R v Hoai Phi Peter Nguyen

[2018] NSWDC 425

District Court

New South Wales

Medium Neutral Citation:

R v Hoai Phi Peter Nguyen [2018] NSWDC 425

Hearing dates:

03 May 2018

Date of orders:

03 May 2018

Decision date:

03 March 2018

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

The offender is sentenced to a term of imprisonment of 1 year 6 months. Under s12 of the Crimes (Sentencing Procedure) Act 1999, I order that execution of the sentence be suspended. I direct that the offender be released from custody on condition that he enter into a good behaviour bond for a term of 1 year, 6 months commencing today, Thursday 3 May 2018.

   

By consent, the back-up charge is withdrawn and dismissed.

 I order that the drugs be destroyed.

Catchwords:

CRIME – SENTENCE – Supply of prohibited drug – 13.5 grams of ecstasy

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Category:

Sentence

Parties:

Regina (Crown)
Hoai Phi Peter Nguyen (Offender)

Representation:

Counsel:
Mr Gourlie (Crown)
Mr D McCallum (Offender)

  Solicitors:
ODPP (Crown)
Sage Solicitors (Offender)

File Number(s):

2017/143966

Publication restriction:

Nil

SENTENCE

1. HIS HONOUR: Hoai Phi Nguyen known as Peter Nguyen stands for sentence as a consequence of having pleaded guilty to a charge that on 13 May 2017 at Sydney Olympic Park in this State he did supply a prohibited drug namely 13.5 grams of the drug commonly known as ecstasy.

2. 13 May 2017 was a Saturday. On that day at the Royal Agricultural Society Showground at Sydney Olympic Park there was to be conducted a dance party known as “Midnight Mafia”. These dance parties are referred to in the Judge’s common room at “drug parties”. Police patrolled the entrance to the dance party and had drug detection dogs with them. At 4.50pm the offender approached the entrance to the dance party. A police drug detection dog patrolling the area outside the entrance indicated that the offender might be in possession of a prohibited drug. The police stopped the offender and cautioned him. Initially he denied that he was in possession of any prohibited drug.

3. The offender was then escorted to a pre-designated area for police investigations. The offender then admitted that he had secreted in his underwear a prohibited drug, ecstasy. The offender produced from his underwear a condom approximately ten to 15 centimetres long and four to five centimetres thick. The condom was clear and contained numerous capsules within it. When the condom was untied the police found several smaller condoms within it, each containing the prohibited drug. Inside the last condom the police found four resealable plastic bags, each with a quantity of capsules of brown powder which was determined to be the prohibited drug ecstasy. All told the police counted 200 capsules of the drug.

4. After he was searched the police seized the offender’s mobile telephone. The offender was again cautioned and questioned. He admitted that he intended selling each capsule of ecstasy for between $20 and $30. In an electronically recorded interview later made at the Fairfield Police Station he admitted that the capsules contained the prohibited drug 3-4 MDMA. He admitted that he had those drugs in his possession for the purpose of supplying them. He admitted to the police that he was interested in obtaining a fast financial benefit from the supply of ecstasy. He again admitted that he intended to sell the drugs for between $20 and $30 per capsule. He denied that any of the drugs were for his own personal use. He admitted that he had made some prior arrangements to supply the drug to persons attending the dance party.

5. The gross weight of the prohibited drug within the capsules was 13.5 grams, that is nearly 11 times the indictable quantity and 18 times the trafficable quantity. The commercial quantity of ecstasy is 125 grams, so that the amount was much less than the commercial quantity. If one sold each capsule for between $20 and $30 one could expect to make a gross profit of approximately $5,000. I have been told from the Bar table, without objection, that the offender purchased the drug for $3,000 so that he could have made a profit on this evening, had he not been intercepted by the police, of between $1,000 and $3,000.

6. Antecedent to attending the party the offender’s phone contained text messages from two unknown persons asking to purchase prohibited drugs from the offender. However there is no evidence that he actually supplied anyone prior to his attending the dance party.

7. The offender has spent no time in custody. He has been on bail since 13 May 2017.

8. At the time of this offence the offender was 21 years old. He is now 22. Young people often agree to supply drugs in order to obtain drugs for their own consumption. They become addicted to drugs and, in order to buy more, they agree with the drug supplier to themselves to supply to others, thus shielding the original drug supplier from public purview. This offender’s crime was purely for financial gain, it was highly cynical. He was not a user of ecstasy or any other prohibited drug at the time. The pre-sentence report in this case says that the offender commenced recreational use of cannabis and ecstasy at the age of 18, but the offender also told the maker of the pre-sentence report that he had not consumed any illicit drugs since he was 19 years old. In other words, at the time of these offences, he had been drug free for two years. The offender freely admits that he sold the drugs to make a quick profit to ease a financial situation which might amount to financial pressure, but there is no suggestion that this was absolutely necessary for the offender to support himself or other members of his family. The exercise, as I said, was purely cynical.

9. One might infer from the number of capsules that he took into the dance party that he may have supplied a hundred or more patrons at this dance party. Illicit drugs destroy lives and destroy families. People become addicted to illicit drugs and that eventually leads to ruin, it can also lead to death with people overdosing. It is for this reason that Parliament has prescribed that the maximum penalty for this offence is imprisonment for 15 years and/or a fine of $220,000. However the maximum penalty must be reserved for a most extreme or serious case of an offence of this nature. This was not such a case. The amount of ecstasy was nowhere near the top of the range for the indictable amount as it was much less than the commercial quantity. Fortunately the drugs were detected by the police and were not disseminated. They did not reach anyone. What was intended by the offender to be a money making exercise has indeed led him to lose his initial investment of $3,000.

10. I turn to consider the offender’s personal circumstances: they are all favourable. The offender is now 22 years old. He is a single man. He was born and raised in Western Sydney. He is the middle of three brothers. His parents separated when he was ten and he and his younger brother have resided with their mother for most of the period since that time. However at the time of offending the offender was living with a family friend, rather than with his mother and younger brother.

11. It is perhaps because he was living away from home that there were some financial pressures. As I understand it, the offender had to give money to his mother to help her support herself and his younger brother who had only recently finished school but had now undertaken university studies to become an engineer. The offender at the time was earning about $800 week. Much has happened since that time. The offender has become a qualified and licensed carpenter. He was first licensed in September of last year and since then his wages have increased from $800 a week to between $1,800 and $2,100 per week. By every account before me from his employer, work colleagues and those who are in a position to observe his work, he works extremely hard and he is well regarded in his trade. He is working up to six days per week and his future, to become a builder, is a very promising one.

12. A large number of references indicate this young man’s crime was completely out of character. They also attest to his remorse for his crime as has the offender himself in a letter to me, exhibit 2, and from his comments in the witness box today. I accept that he is highly unlikely to reoffend, that he knows the consequences of selling drugs: if it happens again he will find himself locked up in gaol for a long time. He will also find that his career and his future are ruined by his own stupid decision. The prospects therefore of the offender’s reoffending are almost non-existent, and rehabilitation, I believe, is the inevitable consequence of his determination not to reoffend. However the Court must be concerned, not only with personal deterrence but with general deterrence. Young people must know that if they embark upon the course of action this young man embarked upon, the Courts will be extremely intolerant of their behaviour because Parliament has visited such behaviour with a maximum penalty of 15 years imprisonment.

13. In my view a custodial sentence is called for. In essence that is agreed. Mr McCallum, for the offender, accepted that, and that was the submission of the learned Crown Prosecutor. Statistics available to me from the Judicial Commission indicate that 1,301 cases have been decided for those trafficking ecstasy, less than the commercial quantity. In 6% of cases the offender has been given a bond pursuant to section 10. In 20% of cases the offender has been given a bond pursuant to section 9. In 4% of cases the offender has been given a community service order. In 39% of cases the offender has been given a suspended sentence. In 10% of cases the offender has been given an intensive correction order and prior to the introduction of that penalty, 3% of offenders had been given periodic detention. 1% of offenders have been sentenced to home detention and 17% of offenders have been sentence to imprisonment on a fulltime basis. For those sent to prison on a fulltime basis, the median sentence appears to me to be two years imprisonment and the median non-parole period to be 12 months imprisonment. At the bottom 80% range of those who are sentenced to fulltime custody the head sentence is 18 months imprisonment.

14. The pre-sentence report tells me that the offender is unlikely to benefit from any period of supervision by Community Corrections as there are no current criminogenic factors identified by Community Corrections in its assessment of the offender. One would therefore infer that the offender is unlikely to benefit from intensive corrections order. Although it is not a custodial sentence, an alternative to a custodial sentence is Community service and the offender has been certified as suitable to perform community service. However the offender currently works up to six days a week. If he were sentenced to community service he would have to work on a Saturday or a Sunday each weekend, thereby giving him no time for non-work related activities, including socialisation and the leisure which are necessary for human condition.

15. The offender in my view should be permitted to perform his valuable work as a carpenter in our community and to pursue his career. He has embarked on the purchase of a property at Wakeley, the conveyance for which is soon to be settled. He has obtained a mortgage from the Commonwealth Bank for $552,000 and will be required to repay each month $2,570. As soon as the conveyance is completed the offender will move into that property with his mother and his younger brother, who currently lives in Housing Commission accommodation provided to his mother since his parents separated when he was ten years old. But for this offence this young man could be seen to be a law-abiding, upright, hardworking citizen. His behaviour is, as was submitted by his counsel, extremely foolish and sometimes the Courts can intervene to prevent stupidity ruining the career of the young. However as I have said there must be a sentence of imprisonment imposed to reflect the need for general deterrence and to condemn the offender for his very cynical money-making activity.

16. In my view the appropriate commencement point for a sentence in this matter is to consider a head sentence of two years, I discount that by 25% to account for the offender’s plea of guilty at the earliest available opportunity. Indeed he admitted all the elements of his offending on the day that he was apprehended by the police, that reduces the head sentence to 18 months imprisonment. In the circumstance of the current case I intend to suspend the sentence pursuant to section 12.

17. The offender must realise that it will be a term of the suspended sentence that he be subject to a bond to be of good behaviour for the period of 18 months. That merely requires him to obey the law. If he commit any offence he may be called up and if the offence is such that it cannot be excused by me then the only thing to follow is that the suspension of sentence will be revoked, he will be sentenced to 18 months imprisonment and the only question will be the length of the non-parole period.

18. Hoai Phi Nguyen on the charge that on 13 May 2017 at Sydney Olympic Park in this State you did supply a drug, namely 13.5 grams of 3-4 methylene dioxi-methylamphetamine you are convicted, I sentence you to a term of imprisonment of one year and six months. Under s 12 of the Crimes (Sentencing Procedure) Act 1999 I order that the execution of the sentence be suspended, I direct that you be released from custody on condition that you enter into a bond to be of good behaviour for a term of one year and six months, commencing today. Conditions of the bond are as follows:

1. you are to appear before the Court if called upon to do so at any time during the term of the bond;

2. you are to be of good behaviour;

3. you are to reside at 4/45-49 Salisbury Street, Canley Heights and

4. you are to advise the Registrar of this Court by a pre-paid registered post of any change of your residential address during the term of the bond.

Any other orders sought?

GOURLIE: Yes your Honour.

HIS HONOUR: There’s some back-up charge is there?

GOURLIE: There is a back-up charge which we would seek to withdraw and dismiss your Honour.

HIS HONOUR: Alright. I can’t find the 166 certificate.

GOURLIE: There’s a copy in the Crown bundle your Honour.

HIS HONOUR: I take it there’s no objection to that course?

MCCALLUM: Not at all.

HIS HONOUR: By consent the back-up charge H64705061/2 possession of the drug is dismissed.

GOURLIE: Your Honour we’d also seek a drug destruction order in relation to the drugs.

HIS HONOUR: I take it there is no objection?

MCCALLUM: No.

HIS HONOUR: I order that the drugs be destroyed.

GOURLIE: And lastly your Honour we seek a forfeiture order in relation to the mobile phone which is by consent if I could hand up short minutes of that.

HIS HONOUR: Certainly. By consent, orders in accordance with the consent order which I have executed and left with the papers.

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Decision last updated: 15 January 2019