R v Nguyen

[2022] NSWDC 735

District Court

New South Wales

Medium Neutral Citation:	R v Nguyen [2022] NSWDC 735
Hearing dates:	17 October 2022, and 9 December 2022
Decision date:	09 December 2022
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Term of imprisonment of 2 years and 8 months, with a non-parole period of 1 year and 4 months
Catchwords:	CRIME - SENTENCE - Supply a prohibited drug greater than the commercial quantity
Legislation Cited:	Drug Misuse and Trafficking Act 1985 (NSW) s 25(2)
Category:	Sentence
Parties:	Rex (Crown) Duc Toan Nguyen (offender)
Representation:	Ms Knowles (Crown Prosecutor) Mr Keller (Counsel for the offender)
File Number(s):	2021/00139926
Publication restriction:	Nil

1. Duc Toan Nguyen, you appear for sentence today in relation to one offence and that is supplying a prohibited drug greater than the commercial quantity for that particular drug.

2. The offence involves a contravention of s 25(2) of the Drug (Misuse and Trafficking) Act 1985 (NSW). The maximum penalty for that offence is imprisonment for 15 years and there is no standard non-parole period.

3. The facts surrounding your offending were, to a degree, contained in a statement of agreed facts signed by you on 17 October 2022. However, during the course of the sentence hearing today, you gave supplementary oral evidence concerning the offending.

4. I find the following facts beyond reasonable doubt based upon the original statement of agreed facts and that supplementary oral evidence.

5. In about May 2019 (when you were 23 years old) you came to know a man called Tung Nguyen. On your estimate, Mr Nguyen was about 10 years older than you.

6. Initially, you met Mr Nguyen at a party and the two of you decided to keep in touch. That involved (as I have understood it) you and Mr Nguyen going to (other) parties together.  I have not understood it to be the case that your wife accompanied you on those social outings.

7. In about April 2021, you and Mr Nguyen were at one such social outing. At or about the time of that social function, Mr Nguyen asked you to assist him (in some unspecified way) in illegal drug trafficking activity.

8. According to your oral evidence, you said you did not agree straight away to this request - and I have no particular reason to reject that evidence. But Mr Nguyen was not to be put off. He approached you a second time to seek your assistance in this illegal activity and that, according to you, was probably in early May 2021.

9. Why it was that Mr Nguyen felt comfortable in approaching you to assist him in his criminal activities is not revealed in your evidence, but I shall not speculate about that adversely to your interests. Suffice to say that greed seems to have been a motivating factor. I shall return to that topic very shortly.

10. When Mr Nguyen approached you the second time, you did agree to assist him in his illegal drug activities. You agreed that you would: lease storage premises; pay for the storage; hire the relevant transportation vehicle; and assist in the collection of the drugs to be stored - and this is what occurred.

11. In exchange for your assistance to Mr Nguyen, you told the author of the sentencing assessment report that you were to receive $500.

12. The implausible nature of that assertion was disclosed in the submissions filed by the Crown Prosecutor which showed that, if your statement to the author of the sentencing assessment report were true, your involvement in the activity would have resulted in a financial loss to you. But, as you have agreed in the witness box today, what you told the author of the sentencing assessment report was not true.

13. In truth, you were offered $2,000 a week by Mr Nguyen to store these drugs for him, and it was expected that you might be storing them for him for up to three to four months.

14. At the outer limit then, you engaged in this enterprise for the purpose of obtaining approximately $32,000 (tax free).

15. The scheme was put into place on 11 May 2021. You rented a vehicle which was to be used to transport the drugs to the storage facility. You took that rental vehicle back to your premises where it was taken away by Mr Nguyen.

16. Mr Nguyen returned that vehicle to you the next day, 12 May, and, in the meantime, he had loaded the van with ten boxes (all of which contained a substantial quantity of cannabis).

17. He then left that van with you for that night.

18. The agreed facts state that the estimated street value of the cannabis was somewhere between $900,000 and $1.8 million. That shows a very considerable level of trust in you by Mr Nguyen.

19. Somewhat extraordinarily, that van, with that valuable cargo, was left by you overnight on the street.

20. The next day, you then drove the van with the cannabis to the Storage King facility at Chipping Norton. Mr Nguyen drove to a car park near that storage facility.

21. Storage King had a business practice of completely cleaning a storage unit when a previous tenant had vacated.

22. You went alone into the storage facility and entered into an agreement to lease one of their storage units. You entered into a lease in respect of a ground-floor unit, and you were given a padlock for that particular unit. You were also given the access code to the storage facility premises.

23. In the process of entering into the storage agreement, you provided your own name. You provided identification through your own driver’s licence. You paid for the first month’s rent and the cleaning fee using your credit card which was to be regularly deducted for the rent during the term of the lease.

24. Curiously, in the rental agreement, you nominated an alternate contact person. I say "curiously" because the person nominated was your brother, who, according to your wife’s affidavit, was only 13 years old at that time.

25. After you completed the paperwork and obtained the padlock and the access code, you left the storage premises in that van.

26. As I have said, Mr Nguyen had parked his motor vehicle nearby and you went and collected him. Then you and he returned in the van to the storage facility where the ten boxes were unloaded.

27. CCTV footage discloses you moving two trolleys, but that CCTV footage does not otherwise capture your activity in the approximately 40 minutes that the van was unloaded.

28. Although there is no evidence on the CCTV of what you were doing, apart from moving two trolleys about, in your oral evidence today you admitted that you were involved in the unloading of those boxes, hence the need for you to use gloves.

29. The agreed facts note that when the police ultimately went into those premises, in circumstances I shall return to, they found a box of latex gloves, rolls of sticky tape, and a pair of scissors, which is consistent with some sealing of the boxes once unloaded.

30. However, on the material before me, I am unable to conclude that you were involved in that aspect of the unloading (ie the sealing of the boxes).

31. Once the drugs were unloaded by at least you (and probably Mr Nguyen as well), and after the expiration of this 40-odd minutes, you and he then left the premises in the van. You were again driving. You returned Mr Nguyen to the nearby car park where his car was located and then you and he went your separate ways.

32. You gave evidence this morning that, at the time of your separation from him, you handed to Mr Nguyen the key for the padlock for the storage facility and the access code.

33. Fortunately for the community, the employees of the storage facility became suspicious of what had been stored, and, without descending into unnecessary detail, those employees noted a very strong smell of cannabis coming from the storage facility, and they contacted the police.

34. Ultimately, a search warrant was executed, and the police found within the storage facility ten boxes, each of which contained a quantity of cannabis. The total amount of the cannabis in those boxes was 93.503 kilograms, and, as I have said, the estimated street value of that amount was somewhere between $900,000 and $1.8 million.

35. It is not part of the Crown case that you were aware of the value of those drugs.

36. Following the discovery of the drugs and by reference to the details that you had provided to the storage facility operators, you were arrested on 18 May 2021.

37. You remained in custody until you were granted bail on 1 September 2021.

38. Curiously, you said in your evidence today that, whilst on remand, no attempt had been made by Mr Nguyen to contact you.

39. Equally curiously, you have said that upon your admission to bail and release from custody, you tried to contact him but could not find him. No doubt Mr Nguyen was wondering what happened to his $1.8 million worth of cannabis, but that evidentiary lacunae is of no immediate moment. It is just mentioned for completeness.

40. Whilst I have considerable suspicion, Mr Nguyen, that the Court has not been told the whole truth by you, I am satisfied beyond reasonable doubt that your intended role was at least that of a warehouseman for up to four months, but beyond that, I am not prepared to speculate adversely about your role.

41. Given the amount of drugs and the period of time you were willing to be a warehouseman, your role was not an insignificant one.

42. In my view, the objective seriousness of the offending, for an offence of its kind, is somewhere equidistant between the middle and the bottom of the range.

43. There are no additional aggravating circumstances.

44. The Court has received only slender subjective evidence on your behalf.

45. You are now 26. It would seem from your wife’s affidavit, that you were born in Vietnam and that you and your family came to Australia when you were 16 years of age. Your parents, your 13-year-old brother, you and your wife, and your two children, all live in the same house in Bonnyrigg.

46. I do not know anything about your education.

47. I do not know anything about your work history, other than you are currently employed by a powder-coating company. You must be held in high regard by your employer, because he has not only completed a reference for you, but he is present in court today.

48. One of your two children has a significant medical condition. According to Dr Ho (Consultant Paediatrician), your son, who is almost four, has significant language delay issues, global development delay issues and behavioural problems. Unsurprisingly, the difficulties with that child have caused mental anguish to all members of the family but particularly to your wife, that child’s mother.

49. I do not regard those circumstances however as being exceptional hardship considerations. The child and your wife can be supported by the extended family. But I have taken that child’s illness and your wife’s condition into account in a circumstance I shall describe shortly.

50. There is no evidence that you have any illicit drug, gambling, alcohol or mental health issues.

51. As I said, you became involved in this trafficking of this highly-dangerous drug for commercial gain - and cannabis is a highly-dangerous drug. Those who say that it is as drug which is harmless, need only go to the Local Court or this Court any day of the week and see what cannabis does to the minds and mental health of teenagers who consume it. There is an undoubted direct connection in the medical literature between adolescents consuming cannabis and the development of that most dreadful illness, schizophrenia.

52. Parliament is correct, in my respectful opinion, in imposing heavy penalties on those who traffic in cannabis - and you, in a significant way, were prepared to participate in the trafficking of a significant amount of cannabis.

53. You expressed remorse in a letter of remorse. The weight and impact of that expression of remorse is diminished by the fact that you lied to the author of the sentencing assessment report and you were evasive in the witness box today in trying to explain why you had only told that officer about the $500. It was not for the officer to frame questions for you to respond to. You well knew that that officer was seeking information to put before the Court for sentencing purposes as to why you became involved in this offending. In lying to the officer, you were attempting to lie to the Court and, as the Crown Prosecutor pointed out in her oral submissions today, your evidence about a number of matters today chopped and changed.

54. I am not persuaded on the balance of probabilities that you are genuinely remorseful, as opposed to being sorry for the position in which you find yourself. They are two different things.

55. Remorse is an important element in assessing an offender’s prospects of rehabilitation. Other factors are: the offender’s age; the offender’s family support; any support from an employer; and whether the offender has any criminal record.

56. You have effectively no criminal record. There is one very minor matter on your record. I am therefore prepared to treat you as a first offender, and give you the leniency, which in appropriate circumstances, can be extended to a first offender. In all the circumstances, I regard your prospects for rehabilitation as being guarded. They would be enhanced by a longer period on parole.

57. Because of the danger to the community in the supplying of illegal drugs, general deterrence, that is, fixing a penalty that will deter others from doing what you have done, is fully engaged.

58. Because you were prepared to do this for money, specific deterrence, that is, fixing a sentence that will deter you, is fully engaged. 

59. But you are only 26 years of age and therefore considerations of rehabilitation are also fully engaged.

60. You were committed for trial in the Local Court on 9 December 2021 and a trial date was fixed in this Court for 17 October 2022. I was told at 10am on that day that the matter was ready to proceed. I called for a jury panel so that the trial could commence but, for administrative reasons, the panel was not available until 12 noon.

61. In the interval, the matter was "settled" by negotiations: the nature of the charge was changed from a supply large commercial quantity to supply commercial quantity; and the amount involved was halved.

62. You then pleaded guilty upon being re-arraigned.

63. Your counsel has accepted and conceded the point made by the Crown in her written submissions that, apart from the change in the quantity of the drugs, the essential Crown case against you remained unchanged. In these circumstances, you are entitled to a 10% discount for the utilitarian value of the plea.

64. Some reference has been made in the material to the conditions of your bail. I do not regard those conditions as quasi custody.

65. No sentence other than a period of imprisonment is appropriate for the seriousness of your offending.

66. Except for that plea of guilty and the discount of 10%, Mr Nguyen, I would have sentenced to a term of imprisonment of three years.

67. Because of the discount of 10%, the term of imprisonment is two years and eight months.

68. That term of imprisonment will be backdated by 107 days to take into account the period of time that you were refused bail.

69. Ordinarily, Mr Nguyen, the Court is required to fix a non-parole period which is 75% of the head sentence.

70. I find special circumstances to lower that ratio from 75% to 50%.

71. The reasons are: first, your age: secondly, this is effectively your first time in custody; thirdly, your prospects of rehabilitation would be enhanced by a longer period on parole; and fourthly, because imprisonment will be harder for you because of the nature of your son’s condition and your wife’s condition.

72. There will therefore be a non-parole period of one year and four months to date from 24 August 2022 and which will expire on 23 December 2023.   

73. There will be a balance of one year and four months to date from 24 December 2023 and which will expire on 23 April 2025.

74. The officers are here and you will now go with them, thank you.

Decision last updated: 04 May 2023