R v Nguyen

[2024] NSWDC 273

District Court

New South Wales

Medium Neutral Citation:

R v Nguyen [2024] NSWDC 273

Hearing dates:

5 July 2024

Date of orders:

5 July 2024

Decision date:

05 July 2024

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraphs [111]-[113]

Catchwords:

CRIMINAL LAW – sentencing – offences for accessorial involvement in drug cultivation – offence for perversion of course of justice – past assistance to authorities – hardship to family

Legislation Cited:

Crimes Act 1900 (NSW), s 319

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 23

Drug Misuse and Trafficking Act1985 (NSW), s 23

Cases Cited:

Marinellis v R [2006] NSWCCA 307

RvHockey [2006] NSWCCA 146

R v Nguyen [2006] NSWCCA 389

RvPerrier (1990) 59 A Crim R 164

RvWay (2004) 60 NSWLR 168

The Queen v Beckett (2015) 256 CLR 305

Texts Cited:

Nil

Category:

Sentence

Parties:

Office of the Director of Public Prosecutions (ODPP)
Mr Huy Hong An Nguyen

Representation:

Counsel:
Ms S Walsh (ODPP)
Mr D Roff for the Offender

Solicitors:
ODPP
Benjamin Leonardo – The Defenders

File Number(s):

2021/00208620

Publication restriction:

Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) the parts of these reasons for judgment which are marked as redacted are not to be published

REMARKS ON SENTENCING

Introduction

1. Mr Huy Nguyen (‘the offender’) is before the Court for sentencing following guilty pleas, formally entered on the second day of a trial, of three offences on which he was indicted. He adhered to those guilty pleas in this hearing.

2. Adopting the table from the Crown Sentence Summary, the details of the offences, the statutory provisions, and indications of the maximum penalties and applicable standard non-parole periods (but with certain other information relating to the nature of the offences) is as follows:

Count	Offence	Statutory provision	Max penalty	SNPP?
1	Between 1/10/20 and 20/4/21 at Marrickville, knowingly taking part in the cultivation of a number of prohibited plants (506 cannabis plants) grown by enhanced indoor means, being an amount not less than the large commercial quantity (200 plants) applicable to the prohibited plant	s 23(2)(a) Drug Misuse and Trafficking Act1985 (NSW) (‘DMT Act’)	20 years imprisonment	10 years imprisonment
2	Between 30/10/20 and 17/7/21 at Lewisham, knowingly taking part in the cultivation of a number of prohibited plants (99 cannabis plants) grown by enhanced indoor means, being an amount of not less than the commercial quantity (50 plants) applicable to that prohibited plant	s 23(2)(a) of the DMT Act	15 years imprisonment (and/or 3,500 penalty units)	N/A
3	Between 20/4/21 and 27/4/21 at Marrickville, supplying a false lease agreement to Van To Nguyen (the owner of 47 and 47a Chalder St, Marrickville) intending to pervert the course of justice	s 319 Crimes Act 1900 (NSW)	14 years imprisonment (if tried summarily: 2 years’ imprisonment)	N/A

The Facts

3. For the purposes of the sentencing, these were reduced to a statement of agreed facts signed by the offender on 23 April 2024.

Count 1

4. On 1 January 2018, the offender and Nguyet Trang (the offender’s partner) signed a three-year lease for 47a Chalder Street Marrickville. The offender and Trang commenced their textile business HT Pressing Pty Ltd from 47a Chalder Street. The offender, Trang and their four children resided on the top floor of the building.

5. In October 2020, the backyard of 47 and 47a Chalder Street was renovated for the installation of a shed and other works in the backyard. The offender told his neighbour that they were moving out.

6. On 1 November 2020, the offender signed a one-year lease to occupy 47 Chalder Street Marrickville. The offender, his partner and children moved from 47a to 47 Chalder Street. The move was completed before 1 December 2020.

7. In December 2020, the offender moved his textiles business HT Pressing Pty Ltd from 47a Chalder Street Marrickville to 9-15 Frampton Avenue Marrickville. At the time of moving, the offender did not notify the owner of the former premises that he and his family were no longer living at 47a Chalder Street. The owner did not provide the offender with permission to sub-lease either of the Chalder Street premises, nor did the offender have permission to make any modifications to the buildings.

8. On 9 December 2020, a falsified electricity account for the premises of 47 and 47a Chalder Street Marrickville was set up in the name of ‘William Hostel’.

9. In early January 2021, 47 and 47a Chalder Street, with the offender’s knowledge, were renovated to be used for the enhanced indoor cultivation of cannabis plants by other unknown males.

10. The offender was observed attending 47 and 47a Chalder Street, whilst construction was occurring on several occasions. The offender was never seen to actually enter the premises when observed at the property; he would, however, check the mail or drop his children to the day centre they attended (which was a one-minute walk from 47a Chalder Street).

11. Renovations included having a hole constructed between the joining walls of the two premises. The windows to the front and rear of the properties were blackened to ensure the internal areas within the property were not visible from the street. The offender was never observed to have entered the premises during the renovation.

12. On 2 February 2021, the offender met with the owner of the Marrickville premises and indicated that he would like to exercise his option to re-lease 47a Chalder Street Marrickville for a further three years.

13. Police, whilst conducting lawful surveillance, observed the offender attend the premises on 26 February 2021 and 1 March 2021. He did not go inside.

14. Police conducted further covert surveillance on the weekend of 17 and 18 April 2021. The offender was not seen by police at the premises on that weekend. Other unknown males were seen at the premises and entering the premises.

15. Police obtained a search warrant for 47 and 47a Chalder Street Marrickville which was executed on 20 April 2021. Upon entry, police observed a sophisticated hydroponic cannabis plantation inside both premises. The rooms where cannabis plants were actively growing, at various stages of growth, had white lamp shades and light globes hanging from the ceiling, large bags of fertilisers and water drums, a complex watering system, plants in plastic pots with bamboo stales and a complex electricity system was installed. The following was seized:

1. 194 cannabis plants at 47a Chalder Street;

2. 23.588kg of loose cannabis head at 47a Chalder Street; and

3. 312 cannabis plants at 47 Chalder Street.

16. Inside the premises of 47 Chalder Street, there were six rooms actively growing cannabis plants. The lower floor of the factory was being used to grow cannabis plants whilst the upstairs rooms appeared to have been used to grow cannabis plants which had since been harvested. The front upstairs rooms contained several drying racks.

17. Towards the rear of the 47a Chalder Street premises, police observed a hole had been cut into the common wall between 47a leading into the rear yard of the 47 Chalder Street premises, which had been converted into an enclosed shed.

18. The offender knowingly took part in the cultivation of cannabis by enhanced indoor means by:

1. Sub-leasing 47 and 47a Chalder Street Marrickville to others in 2021 knowing the premises were to be used for the purpose of cultivating cannabis by enhanced indoor means; and

2. As the leaseholder, knowing that both premises were being renovated and altered for the purpose of cultivating cannabis by enhanced indoor means.

19. Whilst the offender knew that the number of plants being cultivated by indoor means was significant, he was not aware of the precise number; but was aware that there were at least 200 plants.

Count 2

20. On 11 November 2020, the offender and Mrs Trang commenced renting the property located at 110 Old Canterbury Road Lewisham. The offender had knowledge that the premises was to be used for the enhanced indoor cultivation of cannabis plants.

21. In April 2021, the offender moved out of 110 Old Canterbury Road to 90 Cary Street Marrickville. The offender provided the set of keys to 110 Old Canterbury Road to other unknown males.

22. Between April 2021 and July 2021, the offender allowed 110 Canterbury Road to be used for the cultivation of cannabis plants by enhanced indoor means. The offender was not aware of the precise number of plants to be cultivated beyond the fact it was at least fifty.

23. On 16 July 2021, a real estate agent and property valuer attended 110 Old Canterbury Road after having been informed by the offender that they could attend.

24. Upon entering the premises, the real estate agent observed multiple plants in pots which he believed to be cannabis. The real estate agent immediately exited the premises and contacted police.

25. Later that day, police attended the premises and observed an enhanced hydroponic indoor cannabis set-up. Police observed growing rooms with plants growing in pots and being assisted by nutrient-rich water systems, chemicals, lighting and ventilation.

26. On 17 July 2021, police executed a crime scene warrant at 110 Old Canterbury Road and seized ninety-nine cannabis plants at different stages of growth.

27. All of the windows had been blackened and various parts of the residence were reconstructed along with multiple transformers and electricity appearing to have been taken straight from the connection to the house. One room was being used to dry out cannabis plants for harvest.

28. The offender knowingly took part by allowing the premises to be used for the purpose of cultivating cannabis (by enhanced indoor means) by arranging and executing a lease for the Lewisham premises and knowing that the premises was to be both used for the purpose of cultivating cannabis (by enhanced indoor means) and altered by renovations to facilitate such cultivation.

Count 3

29. Within a week of the search warrant being executed at 47 and 47a Chalder Street, the offender met with the owner of the 47 and 47a premises and supplied a copy of a “Commercial Lease Agreement” for the sub-lease of 47 and 47a Chalder Street Marrickville between the offender and Van Dung Tran and Giai Ky To. Attached to the Commercial Lease Agreement was a photocopy of two New South Wales driver’s licences and two Medicare cards. Additionally, a mobile number was supplied to be purportedly belonging to the new lessees.

30. Both of the New South Wales driver’s licences were falsified. The licence numbers did not match the details recorded on the Roads and Maritime Services database for the persons whom the licences were issued. The residential addresses on the licences, being 211 Auburn Road Yagoona and 32 Dixon Avenue Dulwich Hill, were also false; a church was located at the former and no person by the name of Van Dung Tran resided at the address whilst the latter had been vacant for the prior 12 months and no person by the name of Giai Ky To had resided at the address.

31. The mobile telephone number provided by the offender was registered to a Can Ly of 119 Wetherill Street Smithfield.

32. The circumstances reflect that the offender provided falsified lease documents to pervert the course of justice, namely, knowing that he was indicating that he was not the lessee of 47 and 47a Chalder Street, which were being used for the enhanced indoor cultivation of cannabis plants, when the offender was in fact the lessee of both premises.

Evaluating the objective seriousness of the offending

33. The offender’s Counsel cited typical considerations informing assessment of the objective seriousness of offending for counts 1 and 2: the number of plants, the ‘street’ value of the crop, the sophistication of cultivation, any applicable horticultural skills provided by the offender; the duration of the criminal enterprise; profit made (or sought) and the role of the offender in the enterprise (encompassing what he did).

34. Counsel for the offender acknowledged the circumstance that, in relation to counts 1 & 2, in both instances the quantity vastly exceeded the threshold quantity for the respective offences, but emphasised the agreed fact that beyond the circumstance of his awareness that the quantity exceeded the threshold in each case, the offender had no more specific knowledge. Counsel accepted that although there was no evidence of street value, it would not have been an insignificant sum. In terms of what the offender did, he did not deploy any horticultural skills himself or anything beyond leasing the premises and permitting them to be repurposed. It was acknowledged that by sub-letting the premises, he had provided a ‘veneer of respectability’ enabling the cultivations and made more difficult the task of detection. It was suggested that in the case of count 1, the lease was not taken with a criminal purpose in mind; although it was accepted that a criminal purpose arose in relation to count 2. In relation to the sophistication of the enterprise, it was on par with what would have been expected for offences of that kind. In respect to financial gain, Counsel for the offender submitted that it could be accepted that this was in the form of the enterprise covering his rent on the premises.

35. The Crown began its submissions on this topic by emphasising that simply because the prohibited drug was cannabis, which some have regarded as a ‘recreational’ drug, did not lessen the seriousness of the offending: R v Nguyen [2006] NSWCCA 389 at [54].

36. In relation to count 1, the Crown noted that the offender knew of the purpose of the renovations to both properties; and emphasised that those renovations were extensive. The Crown also emphasised that in February 2021, at a time when the offender met the landlord and indicated his wish to exercise his option for renewal of the lease, he did not disclose that he had already sub-let the premises which he knew had been used for large commercial scale enhanced indoor cannabis cultivation.

37. For count 2, the Crown noted that the offender leased Lewisham premises on the same day he signed the lease at 47 Chalder Street Marrickville; another indication of his awareness of the use of the premises. It was only because of the real estate agent’s discovery in July 2021 during the course of an inspection (with a property valuer) that the enterprise was revealed.

38. For both counts 1 and 2, the Crown characterised the offending as falling just below the mid-range of objective seriousness.

39. I essentially agree with the Crown’s characterisation. Significant though the quantity of the drugs were, what was most significant was the offender’s role. He was instrumental in providing the premises by which the criminal enterprise occurred. It was not an ordinary case, however, of allowing property that he fully owned to be utilised. He was allowing other owners’ properties to be used; thereby, at least, potentially exposing those owners to the risk of criminal liability. Moreover, it was inherent in his involvement that he would have to mislead and deceive the owner. Further active steps were taken by him to help those in the enterprise evade detection. Not least was what Counsel for the offender fairly characterised as lending a veneer of respectability to what was really going on in the property. I take into account that the offender did not manage what was going on inside the property and played no role in the decision-making. Still, he played a significant role. I find his offending, in both instances, very serious; with the offending for count 2 being marginally more serious than count 1; in view of the knowledge of matters the offender had already acquired from count 1.

40. As to count 3, the offence of perverting the course of justice is not confined to legal proceedings already in existence but can extend to acts done with intent to frustrate or deflect the course of judicial proceedings that the accused contemplates may be instituted: The Queen v Beckett (2015) 256 CLR 305 at [7].

41. The offender submitted that the motive was to divert the landlord and, indirectly, the police, discovering his knowledge of the activities within the leased premises. This, it was submitted, was unsophisticated: he was exposing himself to a significant risk of prosecution. It was also suggested that an inference should be drawn that it was done at the behest of the enterprise.

42. For count 3, the Crown emphasised that this offending post-dated (and not by very long) the execution of the search warrant on the Marrickville premises. The offending comprised a variety of false documents, including those of a public nature, which signified a high level of sophistication. I prefer the Crown’s submissions. There was a level of planning that took skill and naturally served to deceive.

Aggravating factors?

43. The Crown argued that certain statutory aggravating factors arose. But to the extent that the Crown referred to planning (s 21A(2)(n)) in relation to the 3 counts, the offender’s prior criminal history, I have taken these into account for other purposes. I refer to the offender’s criminal history later in these remarks.

44. By its written submissions, the Crown also noted for both Counts 1 & 2, that substantial damage had been done to the premises; causing the landlord financial and psychological distress.

45. In R v Hockey [2006] NSWCCA 146 at [15], Adams J suggested that s 21A(2)(g) cannot be given any additional significance as an aggravating factor in the absence of any evidence that particular harm was caused, although he notes that his view is “apparently inconsistent” with R v Way (2004) 60 NSWLR 168. McClellan CJ at CL and Johnson J reserved their position on this issue.

46. I accept that it inexorably follows from offending of this kind that it results in harms to the community; not least what McClellan CJ at CL described in R v Nguyen as its ‘destructive potential’ to especially young users and its societal consequences. In my view, when the Crown intends to rely upon an aggravating factor, and there is evidence which could have been called but, without explanation, has not been called, it should be very difficult for the Crown to establish the aggravating factor. Here, there was no victim impact statement from the landlords indicating the latter.

The offender’s subjective case

Age and background

47. The offender was 30 years of age in the periods of his offending. He is now 33.

48. The offender prepared an unsworn written statement dated 3 July 2024. Amongst other things he set out aspects of his background.

49. The offender’s life, including but not limited to his mental health history, was also assessed by Dr Carmelo Pollicina. Dr Pollicina noted that he had not only been asked by the offender’s lawyer for a report, but independently, had received a referral from the offender’s general practitioner (Dr Tuong) on 20 June 2024. That general practitioner had indicated depression and anxiety as the reason for the referral.

50. Dr Pollicina took a personal history from the offender. He was born from Vietnamese parents. He was the product, so he understood, of an unplanned birth; born out of wedlock with his parents having children from previous marital relationships.

51. He migrated to Australia when he about 8 years of age. He described his parents as acting excessively strictly towards him (and his sister).

52. But he completed his schooling without incident and went on to complete a degree in Information Technology (UTS).

53. Recently, he has acted as a full-time IT support worker at Harvey Norman in Bankstown, as well as attending to two businesses.

54. He is in a de-facto relationship with a partner. That relationship has been of 7 years’ duration. They have had three young children together. His partner had two other children from a previous relationship.

Explanation for offending

55. The offender did not delve into the details as to how he became mixed up with others in the criminal enterprise. He focussed on his motive.

55. In his written statement, the offender more specifically attributed his offending to the circumstance that in 2018, a year or so after starting a family business, he had been defrauded, of all people, by his father which resulted in the loss of a property he had owned. He attached a letter he received from the Australian Financial Complaints Authority on 7 May 2020, which corroborated this. He also intimated that, subsequent to the index offending, he and his wife had purchased real property on the faith of misrepresentations.

56. The community corrections officer referred to the offender reporting his motive for the offending: he was unemployed and experiencing a range of financial stressors.

57. In Dr Pollicina’s report, however, the mental health professional determined that there was a connection between the offender’s mental health conditions, which he identified as depression and anxiety, and the offending conduct. In particular, the psychologist wrote that ‘it appears that feelings of affective neglect at the time, and the severe financial stress he came to find himself in at the time, led [the offender] to behave more impulsively than ordinarily such that he engaged in criminal conduct.’

58. Dr Pollicina arrived at that view, it appears, influenced by his assimilation of the notion of parental neglect with ‘child abuse’ manifested, amongst other things, by poor impulse control, low self-esteem and negative emotions.

59. I do not accept that opinion, to the extent that it emphasises the significance of ‘parental neglect’. For starters, it is at odds with the offender’s own explanation for his offending, which was entirely referable to his financial circumstances. For example, elsewhere the psychologist referred to the offender telling him that he had ‘underestimated the seriousness of what he was doing’. This is the language of miscalculation. Secondly, there is nothing to indicate any history of a diagnosis of depression or anxiety sourced in ‘parental’ or ‘familial’ neglect. Thirdly, the offender is not an unintelligent man: he received a good education culminating in completing a significant degree at the University of Technology Sydney. Fourthly, the nature of the offending was such that it could not be characterised as impulsive. It stretched over a period of 7 months. Whilst there were certain details which the offender did not know of, that was because he turned a blind eye to them, the offending for counts 1 and 2 were the product of economic calculation borne of straitened financial circumstances he and his family faced; not impulsivity. The offending for count 3 was again the product of planning designed to conceal his involvement. There was nothing impulsive about that either.

60. I agree with the Crown further, that such distress or depression currently manifested in the offender is attributable to his offending rather than factors in his life prior to the index offending.

61. Desperate or dire financial circumstances proximate to the offending help explain the offending but they were of a ‘situational’ kind. They do not excuse it and cannot in my view, be sheeted home to suggested child abuse Dr Pollicina regarded him as having endured. Though they help explain the circumstances of his offending, they do not diminish his moral culpability.

Antecedents

63. The offender’s criminal history is relevantly recent. Indeed all of them, bar one offence, post-dated the index offending. Of their nature, they concerned unrelated (mainly driving) offences. The nature of that offending does, however, evince a disturbing trend of breaching rules; albeit in a different context. It is true, as the offender’s Counsel noted, that none of those other offences gave rise to the imposition of sentences of imprisonment.

64. The offender suggested that he was of prior good character.

65. The circumstance that an offender has a prior criminal history does not automatically preclude a finding of good character. I have had regard to two testimonial statements (Exhibits 2.1 and 2.2) relied upon by the offender. The first was really a work reference. The latter was a trifle more personal, from a former work colleague.

66. I give limited weight to his being of prior good character.

Discount for guilty pleas

67. In his submissions, the offender distinguished the position about his guilty pleas to counts 1 and 2 from his guilty plea for count 3. In respect to counts 1 and 2, it was said that the guilty pleas were made following the settling of charges and agreement upon facts having occurred in the period of 2 weeks before the date of the commencement of the trial. As to count 3, it was said that although the facts had been agreed, agreement about the charge had not. Irrespective, the offender submitted that he was entitled to a 10% discount on each plea.

68. The Crown did not wish to be heard against that submission.

69. I allow that quantum of discount on each of the guilty pleas.

Assistance to authorities

70. [Redacted]

71. I find a 10% discount because of assistance to the authorities.

Remorse

72. In his written statement, the offender referred to his recently receiving a mental health plan. He said that he had learnt that “engaging in the activities that I have been charged with is not worth a single penny”. He also expressly apologised to the Court and to the community. By that, he recognised not only adverse consequences to his landlord and the community.

73. Dr Pollicina described the offender as showing remorse which he considered was genuine.

74. The community corrections officer recorded in the sentencing assessment report that although the offender stated that he had no (physical) involvement in the cultivation process and did not even attend the property, the offender accepted full responsibility for his actions and confirmed that he was aware of what was occurring at the property. The corrections officer described the offender as displaying ‘good insight’ about his actions.

75. Although he entered pleas of guilty, in the circumstances where they were entered late in the piece, I regard them as almost entirely made for utilitarian purposes and do not of themselves materially indicate remorse.

76. Nevertheless, I accept overall that he is remorseful; although I think it is also fair to say, without being unduly critical, that his regret is primarily focussed upon the consequences of his conduct for himself and his family.

Rehabilitation prospects & likelihood of re-offending

77. I noted earlier the offender’s criminal history; most of which post-dated the index offending. But as was correctly pointed out, this had nothing to do with the index offending.

78. Dr Pollicina stated that the offender had expressed a determination to redeem himself and to provide for his family, both financially and emotionally.

79. The community corrections officer indicated in the sentencing assessment report that the offender had indicated a willingness to engage in interventions and, indeed, reported to the officer that he had engaged in psychological intervention.

80. In the sentencing assessment report, the community corrections officer referred to the offender residing in accommodation with his partner and dependents; but other than his family, he lacked other family or social support.

81. The community corrections officer also noted that the offender had recently secured employment in the telecommunications industry. This was not alluded to by the offender in his written statement supplied to the Court.

82. I find that, having regard to his reasonable record, his remorse, and his natural motive to aid his family, and his pro-active steps to seek out counselling, he has good prospects of rehabilitation.

83. The community corrections officer assessed the offender as being at a ‘Medium-Low’ risk of re-offending, according to the LSI-R scale. Other than identifying a supervision plan, she also indicated he was suitable to undertake community services work.

84. I find, on balance, that he is unlikely to re-offend.

Hardship to others

85. In his written statement, the offender expressed fear that his wife will not be able to properly look after his children, meet the family’s living expenses and fill his role in the businesses. He listed a range of bills which he said were outstanding.

86. He described himself as doing most of the domestic duties around the home; as well as driving the children to and from school.

87. In particular, he stated that his wife had mental health issues of her own, evidenced, he said, not only by an incapacity for work; but also by her being referred to the Emergency section of a hospital after drug overdosing.

88. The offender’s wife, Nguyet Huu Minh Trang, affirmed an affidavit (22 May 2024) corroborating most of what the offender wrote. Ms Trang has 5 children with the offender being the father for the three youngest children (aged 5, 4 and 1 respectively) and noted that she started to have a relationship with the offender from 2017 after having endured domestic violence at the hands of an earlier partner. A copy of an ADVO taken out against that former partner in 2017 was in evidence and it was notable that the offender was identified as a person in need of protection in addition to Ms Trang.

89. She deposed to having developed mental health issues in 2019 arising from complications from the pregnancy of her fourth child. Curiously she had received no diagnosis, although she did annex to her affidavit several medical records indicating admissions to hospital in November and December 2019.

90. She deposed, in summary, to:

• her reliance upon the offender for her emotional, mental and physical support;

• her husband’s role in running two businesses: a steaming and press business and fashion manufacturing business;

• her ineligibility for Centrelink benefits given her co-ownership of the fashion business;

• current debts and liabilities of the couple; and

• in particular, apprehension of the financial effects of a forced sale of the home to the mortgagee.

91. The offender also relied upon evidence (Exhibit 2.3) to indicate that Mrs Trang is currently pregnant.

92. Mrs Trang was required to attend for cross-examination on her affidavit. What was particularly in focus was the nature and number of cars that she and the offender had (and still retain) and the extent to which the offender owned, ran or contributed to the running of two businesses. She indicated that the monthly debts and liabilities exceeded $10,000, on top of which there was an HECS debt; even before living expenses were taken into account.

93. Mrs Trang was not an impressive witness. There were internal inconsistencies in her evidence, either within her testimony, or between her testimony and what she deposed in her affidavit as exposed in cross-examination. Further, having seen her in the witness box, I was sceptical about the impression clearly conveyed from her affidavit evidence that indicated that she was so functionally incapacitated as to be unable to contribute anything meaningfully to the home environment. She struck me as an intelligent person, and did not obviously indicate to me a complete incapacity to work in the businesses. Even then, on the basis of her evidence that she could not drive, it was inexplicable why the family, as a whole, would continue to retain two motor vehicles.

94. At least it was clear from her evidence that the offender was working in the morning (in the businesses) and by night (at Harvey Norman). This did not suggest any significant contribution he could make to the domestic environment. If, further, he was acting in the businesses, that would itself be inconsistent with the notion that the entirety of the family’s income had plunged following his apprehension. It was of some significance that no financial statements had been relied upon in Court to objectively support sentiments or beliefs of Mrs Trang (or the offender) in that regard.

95. There were also statements that she made which did not accord with the offender’s (unsworn out of court) written statement, such as his telling the community corrections officer that he was working in the telecommunications industry.

96. It emerged from the evidence that there had been various properties owned by the couple, to which they moved from, from time to time. Overall, I accept the Crown’s submission that the circumstances of this case are akin, or not dissimilar to, the paradigm often seen in white collar crime where a not insubstantial acquisition of items of property occur in ‘good times’ leading to a result that a couple may be financially over-extended and when the main contributor, or ‘breadwinner’, faces the prospect of incarceration, the debts remain to be paid but the family have not the wherewithal, or have indicated a serious preparedness or ability to cut back.

97. Even if I were to accept, which I am not inclined on balance to do, that the circumstances that the offender and his wife alluded to satisfied the standard of ‘exceptional circumstances’ in mitigating a sentence that was otherwise appropriate, the offender’s difficulty is that those circumstances are the very kind of thing likely to arise from his being apprehended from his crimes. I note that the medical records relating to his partner suggested her admission to hospital in late 2019 with her mental health issues. This preceded the offending in question. Offenders of serious offences, inherently involving a level of planning and a level of cost-benefit analysis, should not be encouraged to think that they can get away with reduced or different sentences on account of hardship to others that is the foreseeable consequence of them being apprehended. Further, even if I was to make a finding of exceptional circumstances, I am cognisant of the sentencing consideration of mercy, that cannot overwhelm other sentencing considerations which I am to take into account.

98. I have factored in, in my assessment of the offender’s rehabilitation prospects, and the salience of specific deterrence, any particular distress occasioned, or likely to be occasioned to the offender if a full-time custodial sentence is justified.

Instinctive synthesis

99. I have regard, of course to the maximum penalties for the charges and, in the case of count 1, the standard non-parole period. Especially for count 1, the maximum penalties present clear signposts to the seriousness of the offending that occurred.

100. I have considered all of the sentencing considerations in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

101. As has often been observed, these considerations pull in different directions. I place significant weight upon general deterrence, a need (in the absence of any real diminution in moral culpability) for retribution and denunciation, holding the offender to account, adequacy of punishment and protection of the community. However, the offender presents a good subjective case which warrants a deal of leniency and moderates, to a degree, the salience for specific deterrence.

102. At least with respect to counts 1 and 2, the offender’s Counsel concedes that the s 5(1) threshold has been crossed in each instance. In my view, the offender’s concessions as to counts 1 and 2 are properly made.

103. No such concession is made in respect to count 3; although the offender recognises that the penalty for that matter may form part of an aggregate sentence.

104. About count 3, the Crown emphasised, and I accept, the line of authority that offences against justice require strong deterrent sentences and must be severely punished when detected: Marinellis v R [2006] NSWCCA 307 at [10]. As to count 3, The offender’s conduct involved the knowing concealment of seriously criminal conduct. I find that the s 5(1) threshold is crossed in relation to count 3 as well.

105. Indicative sentences (taking into account the discounts because of the guilty pleas (10%) and past assistance to authorities (10%), and rounded up) are:

Count 1:      4 years imprisonment (NPP 2 years and 2 months)

Count 2:      3 years and 2 months’ imprisonment

Count 3:      1 year and 7 month’s imprisonment

106. I recognise and apply the totality principle. I note that although they concern the same prohibited drug, and different quantities thereby (making count 1 more serious than count 2), the offending occurs in substantially overlapping periods. However, the offending for counts 1 and 2 did occur in two different locations. The offending in connection with count 3 was intimately connected with, if not incidental to, the offending for count 1. Nevertheless, count 3 has different statutory objects to count 1. All of this indicates that although the sentence should reflect a substantial measure of concurrency, that should not be purely so, and an element of accumulation is also warranted as between the offences.

107. I would identify, as a starting point an aggregate term of imprisonment of 5 years and 6 months.

Pre-sentence custody

108. The offender has spent a period of 31 days in custody. The commencement date will be backdated to take that period into account.

Special circumstances

109. I accept the offender’s Counsel’s submission that special circumstances exist having regard to the fact that this will be the first time the offender is in custody and the hardship to his family.

Sentence

110. Mr Nguyen, please stand.

111. You have been convicted of counts 1, 2 and 3.

112. I sentence you to a term of imprisonment of 5 years and 6 months, commencing on 4 June 2024 and expiring on 3 December 2029. The non-parole period is 3 years expiring on 3 June 2027; after which you are eligible for release on parole.

113. I direct that Corrective Services be advised, with respect to the reasons of this judgment, that the offender be cared for, assessed, and assisted as expeditiously as possible in custody.

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Decision last updated: 08 July 2024