R v Nguyen

[2023] NSWDC 318

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v NGUYEN [2023] NSWDC 318

Hearing dates:

15 August 2023

Decision date:

17 August 2023

Jurisdiction:

Criminal

Before:

NOMAN SC DCJ

Decision:

The ICO imposed on 22 April 2022 is revoked. A fixed term sentence of 12 months is imposed, to date from 7 August 2022; The offender is convicted of the aggravated break and enter offence. The sentence imposed is one of 3 years with a non-parole period of 18 months to date from 7 November 2022. The non-parole period expires on 6 May 2024 and the term expires on 6 November 2025; This variation to the statutory ratio to 50% gives effect to a finding of special circumstances. No lesser sentence would address the offending. The overall sentence, including those imposed in the Local Court, is one of 3 years and 5 months with an overall non-parole period of 1 year 11 months, resulting in a ratio of 56%.

Catchwords:

SENTENCING – state offences - aggravated break and enter with intent to steal – breach of Commonwealth ICO – failure to comply with sentence – revocation of Commonwealth ICO - imprisonment

Legislation Cited:

s 400.9(1); 400.9(1A) Criminal Code Act 1995 (Commonwealth)

s 142(1) Anti-money Laundering and Counter-Terrorism Financing Act 2006 (Commonwealth)

s 113(2) Crimes Act 1900 (NSW)

Category:

Sentence

Parties:

Rex;
Quy Thanh NGUYEN

Representation:

Counsel:
Defence: Ms Ghabrial

Solicitors:
Crown (State DPP): Mr Leach
Crown (Commonwealth DPP): Mr Healy

File Number(s):

2022/165486; 2016/228196

JUDGMENT

1. The offender, Quy Thanh Nguyen, appears for both breaching a Commonwealth ICO and for committing a State offence.

2. In 2016 the offender committed money laundering offences of dealing with money suspected of being stolen. There were three separate offences, committed contrary to s.400.9[1] and 400.9[1A] Commonwealth Criminal Code and s.142[1] Anti-money Laundering and Counter-Terrorism Financing Act. The maximum penalties are 3 years, 2 years and 5 years imprisonment respectively. The offender was sentenced before His Honour Judge Armitage on 25 July 2019 to an aggregate sentence of 3 years imprisonment to be served by way of an ICO. The offender received a reduction of 30% to his sentence to recognise the early plea and assistance. He breached that ICO and appeared before His Honour Judge Hanley SC on 22 April 2022. Judge Hanley SC revoked the original ICO and imposed a further ICO for a period of one year. Within two weeks the offender commenced committing further offences, including that for sentence. On 23 March 2023 the Commonwealth commenced proceedings to address the failure to comply with the conditions of the ICO.

3. The offender appears for sentence on the sole offence of aggravated break and enter with intent to steal. The circumstance of aggravation was knowing there were persons inside. This offence was committed on 6 May 2022. This offence is contrary to s.113[2] Crimes Act. The maximum penalty is 14 years imprisonment. The offender pleaded guilty in the Local Court. A reduction of 25% will be applied to sentence to reflect the timing of the plea.

4. The maximum penalty for an offence operates as a legislative guidepost and represents the legislature’s assessment of the seriousness of the offence.

5. The facts for the Commonwealth offences were detailed in the original sentencing remarks. Very succinctly, the offender acted at the instruction of another to deal with or launder large sums of money [$255,770, $234,910 and $91,370]. I do not propose to recite the facts or other details as there was no challenge to the appropriateness of the sentence imposed. I have read and considered the reasons. Since the imposition, the offender committed a number of drug offences and the index offence and otherwise has been in custody since 7 June 2022. He completed 2 hours of the ordered community service. He was using drugs in breach of the order. He was not of good behaviour and committed further offences. Submissions were advanced on behalf of the offender that the matter could proceed with the imposition of a community-based order. A single decision was provided wherein the breach of the order resulted in no action being taken in part because the breach informed another sentence. The outcome in one case, not particularly similar, provides no real assistance. I do not know to what extent the breach of an ICO informed the sentences imposed in the Local Court. I do not consider that after breaching two previous ICO’s anything other than full-time imprisonment is available. Although there was performance of 2 hours of community service, there was no meaningful compliance with the order. Nothing warrants a reduction to the term of the sentence.

6. The offender committed the offence for sentence within about 2 weeks of commencing the ICO. He entered an apartment at about 3am with the intention of stealing. He opened a closed door and entered. It was a residential building. He accepted the circumstance of aggravation that he was aware of persons inside. There was no evidence of planning. The offender advanced he was drug affected. This drug use explains the offending but does not otherwise ameliorate sentence. His presence was detected and he was interrupted. Two persons were inside their own home. Once confronted by both victims the offender left. One of the residents took his photo which led to him being recognised by police. Both residents wrote of the continued impact from the offending. This is a real and tangible consequence from the offending and denotes a loss of a sense of safety. This is to be expected given the sanctity of their home was violated in the middle of the night as both slept. Although the offence provision encapsulates far more serious offending, this is a moderately serious example of the offence provision.

7. The offender was a drug user and advanced he committed the offence for financial benefit. That is consonant with the accepted intent to steal. He had a diagnosed substance abuse disorder which is a condition listed on the DSM 5. There is evidence the drug use on the night informed his offending and reflected poor impulse control and impairment of his judgement. This is consistent with the finding of an absence of planning. It was submitted on his behalf that the offender’s mental state and emotional and financial stressors ameliorated moral culpability. He made a reasoned though poor choice to commit the offence for money. I do not regard any of these factors as lessening moral culpability.

8. The offender is now aged 33.

9. At the time of offending the offender was subject to conditional liberty. He was on bail for drug offences committed on 8-9 April 2022. He was subject to the ICO listed before the Court for breach action. This was imposed only 2 weeks earlier. A breach of conditional liberty is a matter of aggravation as it reflects an abuse of the freedom granted by taking the opportunity to further offend.

10. The offender has a number of entries on his criminal history. In additional to the money laundering offences, the offender has various drug offences including one for supply and several for possession commencing in 2020. The facts of many of his offences are tendered. He has received various sentencing outcomes including fines, a conditional release order and imprisonment. There are also other offence types. The offender’s antecedents do not operate to disentitle him to some leniency.

11. The offender wrote directly to the court and provided an account to Mr Watson – Munro, psychologist. He provided details of his background including coming from Vietnam to Australia in 2009 on a student visa. He obtained a business certificate qualification that he appears not to have used in employment. His residency was sponsored by his wife. Despite facing Commonwealth charges, he obtained permanent residency in 2017. He has partnered and fathered a child. He used recreational drugs since 2015. The drugs used are primarily cannabis and methamphetamine. There is no suggestion of high-level use. Mr Watson- Munro observed the limited degree. It is said to have escalated to several times per month of ice usage during the pandemic. He worked and provided for his family until 2021.

12. The offender was provided with the content of the victims’ statements and he expressed concern for both. I accept there to be appropriate remorse, insight and an acceptance of responsibility.

13. The offender has indicated he is drug abstinent whilst in custody. This is commendable. It however is accomplished in a controlled environment. He has undertaken short courses to enhance his prospects.

14. The psychologist noted anxiety and depression with a substance abuse disorder. No formal testing was undertaken. The offender advanced issues adjusting initially to life in Australia. The opinion was that there were no indications of any major psychiatric disturbance, no major depressive disorder and no diagnosed adjustment disorder.

15. The offender’s partner wrote to the court. She remains supportive. This support was available at the time of offending. It was not sufficient. The offender will need to maintain his drug abstinence for any support to be sufficient. This is undoubtedly why Mr Watson-Munro recommended continuing treatment in the community to address depression and anxiety, as they historically inform his drug use.

16. The offender’s prospects of rehabilitation and of not reoffending remain guarded. His offending has been varied in type although all informed by his drug use. If he is able to maintain his abstinence from drugs they will improve. He has limited support in the community. He has his sister and his partner. Both were previously present and unable to provide sufficient stability and support. Specific deterrence continues to perform an important role.

17. General deterrence and retribution are relevant sentencing considerations.

18. One of the purposes for which a court may impose a sentence on an offender is to recognise the harm done to the victim of the crime and the community. It is well understood that the entering of a private home in the middle of the night instils fear in the actual victims as well as elevating concern in the wider community.

19. Statistics were provided. They provide some limited guidance.

20. Having considered all the possible alternatives, I am satisfied no penalty other than full-time imprisonment is appropriate.

21. I am required to consider totality. The breach offences occurred in 2016. The offender was arrested on the index offence on 7 June 2022. He was sentenced to 7 days imprisonment to date from 7 June to 13 June 2022 for drug offences; and then many concurrent sentences of 3 months to date from 8 June to 7 September 2022 including for other drug offences. These offences were committed close in time to the index offence. The offence categories are all different although sharing the commonality of being informed by the offender’s drug use and substance use disorder. The sentence requires some concurrency to ensure an appropriate overall sentence.

22. I make a finding of special circumstances relying on the identified factors of onerous conditions under COVID, the need for an extended period of supervision and for a period of monitored treatment if required.

23. I revoke the ICO imposed on 22 April 2022. I impose a fixed term sentence of 12 months to date from 7 August 2022.

24. The offender is convicted of the aggravated break and enter offence. The sentence imposed is one of 3 years with a non-parole period of 18 months to date from 7 November 2022. The non-parole period expires on 6 May 2024 and the term expires on 6 November 2025.

25. This variation to the statutory ratio to 50% gives effect to my finding of special circumstances. No lesser sentence would address the offending. I accept the overall sentence, including those imposed in the Local Court, is one of 3 years and 5 months with an overall non-parole period of 1 year 11 months, resulting in a ratio of 56%.

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Amendments

17 August 2023 - Spelling of counsel's name

Decision last updated: 17 August 2023