs. Each of the parties has tendered a summary of what are said to be comparable cases. I make these observations because, yet again, an incorrect estimate of this sentence was provided to the Court. The Court was given an estimate for this sentence by the lawyers of two hours. I record, once again, that which must be well known to lawyers in this Court, that the material tendered on sentence is very rarely made available to the sentencing judge in advance. The time taken to read the material in this sentence would have been at least two hours, if not more, and the sentence here, even allowing for reading to have been done in advance, does not include time in Court for submissions or for the sentencing judge to seek assistance from the parties once the evidence and written submissions have been read and understood, and none of this includes the time required by the sentencing judge to consider the relevant sentence and then the time taken to deliver the sentence in Court.

  9. One of the offences here has a maximum penalty of life imprisonment. That alone should indicate how serious this matter is. An estimate of two hours for a sentence of that type, particularly given the complexities of this sentence, is completely wrong and should never have been given by either or both of the parties to this court for this sentence. This sentence should have been listed for at least three to four hours and probably a day. This is an ongoing problem in this Court and practitioners constantly give inaccurate estimates of sentences. It has a serious knock-on effect to others waiting for their sentences to be reached or to be given a sentence date, for which the time is being extended on a daily basis. It also has a serious impact on the workload of judges in this Court because, as it would also be well known to practitioners in this Court, any judge with a part-heard sentence will also be required to preside over trials whilst waiting for that sentence to be finalised.

  10. It also has an impact on offenders, like the one before me, and his family who come to Court with an expectation, albeit unrealistic, that they will know what the result of their sentence will be on the day the matters is listed. This must stop. I have been making these observations now frequently for at least 10 of the last 29 years I have been sitting as a District Court Judge. Parties must stop giving unrealistic estimates for sentences in particular and in particular in complicated sentences like the matter before me.

  11. That having been recorded, I now move on to set out and consider the relevant matters for this sentence, including the nature and circumstances of the Commonwealth offences as required by s 16A(2) and the relevant facts for the State offences in order to determine the objective criminality. Overall, I accept that the offending relates to the offender’s possession for sale of a commercial quantity of methamphetamine, namely 11.63 kilograms of pure methamphetamine, and his possession of drug-making equipment and paraphernalia, including chemicals and his joint possession of $24,200 in cash, all of which were located by police on 14 June 2016 at two residences with which he was connected. These are the Commonwealth offences, namely sequence 1 and the two additional matters.

  12. At the time those premises were searched, police also located nine imitation pistols, for which he was not licenced or otherwise authorised to possess, and six prohibited weapons. These are the two substantive and additional New South Wales offences. The offences were detected because the offender was arrested in Western Australia on 14 June 2016 for two counts of trafficking in a commercial quality of methamphetamine between New South Wales and Western Australia. He was arrested and charged and pleaded guilty to two Commonwealth offences, also contrary to s 302.2(1) of the Criminal Code. The first was of trafficking a commercial quantity of methamphetamine on or about 7 June 2016. The second was of trafficking a commercial quantity of methamphetamine on or about 9 June 2016. He was sentenced for these two offences in the Supreme Court of Western Australia on 17 July 2018 to a total sentence of 10 years and 4 months with an overall non-parole period of 6 years and 8 months. That judgment is reported as the R v Nguyen [2018] WASCSR 135 and a copy of that judgment is tendered on sentence.

  13. The relevant facts for sentence are before me by way of agreed facts. From those I accept that in June 2016 the offender was living at 8 Hemphill Avenue, Mount Pritchard, which is in Sydney. He was also connected with an address in O’Shannassy Street, Mount Pritchard. On 14 June 2016 he was charged with the two offences of trafficking between Sydney and Perth to which I have just referred. The evidence to support those two charges included that he had packaged two parcels containing methamphetamine at the O’Shannassy Street residence. He arranged the transportation of those parcels to Western Australia via a postal service. For the first parcel he used a false name of John Unwin. He then travelled to Western Australia and collected the assignments under the name of Max, unpacked them, and disposed of the packaging and delivered them to another address in Western Australia.

  14. The subject matter of the two charges after analysis were, as to parcel 1, methamphetamine with a gross weight of 1997.5 grams and a pure weight of 1588 grams and for parcel 2 a gross weight of 3000.1 grams with a pure weight of 2404.9 grams. So, the total methamphetamine the subject matter of both charges was just under four kilos of pure methamphetamine. As I have said, he pleaded guilty to those charges. At the same time, he was charged in Western Australia with two further counts of trafficking methamphetamine, being the subject matter of the drugs which are now the subject matter of sequence 1 before me. He was also charged with what is now sequence 20, the additional offence involving being in possession of the proceeds of crime.

  15. As I understand it, he initially pleaded not guilty to these additional trafficking charges. Again, as I understand it, had he pleaded guilty it would have been open for him to be sentenced for all matters in Western Australia but because of provisions of the Australian constitution, given the indication that he was pleading not guilty to those charges and it was to be committed for trial, that trial needed to be conducted in New South Wales. As a result, these additional Commonwealth charges were withdrawn in Western Australia and recommenced in New South Wales together with the State firearms and prohibited weapons offences for which he also now pleads guilty. None of those of could proceed because he was serving the sentence in Western Australia and was not eligible for release to parole in Western Australia until 13 February 2023.

  16. I will soon set out the history of what occurred, culminating ultimately in his extradition to New South Wales. That would appear to be a very short version of the background of how these offences come before me. As it is clear they were all detected on about 14 June 2016 when his premises were searched after he was arrested in Perth for the other trafficking offences.

  17. The first of those searches occurred at the premises known as the Hemphill Street premises, which was his family home. Police found and seized the following;

  1. About two kilos of a white crystal parcelled in one kilogram sealed bags in a storage cabinet under the staircase;

  2. Under the stairwell on the ground floor about 11 kilos of a white crystal substance, also parcelled in one kilo vacuum-sealed bags, wrapped in plastic shopping bags and concealed in a Martel Cognac box, which itself was contained within a large vacuum-sealed space-saver bag;

  3. $24,200 in cash in separate bundle in the master bedroom;

  4. Eleven phones and a number of SIM cards.

  1. Police also found four replica, imitation, pistols as set out in para 10e of the agreed facts. One of those is the subject matter of the substantive offence sequence 5. The other three are three of the additional nine offences to be taken into account when sentencing him for that matter. Police also located flick knives in the shape of a rifle, which are sequences 17 and 18, referred to in para 10f of the facts, one torch electric discharge device, which is sequence 14, referred to in para 10g of the facts and the subject matter of the first substantive offence, and a mace, which was also a torch and is the subject matter of sequence 19, referred to in para 10h of the agreed facts. Three of those items are amongst the five additional offences to be taken into account which sentencing sequence 14.

  2. Later that day police also searched the residence at O’Shannassy Street, which was the offender’s previous family home. There they found numerous items of glass wear and equipment within the garage. Those items are set out on para 12 of the agreed facts. I do not propose to read them onto the record. There was also evidence indicating the presence of chemicals or that chemicals had been in the premises and the details of those are set out in para 13 of the agreed facts. These are all items or substances for use in the commercial manufacture of controlled drugs.

  3. Police also located in this house a bag which contained plastic containers which themselves contained a crystalline substance, a metal toolbox which contained various receptacles that held a crystalline substance and a number of other receptacles containing a crystalline white substance. The details of these are set out in para 14 of the agreed facts. They also located various other items as set out in para 15 of the agreed facts, including prohibited weapons similar to those found in Hemphill Street and the remaining two additional offences relevant for count 14 and five further replica or imitation firearms similar to those located in Hemphill Street, which are the remaining additional offences to take into account when sentencing for sequence 5. These are all set out in various provisions and various of the subparagraphs and para 15 of the agreed facts.

  4. The crystalline substances found in both premises were analysed. Methamphetamine was found to be present. In the Hemphill address, inside the Hennessy XO box, there was methamphetamine with a gross weight of 1,991 grams, a purity of 80.1%, therefore a pure weight of 1,594.79 grams. Inside the Martell XO Cognac box at the Hemphill premises, there was amphetamine with a gross weight of 10,962.7 grams, with a purity of between 79.8% and 80.1%, thus with a pure weight of 8,772.2 grams. The total pure weight of the methamphetamine found at the Hemphill address therefore was 10,366.99 grams. In the O’Shannassy Street address from the four locations where the crystalline substance was located, the total pure weight was 1,271.8 grams. The total therefore located in both premises, the subject matter of sequence 1, was 11,638.79 grams, so just under 11.63 kilograms of methamphetamine.

  5. It is agreed that the offender was in possession of this drug at both locations for sale. The commercial quantity of this drug is 750 grams, and thus the subject matter of the charge is substantially above the commercial quantity, which is a matter I take into account when assessing the objective criminality. It is also a serious drug of addiction, increasingly used within the community and wreaking havoc both on those who become addicted to it and on the families and other members of the community who pay the price of that addiction or become the victims of crimes committed by those addicts to support their drug addiction. Those who would involve themselves in the distribution of drugs to a significant extent deserve condemnation, and sentences for these offences, such as the one before me, must carry a clear message of deterrence to the community generally so that it is clearly understood that these offences have victims and that significant terms of imprisonment will flow. The fact that Parliament has set a maximum term of life imprisonment for this offence is a further indicator of the seriousness of this offending.

  1. The Court must also take into account when sentencing for sequence 1 the two additional offences. As I have said, sequence 20 involves his possession jointly with his de facto partner of the sum of $24,200 which he admits was reasonably suspected to have been the proceeds of crime. That crime can only have been proceeds of drug crime in the overall circumstances. Sequence 21 amounts to the quite large number of items and chemicals found at the O’Shannassy Street address. I accept from the description, and also the indication of guilt, that these items are all items and chemicals used in the manufacture and refining of prohibited drugs, and specifically methamphetamine, on a commercial basis. This is a serious offence which must be taken into account when sentencing for sequence 1. The objective seriousness of sequence 1 is informed by the following matters:

  1. The quantity is relatively high. Whilst the amount of any drug in such a matter is not the only factor to be taken into account, it is one relevant factor for consideration. Here it is significantly more than the 750-gram bottom limit for offences capable of being charged under this section. There is no evidence here of the estimated value of these drugs had they been distributed into the community, but in the sentence proceedings in Western Australia, for a quantity of just under 4 kilograms, the sentencing judge accepted that at the time, that is, in 2018, the estimated value of those drugs which the offender had trafficked during June 2016 was between 559,000 and 3,992,000 dollars. The total pure weight here is almost three times that. Therefore, I accept that the quantity and value of the drugs the subject matter of sequence 1 is significant.

  2. This is a serious drug of addiction.

  3. The role of the offender is a relevant consideration in determining objective seriousness, or, for the purposes of a Commonwealth offence, the nature and circumstances of the offending. There is no specific evidence about the offender’s role in relation to this 11 kilos of methamphetamine, except he admits that he was in possession of it for sale. I accept that at the very least he was the trusted custodian of a large quantity of illicit drugs which were packaged for the purpose of sale. There is no evidence about where this offender might lie in any hierarchy and whether or not there even was any hierarchy here, but I accept at the very least that he was not a mere storeman for these drugs. The premises in which the drugs were found were the house in which he lived and the house in which he had immediately previously lived.

  4. His connection was significant. His involvement in the earlier actual supply of the drug amphetamine is also a relevant consideration. The sentencing judge in Perth found that he was more than a mere courier for those offences. He found that the offender played a significant role in the intended supply of those drugs, because he had packaged them in New South Wales, arranged for their distribution to Perth, collected them in Perth, and delivered them to an address. There is an inevitable inference that at the same time the offender was undertaking those tasks and then travelling to Perth, he was also in possession of the drugs the subject matter of sequence 1 before me, which he admits he possessed for sale, and which were relatively carefully hidden in two premises and were packaged for sale. From all of this, I accept that the offender knew that he was in possession of a quite large quantity of a drug which he also knew, because of the addiction he had to it at the time, had a high value. He knew he was in possession of it for the purposes of on-sale in due course.

  5. There is some debate about whether the location of closed-circuit television equipment at the premises of O’Shannassy Street is a matter that also is relevant for assessing the objective criminality. The evidence is silent as to where it was found, except in general terms. The Crown’s submission is that it was internal CCTV. The defence submission, which is accurate, is that there is no evidence from which such a finding could be made. I ignore the presence of the CCTV equipment when determining the objective seriousness.

  6. Overall, in the absence of any other evidence, it is not helpful to try and pigeonhole the offender’s role in this drug trafficking. He was, however, neither a mere courier nor a mere storeman. His role is much higher, with actual knowledge that he was involved in the trafficking of a large quantity of methamphetamine which had a very high value. It seems to me that there is an attempt in the written submissions on his behalf to downplay his role to something towards the bottom of the range when assessing roles. I do not accept that that is borne out by the evidence. Even if he were merely in possession of this drug on behalf of another unknown person, he has admitted that he was in possession of it for sale. He was a methamphetamine addict at the time and knew exactly the value of the drug. He knew what it was that he was trafficking.

  7. It was found in two properties over which he had some control. He was in possession of it at the same time he had access in some way, unknown on the evidence either here or in Western Australia, to two quantities of this drug to package and traffic to Perth, and he did so. None of this indicates a very low-level involvement in the trafficking of this drug, even if it was only on the basis of possession for sale. Even if it were just mere possession for sale, he was trusted with the possession of a very large and valuable amount of this drug. His role is not minimal in this offending, even if there were some sort of hierarchy that existed.

  1. The motive for offending must be found to be for financial gain. I accept that by way of common-sense inference. There was material before the sentencing judge in Perth in relation to his motive for committing the actual trafficking offences, which were said to be in order to repay, to some extent, a large debt he had accumulated because of his addiction to drugs and also to enable him to gain some access to it. I do not understand that any similar proposition is put on this sentence. I do accept, however, as a matter of common sense, he was involved in this for financial gain, albeit that there is no specific evidence about what that was. Another factor which further informs that finding is the location of $24,200 in cash found in the premises, even though apparently that was jointly in the possession of him and his de facto at the time.

  2. For all of those considerations, sequence 1 is a serious offence and it is not a low-level instance of this offence. To the extent that it is necessary to find, I accept it as around about the middle of the range of offences capable of being charged under this section. I am required to take the two additional offences into account, to do so in the same way that is relevant for a form 1 offence in New South Wales, which means I must take them into account in a meaningful way and, where appropriate, the way that that would occur would be to increase what might otherwise be the appropriate sentence.

  3. Dealing with the suspected proceeds of crime offence, sequence 20, it seems to me it is a relatively low-level instance of that offence. It is only elevated to any extent because the crime with which it was reasonably connected involved the supply or trafficking of drugs or at least had an involvement with the supply or trafficking of drugs. It is not a minor amount of money but nor is it very large. It is instructive to access the statistics kept by the Judicial Commission in relation to offences charged under this section. This is an offence that is capable of being dealt with in the Local Court, but for any such offences dealt with in this Court, there is not one sentence of imprisonment full-time imposed. For those offences dealt with in the Local Court, there are only four sentences imposed involving full-time imprisonment, and the vast bulk of other sentences are significantly lower than that.

  4. Taking all of those matters into account and the circumstances in which that offence was committed, it seems to me that this offence, even though taken into account, would not and should not increase what the relevant penalty would otherwise be for the substantive matter. The other offence is slightly more serious and also has a higher maximum penalty were it to be sentenced separately. The amount of equipment and chemicals was significant. He had control over both the premises. They had clearly been used for the purpose of manufacture. However, he is not charged with manufacturing any drug and there is no evidence that places him in such a position. It will elevate the sentence a little but not to any great extent.

  5. I now turn to look at the New South Wales offences. Each of them carries a maximum penalty of 14 years. The one involving a pistol, has a standard non-parole period of 4 years. The one involving the prohibited weapon, a standard non-parole period of 5 years. Each of these two substantive offences, in my view, is very much at the bottom of the range for offences capable of being charged under the relevant section.

  6. Sequence 5 involves one replica pistol and Sequence 14 involves one contact electric shock weapon. There is nothing more to explain what that means apart from that description. Whilst each of them falls within the relevant definition of pistol or prohibited weapon, there is no evidence, as I see it, that any of the pistols, in any event, was capable of being used. The prohibited weapons, on the face of it, may well have been capable of being used. Two of them were flick knives. Whether or not the electric shock weapons were capable of being used is not known on the evidence. And as I understand it, the mace was like a baseball bat, also a torch. There is no evidence about how they were acquired by the offender, except in the letter that he has written to the Court.

  7. Whilst the submissions on behalf of the Crown are that the Court should be cautious in accepting untested assertions by an offender, either in such letters or in histories given to psychologists, the letter was tendered and received by the Court without objection and he was not required for cross examination. I accept from that letter that for all of the replica pistols and offensive weapons, he bought them all in circumstances where he did not realise that they were either replica pistols or prohibited weapons and that they would therefore be contrary to a criminal provision. That, of course, is not a defence. They are what they are. They are as they are described and each of them falls into the relevant definition. I accept that he bought them online on mainstream websites and did not buy them on the dark web or any of those places where serious weapons or firearms are frequently for sale. I accept that one of them was bought at the markets in Fairfield on full display.

  8. The subject matter of sequence 5, the replica pistol, was half size, and whilst there is a submission in the Crown’s submissions that all of the pistols were of a shape and size and dimensions similar to real pistols, I reject that submission given the agreed facts that, for sequence 5, the replica pistol was half size, and for all of the other nine replica pistols the facts are very limited except they are referred to as being of a similar type to each other, which must mean a similar type to sequence 5. I accept, therefore, what the offender says in his letter to the Court, that each of them were either half size or three quarter size or something along those lines. For that reason I accept his assertion that he bought them as novelties without any criminal intent. There is no evidence that he bought them with the intention of using them for any criminal purposes. Each of them was located in various plastic tubs found in places where it is appropriate to refer to them as being kept in some form of storage, it seems to me.

  9. The same applies to the prohibited weapons. Each of them was located in places where they were not on public view or, in any event, not in a way that gives the impression that they were available for immediate use. They were, to an extent, stored. They are not, on the face of them, particularly serious prohibited weapons. Again, I accept that he acquired them in the same way, mainly online but on mainstream websites, where he did not realise it was illegal to possess them. There is no evidence that he acquired them for any criminal purposes nor any evidence that he used them.

  10. Of course, whenever courts are asked to sentence offenders for firearms or weapons offences at the same time as sentencing them for offences of drug supply or trafficking, there is a very clear suspicion that they might well be used in connection with that drug supply or trafficking. It is, however, it seems to me salient to note that in this matter, whilst the offender was in possession of over 11 kilos of methamphetamine in Sydney at the same time as he was physically trafficking the same drug to Western Australia, he does not apparently appear to have had any of those pistols or prohibited weapons in his possession. That increases the likelihood in my finding that he did not possess them for any criminal purpose but they were merely in the house, left there, stored in some way, having been acquired by him in the way he asserts, as a form of novelty, not knowing that it was illegal to possess them. That lack of knowledge, of course, does not amount to a defence, and that is the reason why he has pleaded guilty.

  11. The fact that there is more than one of each category of pistol or prohibited weapon does not, in my view, increase the objective criminality of the relevant substantive offence. I have determined that in those overall circumstances the threshold for imprisonment is not crossed for either sequence 5 or sequence 14, and I will be dealing with each of those by way of a community corrections order.

  12. I now turn then to his current circumstances. Given the vast bulk of material that has been tendered on his behalf, I could probably spend the next hour or two going through that material but I do not propose to do so. I have already commented on the excessive length of the psychological report before the Court. There is also a long letter from him. I do not criticise the length of that letter. The content is useful to the Court. The letter from his sister is possibly also too long. There are a number of references. There are certificates also. There is also the material, of course, from Western Australia and some medical records. I have read all that material and I have taken it into account. But to a very large extent, apart from the updated material from his psychologist, himself and his sister, I also am very much assisted and informed by the findings made in the Court in Western Australia when he was sentenced there.

  13. Before I move to the personal circumstances, however, I deal with his current custodial circumstances. He remains in custody. He was eligible for release to parole on 13 February 2023 in Western Australia, but that was refused on 12 February 2023 solely on the grounds that it was anticipated that he would be extradited to New South Wales to face the charges that by then had been laid and which are the matters now before me for sentence.

  14. When he was ultimately released to parole a year later, he was arrested immediately and extradited and appeared in the Local Court in New South Wales on 14 February 2024, on the extradition warrant. He has remained in custody, bail refused, since then. It is not necessary to go into any further detail except that it is appropriate in those circumstances to accept that he has been in custody, bail refused, for these offences alone since his parole was refused on 12 February 2023. Whilst he was also bail refused in Western Australia for a period of time between the date he was charged for the counts that now make up sequence 1 before me, and the withdrawal of those counts, he was also bail refused for the trafficking charges for which he was ultimately sentenced. That sentence was backdated to commence on 14 June 2016 so that all of his time in custody up to the date of sentencing in the court in Perth was taken into account. His time in custody since, as I have said, since 12 February 2023 relates entirely to the matters before me.

  15. I also indicate that it is clear that he has now been in custody for just short of 8 years and 8 months, going into custody on 14 June 2016 and remaining in custody to today. As at Thursday next week, 13 February 2025, he will have been in custody effectively serving an overall non-parole period for 8 years and 8 months.

  16. As I have said, I am assisted by and am grateful for the findings made by the sentencing judge in Western Australia in relation to the personal circumstances of the offender at the time of sentencing then, which was 17 July 2018. They are to be found set out in paragraphs 20 to 24 of the judgment. Whilst they are brief and the other material before the Court today, particularly the psychological report, is extensive, it seems to me they set out sufficient summary of the history of the offender before his arrest in 2016. I adopt the findings made by Justice Corboy in Western Australia in relation to those personal circumstances.

  17. To the extent that there may be some criticism of findings made on the basis of a history given to the psychologist, not only is all of that either borne out by those findings of the judge in Western Australia, but also by other evidence, including the statement made by his sister and other references before the Court.

  18. I accept that a large part of his motivation for committing the offence was because of the addiction to methamphetamine that he had developed for a period of about three years beforehand. He was significantly addicted to that drug at the time. I accept that he committed all of the offences, including being in possession of the drug for sale, at least in some way connected to that addiction and, more probably than not, in some way to help fund that addiction. As to the details of that, there is nothing in the evidence for the offence before me from which I can make any specific finding.

  19. He comes to Court as a person with no prior conviction in New South Wales, and the only matters on his record are those to which I have referred in Western Australia, which are both part of the same overall episode of criminality relevant for sequence 1. Sequences 5 and 14 are not the same episode of criminality as for sequence 1, and as I have already found, it seems to me, are not connected with the criminality comprised in sequence 1. I have also found and repeat that they are a very low objective seriousness in their own terms.

  20. Whilst I do not seek to diminish the vast bulk of other material that is before the Court and a number of the other factors involving his personal circumstances, it seems to me that there is really only one issue in this sentence, and that is how much longer this offender should spend in custody to take into account to a consideration of totality. In doing so, I note and have not ignored the fact of his medical condition from which he has suffered, which led to his suffering from almost a cardiac arrest, but pneumonia just before this arrest in 2016, which apparently repeated in some way when he was extradited to New South Wales, requiring him to go to hospital. There is medical evidence to support all of that.

  21. I also do not overlook, and I accept, that his time in custody has been somewhat more onerous than it might be for others. First of all, his period in custody in Western Australia has been made more serious by the fact that he was a very long distance away from his family and was not able to see them in quite the same way that he might have been able to in NSW. Notwithstanding that, his family remains very close to him and he to his family. His parents are no longer young. They were in the habit of trying to visit him in Western Australia when they could and continue to do so since he has been in custody in New South Wales. I also take into account the fact that his medical condition has been relatively poor whilst he remains in custody, and I accept that he has not been provided with the cardiology treatment which was recommended when he was in hospital at the time of his extradition.

  1. Further, I accept the evidence that since being in custody he has lost eight teeth as a result of decay in circumstances where dental care has not been made available to him. It is a matter of real concern that prisoners incarcerated either here or, for that matter, in another State in Australia are not provided with some form of dental care that might assist their overall medical wellbeing, but that is a reality and that is the situation that he faced.

  2. As I said, however, it comes down to the fact that there is one term of imprisonment for me to impose here, that is in relation to sequence 1, given the findings that I have made in relation to sequences 5 and 14. There is no question but that this must be a term of imprisonment to be served full-time and that that is the only appropriate sentence here and there is no submission to the contrary. He did plead guilty to this offence, albeit late. He originally entered a plea of not guilty in Western Australia on 21 February 2018 for the two offences which now make up sequence 1. There is evidence before the Court that he was offered a plea deal, which would have allowed him to be sentenced for all the Commonwealth offences in Perth at the same time, and in those circumstances, more probably than not, the New South Wales offences would not have proceeded. That did not occur, which is unfortunate. No doubt he was acting on the advice of his legal advisers at the time. In any event, those charges were withdrawn, so that they could be re-charged in New South Wales in circumstances where a plea of not guilty had been indicated.

  3. Again, regrettably, those offences were not re-charged in New South Wales until 20 November 2022, not long before his non-parole period was due to expire. This is a significant delay and there is no explanation for this. He was not granted parole on the first opportunity which arose, which, as I have found, was entirely because of the existence of these charges, the existence of a first-instance arrest warrant and the almost inevitability of extradition. When he was granted parole, he was immediately arrested and extradited.

  4. He has had these charges hanging over his head whilst he remained in custody in Perth. He has been able to demonstrate significant rehabilitation, albeit in custody in Western Australia and to an extent, the sequence 1 before me is in the category of a stale offence, albeit a serious offence. Nothing in the facts tells me when he pleaded guilty to this offence, but researching the file it is clear that he was first before the Local Court on 14 February 2024 and he appears to have pleaded guilty in September 2024 and was committed for sentence either then or shortly thereafter. This is a plea at an early opportunity, which he is entitled to have taken into account, not only as an indication of his willingness to assist the interests of justice, but also to take into account the utilitarian value of that plea. Had he maintained a plea of not guilty, the trial would have been relatively lengthy with police witnesses and other experts being called to give evidence about events that had occurred as long ago as 2016. The fact that he has pleaded guilty means that that has been avoided and he is entitled to a discount for the plea of guilty, taking into account those two matters. Whilst it is not necessary to quantify the discount, I propose to discount the plea of guilty by 25%.

  5. So, as I have said more than once, what this is really all about is not only what this particular offence is worth but also when this sentence should be ordered to commence to take into account totality. When doing so, I take into account the sentence imposed in Western Australia for two counts of trafficking, albeit for a lower quantity of methamphetamine than is the subject matter of this charge. However, it is also the case that those trafficking charges were on the basis of actual trafficking, taking a physical role, a significant physical role, in the actual trafficking of drugs. The trafficking the subject matter of sequence 1 is on the basis of possession for sale. That, of course, is still serious but it is a somewhat different proposition to actual physical trafficking across borders of quantities of controlled drugs.

  6. I have ultimately concluded that before taking into account the plea of guilty, the head sentence for this offence would be 12 years. After a discount for the plea of guilty, that would give rise to a head sentence of 9 years. I will be imposing a non-parole period of 5 years and 8 months, taking into account the two offences on the s 16BA Form when imposing that sentence.

  7. The issue then remaining is when to commence the sentence, and the consideration for the Court is one of totality. As I have said, the question is how much more would the overall sentence have been than that which was imposed in Western Australia had the offender been sentenced for all of these offences at the same time.

  8. In my view, taking into account these considerations of totality, there should be an overall period of imprisonment of 12 years and 4 months with an overall non-parole period of 8 years and 8 months in custody, in other words amounting to effectively an additional 2 years in custody to represent the offence before me. For that reason I will be sentencing him to a period of imprisonment of nine years to commence on 14 October 2019 and expiring on 13 October 2028, with a non-parole period of 5 years and 8 months, commencing on 14 October 2019 and expiring on 13 February 2025. That will mean he is eligible for release to parole on 13 February, namely next week.

  9. That, it seems to me, gives rise to an overall 12 years and 4 months. That is two years more than the head sentence imposed in WA, starting on 14 June 2016, expiring 13 October 28, with an overall eight years, eight months, 14 June 16, ending 13/2/25, which is a nine-year sentence which starts on October 29, expires October 28, and an overall 5 years, 8 months, which starts on October 29, expires 13/2/25.

  10. Before I make the formal orders for sentence, it seems that I have probably overlooked making necessary comments about his prospects of rehabilitation. His prospects of rehabilitation, I accept, are excellent. They were found to be so by the sentencing judge in Western Australia in 2018. He had already by then undertaken significant work towards his own rehabilitation. I accept that he has not used drugs since being in custody and that continues to be the case. He has taken advantage of what is available to him in custody by way of undertaking courses and gaining certificates for that. He has worked in custody in both Western Australia and here in New South Wales, largely in the kitchen or in the bakery. He has work available to him on his release in a bakery operated by a friend. He has, from his own letter to the Court, indicated that part of his motivation for extensive positive rehabilitation is the connection he has had with the chaplains in the prisons, and there is evidence there from those organisations to support his assertions. He now finds considerable solace in religion. He also, I accept, has the ongoing support of his family and will be in a position to live with them when he is due for release to parole.

  11. I’m sorry. I’ve made a mistake. I’ve started both the overall, so the head sentence and the non-parole period in the wrong month. The sentence of 9 years will start on 14 June 2019 and expire on 13 June 2028. The non-parole period will be 5 years and 8 months, commencing 14 June 2019, expiring 13 February 2025.

  12. For sequences 5 and 14, in each case he is convicted and sentenced to a community corrections order, in each case for a period of 2 years, to come up for sentence if required, subject to the standard conditions together with the condition that he accept supervision of Community Services as thought necessary by that organisation. And for each of them I’ve taken into account the relevant Form 1 offences.

  13. I should also withdraw and correct a comment that I made during this judgment about what the overall sentence should be. The overall sentence, taking into account the issue of totality, should be a period of 12 years simpliciter, not 12 years and 4 months. 12 years, but with an overall non-parole period of 8 years and 8 months, which I give effect to by a period of nine years imprisonment, commencing on 14 June 2019, expiring 13 June 2028, with a non-parole period of 5 years and 8 months, commencing 14 June 2019, expiring 13 February 2025. That then fixes up some errors which really mainly occurred because of having to add up too many figures late in the afternoon on a Friday.

  14. In relation to the forfeiture orders, they are here. There are short minutes of orders, and they are all the prohibited weapons and pistols.

  15. I make orders in terms of short minutes of order 1 pursuant to the Confiscation of Proceeds of Crime Act (NSW) 1989 in relation to all of the property the subject matter of Sequences 5 and 14 and all of the additional offences connected to those sequences. I also make short minutes of order 2 pursuant to section 316 of the Proceeds of Crimes Act 2002 (Cth) in relation to the proceeds of crime, cash, the subject matter of sequence 20.

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Decision last updated: 06 May 2025

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