R v Nguyen

[2022] NSWDC 452

District Court

New South Wales

Medium Neutral Citation:

R v Nguyen [2022] NSWDC 452

Hearing dates:

7/3/22-21/3/22, 31/3/22, 8/7/22, 11/8/22

Date of orders:

11/8/22

Decision date:

11 August 2022

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 12 years with a NPP of 8 years (18/5/21-17/5/29). I find special circumstances.

The indicative sentences are:

Count 1 Supply large comm qty methylamphetamine – 10 years with NPP 6 years 8 months.

Count 2 Manufacture large comm qty methylamphetamine – 11 years with NPP 7 years 4 months.

Re seq 4 on the s166 certificate – I convict the offender but impose no other penalty. I make the forfeiture order signed and dated by me today – the offender is to forfeit $3470 to the State.

Catchwords:

Crime – Sentence – Supply – Manufacture - Large commercial quantity of methylamphetamine

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v The Queen (2013) 302 ALR 192

Nguyen v R [2007] NSWCCA 15

Category:

Sentence

Parties:

NSW DPP – Crown
Tri Van Nguyen - Offender

Representation:

Ms A Bonnor for Crown
Ms E Ozen for Accused

File Number(s):

2017/235713

SENTENCE

1. On 21 March 2022, after a trial before a jury, the offender, Mr Tri Van Nguyen was found guilty of counts 1 and 2 on the indictment, but not guilty of count 3. Count 1 is an offence under s 25(2) of the Drug Misuse and Trafficking Act of supplying a prohibited drug, namely, 1.262 kilograms of methylamphetamine, being not less than a large commercial quantity. Count 2 is an offence under s 24(2) of the Drug Misuse and Trafficking Act of manufacturing a prohibited drug, namely, 2,763 grams of methylamphetamine oil, being not less than a large commercial quantity.

2. The maximum penalty for each offence is life imprisonment and each offence has a standard non parole period of 15 years specified. The maximum penalty and standard non parole periods are important guideposts to which I have had regard.

3. It is for me to determine the facts for sentence which must be consistent with the jury verdict. Any matters in aggravation must be proved beyond reasonable doubt, whilst matters in mitigation need only be established on the balance of probabilities.

FACTS

4. I find the following facts: the offences came to light on 2 August 2017, when police entered a unit at 28 Meredith Street, Bankstown. Police arrived at the door of the unit and, after shouting, "Police. Search warrant", and knocking several times, to which they received no answer. They then tried to open the door by force, using a 15 kilogram battering ram. However, the door was fortified from the inside and it took the efforts of a number of police officers over a period of about five minutes and approximately 60 impacts with the door before the door was broken in. After gaining entry, police found the offender, who was the sole occupant, on a very large balcony attached to the unit. Inside the unit scattered through various rooms, police found a clandestine drug laboratory involving numerous pieces of equipment, as well as a re crystallisation process involving a total of 2,763 grams of pure methylamphetamine oil. This oil was found inside buckets and pots located on the balcony, in the main bedroom and in an ensuite bathroom. The agreed fact document, exhibit 11 in the trial, states that 2,763 grams of methylamphetamine oil was capable of being converted to 3,438 grams of crystal methylamphetamine. Police also found a total of 1.62 kilograms of crystallised methylamphetamine. This crystallised form of the drug was found in various locations in the unit, including the balcony, bedrooms 1, 2 and 3, the lounge room and the main bathroom. The largest individual quantity was 670 grams which was inside a bucket in bedroom 1 and another large quantity of 488 grams which was 77.5% pure, was found in a foil tray in bedroom 2. The other ten quantities, ranging from just over 1 gram up to 232 grams were found in various locations, although the purity of these other quantities was not tested.

5. Police also found outside in a ground floor common area of the units and directly below the balcony of the apartment, a "can crusher" box which contained 974 grams of methylamphetamine in a crystal form with a purity of around 73%. These drugs were the subject of count 3 on the indictment on which the jury found the offender not guilty.

6. Exhibit 11 in the trial recorded an agreed fact as to the potential bulk and street values of 2.5 kilograms of crystal methamphetamine with a purity between about 73 and 77.5%. Calculated on a per kilogram basis, this evidence indicates that 1 kilogram of crystal methamphetamine of those approximate purities would be worth between about $84,000 and $104,000 in a wholesale or bulk quantity, and between about $311,000 and $830,000 per kilogram at a street value.

7. Although not all of the quantities of methylamphetamine found inside the unit were tested, I am satisfied, beyond reasonable doubt, that they were all the product of a manufacturing process which had been carried out within the unit and that, on this basis, I conclude that all of the crystal methylamphetamine inside the unit was of a purity reasonably similar to that which was tested. In other words, around 70% purity. On this basis, the 1.62 kilograms that is the subject of count 1 had, conservatively, a potential bulk value up to about $200,000 and a potential street value of up to about $1 million.

8. Crystal methylamphetamine residue was detected on various items inside the unit, including gloves, masks, electric fans, cloths, glass bowls, foil and plastic trays, digital scales, a portable hotplate and portable gas stove and other items, as well as on various surfaces in several rooms within the unit.

9. As noted in exhibit 11 at trial, one method for refining methylamphetamine oil into crystal methylamphetamine is to add aqueous hydrochloric acid to the oil, heat it to a specific temperature and then allow it to cool to form crystals. Police found a number of items within the unit which may have been used in this process.

10. As also recorded in exhibit 11, another method is by rinsing away impurities in a solvent, such as acetone and suspending the methylamphetamine solid in a sieve. Metal sieves found inside the unit may have been used in such a process and tins of acetone were also found in the unit.

11. An analysis by a forensic chemist of crime scene notes taken from the unit concluded that methylamphetamine had been manufactured by refinement inside the unit. When arrested, the offender was wearing a jumper with white staining on the front and also a pair of trousers which had some discolouration on the right knee. Tests of fabric taken from these items of clothing were found to contain methylamphetamine. Also, DNA testing on a number of items found inside the premises was compared with a DNA sample taken from the offender. Those tests indicated that a mixed profile of DNA arising from at least three persons was on the inside of gloves found in the main bedroom and that the major component of that DNA came from the offender. Testing of a face mask which was item C001 found in the lounge room revealed DNA from at least two persons and that the offender could not be excluded as one of the contributors, but that it was 100 billion times more likely that this DNA came from the offender and an unknown, unrelated person, than if it originated from two unknown, unrelated persons in the Australian population.

12. Testing of another item, namely a mask which was item I005 which was found in the kitchen revealed DNA from at least two persons, neither of which were the offender and that the major contributor was "person B". Money was also found inside the unit, namely, $870 which was found in a satchel belonging to the offender and $2,600 in the pocket of a jacket on a bed in bedroom 2.

13. The apartment at Meredith Street, Bankstown was, at the time of the offences, owned by the offender who had, at an earlier stage lived there with his family. However, the apartment had been leased for some time to a Mr Lam who subsequently moved out and on 1 April 2017, the offender signed a tenancy agreement which leased the property to a Mr Lin for 12 months. The offender, however, continued to keep various of his own possessions at the unit, including clothing, family photos and personal documents. The 2017 lease to Mr Lin contained an additional condition which said that the landlord, that is, the offender, was entitled to come to the premises one to two times per week to "look after his garden".

14. In the trial, there was no dispute that a large garden of plants was located on the balcony of the premises. An integral part of the offender's defence at trial was that his presence in the unit at the time police entered was entirely innocent and due to his attending his plants and that he had no involvement in any drug manufacture or possession. The jury's verdicts of guilty on counts 1 and 2, which were hardly surprising, clearly rejected this evidence.

15. Nonetheless, there is no dispute, and I am satisfied for the purposes of sentence, that the offender was not the only person involved in the activities detected in the premises. It is clear on the evidence that, at least two and, perhaps, three other persons also attended the premises in the lead up to the arrest of the offender. Evidence at trial indicated that the offender had a relationship of some kind with the now deceased solicitor, Mr Ledinh Ho, from whom he originally bought the apartment and with whom he was involved in a cafe business in Bankstown where, in 2018, Mr Ho was murdered by a gun man. There is no suggestion, of course, that the offender had any connection with Mr Ho's murder.

16. Evidence was called in the trial from a Mr Chea who said that he would regularly attend the unit to buy drugs from Mr Lin or Mr Ho, although not, according to him, in the presence of the offender. Mr Chea also claimed that his DNA which was found on a mask in the premises was located there because he had done some repairs to a door in the unit. I place little weight, however, on the evidence of Mr Chea rather than to confirm that he was a regular attendee at the unit. In my view, much of his evidence, and his manner of giving it, lacked credibility. His evidence to the effect that the offender had no knowledge of the presence of drugs, which would be hidden away if he walked in, is not consistent with the jury's verdict, lacks plausibility, and was, in my view, an attempt to assist the offender in his defence of the charges.

17. An agreed fact at trial, exhibit 11 was that at about 1pm on 2 August 2017, the offender drove an Audi Q7 which was registered to Mr Ho, and that this particular vehicle was found in the garage of the unit block on 3 August 2017. There is also evidence that, on 2 August 2017, the offender attended a Repco shop where he bought a number of items, including a funnel, gloves and de mineralised water. While the offender claimed in evidence at the trial that these items were bought either at the request of Mr Ho or for innocent purposes, including a fish tank, I am satisfied that the purchases were connected with the drug manufacturing process which was being conducted within the unit. I am satisfied, beyond reasonable doubt, that the offender bought those items with knowledge and with the intention that they be used or that some of them be used in connection with the drug laboratory operation.

OBJECTIVE SERIOUSNESS

18. I turn then to consider the objective seriousness of the two offences.

19. Although the seriousness of the two offences is clearly marked by the maximum of life imprisonment and the standard non parole period of 15 years, it is important that I make some assessment of where, on a theoretical scale of seriousness, these two particular offences lie.

20. It is relevant that I have regard to the quantity of drugs involved, although this is not a determinative factor. The quantity of crystal methylamphetamine for the purposes of count 1 was more than three times the large commercial quantity, while the count 2 offence involved an amount that was over five times the large commercial quantity. I am conscious, however, that the large commercial quantity has no upper limit and, so, it is possible, as demonstrated by many matters that come before this Court, for offences to involve much larger quantities. Nonetheless, the quantities of drugs in this matter are substantial and were worth a great deal of money.

21. It was submitted on behalf of the offender that I would not be satisfied that the offences, particularly, the manufacturing offence, were at all sophisticated. In this regard, it was argued that every offence involving the manufacturing of a prohibited drug will involve a level of sophistication because of the need for equipment, knowledge and chemicals to be used and obtained and set up and for chemical processes to be employed. I accept that this is so. However, it does seem to me that there was a significant level of planning and sophistication involved in the offences in this case which is demonstrated, in part, by the quantity and variety of equipment and chemicals, the fortified nature of the door and also the fact that, as trial exhibit 11 sets out, the operation was capable of producing methylamphetamine of a very high level of purity, namely, 73 to about 75%.

22. It is also important that I make an assessment of the offender's role in relation to each offence. The jury's verdict on count 2 indicates that it was satisfied, beyond reasonable doubt, that the offender was intentionally involved in acts aimed at making or producing a large commercial quantity of a prohibited drug, namely, with respect to the 2,763 grams of methylamphetamine oil that was found in the unit. Similarly, the jury's verdict on count 1 indicates that it was satisfied, beyond reasonable doubt, that the offender, knowingly had possession of a large commercial quantity of a prohibited drug, that being the 1.62 kilograms of crystal methamphetamine that was found in the apartment.

23. I am in no doubt that these findings by the jury were justified and correct and that the offender had actual knowledge that the drug being manufactured was methylamphetamine and had actual knowledge that there was a large commercial quantity of methylamphetamine inside the unit.

24. This follows, firstly, from the fact that the offender was the only occupant in the fortified unit and that traces of methylamphetamine were found on his clothes. This conclusion is also supported by the presence of the offender's DNA on gloves and a mask which were found in the unit. Further support for the conclusion that the offender had actual knowledge of the drugs and an intentional involvement in manufacturing comes from the evidence that he had earlier that day bought items from a Repco shop, some of which were associated with drug manufacture. There is, in addition, the fact that the offender was the owner of the unit in which the drug laboratory was operating. Furthermore, there is the fact that in 2005 the offender was sentenced for supplying a commercial quantity of heroin which shows that he was clearly not a person who was naive in relation to prohibited drugs.

25. As is often the case in drug related matters, the precise role that the offender and others performed is impossible to determine. Although I am not able to be satisfied beyond reasonable doubt that the offender was "the cook" or "the chemist" or "the master mind" behind the chemical processes being undertaken, I am satisfied, as was submitted by the Crown, that the offender was an active participant, with others, in the manufacturing process, that is the subject of count 2. I am satisfied that his role was more than that of a simple warehouseman or watchman.

26. In relation to count 1, the deemed supply offence, I am, again, satisfied that the offender was an active participant, with others, in the possession of the crystal methylamphetamine that was found in various locations in the unit and which was in his possession for the purposes of supply. Again, I am satisfied that his role was more than just that of a warehouseman, minder or courier.

27. It was argued on behalf of the offender that I should find that he held a subordinate role to others, such as Mr Ho. However, I am not satisfied that this is so and, on the evidence, I am not satisfied as to what role, if any, Mr Ho or others, such as Mr Chea, had in the group. Suffice to say that I am satisfied beyond reasonable doubt that the offender held a senior role in the group of people responsible for the manufacturing process and deemed supply that are the subject of the two offences before the Court.

28. While I am not able to be satisfied beyond reasonable doubt that he was "the principal", or indeed, whether there was any single individual who can be described as the "principal", I am satisfied that the offender held a senior role in the group. Furthermore, I am satisfied that his intentional involvement in each of the offences demonstrates a relatively high level of moral culpability.

29. I assess the objective seriousness of the count 1 supply offence as being slightly below the mid-range and I assess the count 2, manufacture offence as being just into the mid-range of objective seriousness.

30. Turning, then, to consider any aggravating matters, in my view, and while this does not impact on the objective seriousness of the two offences, the offender's prior history of committing in 2003 an offence of supply commercial quantity of heroin is an aggravating feature in the current sentencing exercise. That was an offence, as noted in the Court of Criminal Appeal judgment, Nguyen v R [2007] NSWCCA 15, where the offender was at the top of the hierarchy of a large well planned and sophisticated scheme for the commercial supply of heroin and where the amount of heroin supplied was at the upper end of the commercial quantity.

31. The offender was released to parole on that sentence on 19 May 2009, after which he was subject to parole until 19 May 2013. The serious offences now before the Court were committed just over four years after that parole expired and the offences before the Court clearly involved, as I have found, a considerable degree of deliberation and planning. They cannot be described as an uncharacteristic aberration. Rather, and given the serious planned and deliberate nature of the previous offending and the current offending and the offender's senior role on each occasion, I am satisfied that the offender has manifested a continuing attitude of disobedience of the law in relation to offences involving prohibited drugs. Also, the offender's prior drug conviction is a matter which reinforces my finding that his moral culpability for the offences now before the Court is, at least, relatively high.

32. It was argued by the Crown that the offences before the Court were committed due to greed. While I accept that this is so, that, in my view, can be said about almost all offences involving the manufacture or supply of large commercial quantities of prohibited drugs. It is not a matter which, in my view, increases the objective seriousness of either offence and does not elevate the offender's moral culpability beyond that which I have already described.

33. The offender is also charged with a related offence under s 139C(2) of the Crimes Act 1900, that being an alleged offence of dealing with property, namely, $3,470 cash, in circumstances where there are reasonable grounds to suspect that that cash is the proceeds of crime. Of this cash, $2,600 was found in the pocket of a jacket in bedroom 2, where a number of items belonging to the offender were found and the remaining $870 was found in a satchel belonging to the offender which was in the lounge room.

34. It was argued by the offender that there was nothing about the cash which suggested that it was proceeds of crime. For example, it was not arranged into bundles and was not found in a manner or place that otherwise would suggest that it was proceeds of crime.

18. In his evidence to the jury the offender said that in the period leading up to August 2017, he was paying $3,200 per month rent for the family's unit in Bathurst Street, Sydney and that he would receive $700 per week in rent under the lease of the Bankstown unit. He also said at transcript p 246, that in 2017, the money he was receiving from Mr Ho, associated with their cafe business, became too low and that he could not survive on that money and that, as a result, he started doing work on bonsai trees to make money. The offender also claimed in evidence that he would make money from fixing up other people's bonsai plants and also made some money each week from buying, improving and selling other bonsai plants.

19. In my view, the offender's evidence about this so-called bonsai business lacked credibility in a number of respects. Firstly, it was relied on by him as an attempted explanation for his presence in the unit and his denial of knowing anything about the drug operation or having any role in it. Clearly, and not surprisingly, the jury rejected this implausible evidence, as I do. Secondly, and even if the offender was making some income from bonsai trees, which is unlikely, in my view, I do not accept that any such income would have been at a level where he would have had amounts of cash in the sums that police found inside the unit.

20. The fact remains that the offender was found inside an operating drug laboratory, the operation and management of which he had a senior position and with methylamphetamine worth hundreds of thousands of dollars, scattered throughout the unit. The presence of cash in these circumstances is itself a matter which creates a strong suspicion that that cash was the proceeds of drug sales. Furthermore, however, and based on the evidence of the offender about his income and expenditure around this time, it seems to me, for the purposes of s 193C(3)(e) that the cash found in the unit was grossly out of proportion to the offender's income and expenditure around that time.

21. I am satisfied, beyond reasonable doubt, therefore, that there are reasonable grounds to suspect that the $3,470 was the proceeds of crime and I find the offender guilty of that offence.

SUBJECTIVE MATTERS

39. Turning then to subjective matters, limited material has been placed before me about the subjective circumstances of the offender. He is now aged 58 and was 53 at the time of the offences.

40. In December 2005, he pleaded guilty and was sentenced for an offence of supplying heroin which was not less than the commercial quantity. The maximum penalty for that offence was 20 years' imprisonment and with two other matters being taken into account on a form 1 document, the offender was sentenced to a total term of ten years with a non-parole period of six years. An appeal against the severity of that sentence was dismissed on 7 February 2007 and a copy of the Court of Criminal Appeal's decision was placed before me in these proceedings.

41. As noted in that judgment, the offender was born in Saigon during the war in Vietnam and he and his elder brother grew up largely in an orphanage, as his father had been killed in the war and his mother had died the same year. The offender's childhood was one of poverty and emotional deprivation and when he was 14, the orphanage was closed down, after which the offender tried to run away instead of participating in a "relocation program". However, he was caught and sent to a labour camp from which he escaped after one year. His elder brother apparently escaped from Vietnam by boat, but has not been heard from since.

42. Although the offender's schooling was interrupted, he did complete year 10 when he was 17 years of age. He then worked as a farmer for about seven years before escaping from Vietnam by boat in 1988. He arrived in Thailand where he spent two years before migrating to Norway. In 1992, he migrated to Australia after being sponsored by a Buddhist organisation for which he worked in Canberra as a welfare officer. He then moved to Sydney where he worked in a factory and subsequently spent time living between Melbourne and Sydney. He had originally married in Vietnam in 2000, however, his then wife was unable to obtain a Visa to enter Australia and the relationship broke down in 2003. At the time of his arrest in 2003, the offender was unemployed and living alone. At that time, he had an addiction to gambling and heroin, but had no prior criminal history.

43. The offender met his current wife in 2011 and they married in 2014. They have one child, a son, who is now eight years old. An affidavit from the offender's wife was admitted in the sentence proceedings. That affidavit indicates that the offender's wife maintains support for him and speaks to him regularly by telephone. According to the offender's wife, their son misses his father and regularly asks where he is, but has been told simply that he is away for work and will be away for a long time.

44. The offender's wife has a hypothyroid condition which leaves her very lethargic and her symptoms have worsened since having to take on the sole responsibility for the child's care. She also indicates that without the offender's support, she struggles to afford mortgage payments and relies on Centrelink. As is stated by the offender's wife in her affidavit, the offender's imprisonment has been very difficult for her and her son and also for the offender who has been held at Bathurst Correctional Centre. This, apparently, has resulted in the offender receiving no personal visits due to the travel involved for his family. There has also, apparently, been no audio-visual visits, although I have not been informed why this is so.

45. I have taken into account the obvious distress and hardship that the offender's incarceration has caused, not only to his family, but also to himself, and that this distress and hardship will likely continue throughout this period in custody. While the hardship was not said to be exceptional such that it should significantly impact upon the otherwise appropriate sentence, I have taken this into account in a general way as part of the overall sentencing discretion that I must exercise.

46. The 2013 High Court decision in Bugmy v The Queen (2013) 302 ALR 192 was quoted in the sentencing submissions, although it was not submitted that the offender's background reduced his moral culpability, which I consider to be relatively high.

47. While I accept that the offender comes from a difficult and disadvantaged background and is not overly educated, I have no doubt that he was well aware and closely engaged in what was going on in his unit and, as I have said, had a fairly senior role in those activities. Although the offender's difficult background does not reduce his moral culpability, I have taken that background into account in a general way in the sentencing synthesis that I must carry out.

REMORSE AND REHABILITATION

48. I turn then to consider issues of remorse and prospects of rehabilitation.

49. The offender maintains his innocence and, so, there is no remorse. The absence of remorse, taken together with the offender's history of offences of a similar character makes it difficult to form a positive view about his prospects. No clinical material has been placed before me about his future risk of reoffending. However, a matter of significant concern is that he committed a very serious drug offence in 2003 for which he was imprisoned from 2003 until his release to parole on 19 May 2009. The parole period for that earlier offence expired on 19 May 2013 and, so, the current offences occurred just over four years later.

50. On the positive side, there is the fact that he has the support of his wife and child. Hopefully, this may provide some motivation for the offender to avoid similar offences in the future, although it is concerning that this family support which has been available to the offender since 2011 did not deter him from committing the offences now before the Court. In my view, his prospects of rehabilitation can only be described as uncertain and guarded.

THE PANDEMIC

51. At least part of the offender's period in custody to date has been served during the current pandemic and his future custody is also likely to be affected, to some degree, by the impacts of that pandemic. I am aware that the pandemic has caused significant hardship to persons held in custody over the past couple of years and is likely to continue to do so, to some extent, into the future. The adverse effects have included regular lockdowns, restrictions on contact with family and friends, restrictions on access to work programmes and medical treatment, and the general anxiety arising from the potential outbreak of disease. These are matters which have and are likely to continue to have adverse impacts on the offender's experiences in custody and also, on his family's ability to have contact with him and I have taken these matters into account.

52. I have had regard to the important purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, in particular, the need to ensure that the offender is adequately punished; the need to prevent crime by deterring the offender and others; the need to protect the community from the offender; make him accountable for his actions; denounce his conduct; and recognise the harm done by these offences to the community or at least potential harm. I have also, however, had regard to the important purpose of promoting the rehabilitation of the offender.

53. I am satisfied that no penalty other than full time imprisonment is appropriate in relation to each of the two offences on the indictment. I intend to impose an aggregate sentence.

TOTALITY/ACCUMULATION

54. Given that I am sentencing for two offences, it is necessary that I have regard to whether the sentence for each offence should be cumulative upon one another and, if so, to what extent. In this matter, while there are two different types of offence, there is no doubt that the drugs that are the subject of the count 1 supply offence were a product of an ongoing manufacturing process that included the offence in count 2.

55. It was argued by the offender that the supply offence was a product of the manufacturing process that was going on in the unit and, therefore, that the sentences for each offence ought to be concurrent or largely so. While I accept that the methylamphetamine that is the subject of the supply offence was manufactured in the unit, the fact remains that that methylamphetamine involved a discrete quantity of finished product ready for supply, while the count 2 manufacture offence involved a stage in the preparation of a fresh batch of drugs for supply.

56. In my view there does need to be some degree of notional accumulation, so as to acknowledge the two discrete aspects of offending, although the degree of accumulation should not be great.

57. In determining the overall sentence, I have had regard to the principle of totality and the importance of not imposing a sentence that might be described as crushing. Nonetheless, it is still necessary for me to impose a sentence which adequately reflects the objective seriousness of the offences and the offender's moral culpability for them.

DETERMINATION

58. I convict the offender of counts 1 and 2 and also of the offence under s 193C(2) of the Crimes Act 1900.

59. In relation to the $3,470 cash that is the subject of that s 193C(2) offence, I am satisfied that that cash is tainted property. Having taken into account the evidence or more correctly the lack of evidence about the use ordinarily to be made of that cash and any hardship that might reasonably arise, I am satisfied that it is appropriate to order, pursuant to s 18 of the Confiscation of Proceeds of Crime Act, that that cash be forfeited to the State and I have today signed an order to that effect.

60. As I intend to impose an aggregate sentence, I must nominate the indicative sentences that I would otherwise have imposed. The indicative sentences are as follows: for the count 1 offence, being the supply offence, the indicative term is imprisonment of ten years with a non-parole period of six years, eight months. For the count 2 manufacture offence, the indicative sentence is 11 years' imprisonment with a non-parole period of seven years, four months. The actual aggregate sentence I will announce in just a moment.

61. I have made a finding of special circumstances for adjusting the ratio of non-parole period to head sentence based on the offender's difficult and traumatic background which I accept is likely to have left him with lasting psychological impacts that have and will make his time in custody more difficult. I base my findings of special circumstances also on the isolation that has been and will continue to be experienced by the offender, given his limited English and the restricted contact that he has had and is likely to have with his wife and child while in custody, given her medical condition and need to care for their young son on her own.

62. I impose a head sentence of 12 years' imprisonment. I set a non-parole period of eight years. As the offender has, to date, spent 450 days in custody, I take into account that custody and order that the sentence date from 18 March 2021. The head sentence will, thus, expire on 17 May 2033 and the non-parole period will expire on 17 May 2029. In relation to the offence under s 193C(2), pursuant to s 10A of the Crimes (Sentencing Procedure Act) 1999, I convict the offender of that offence, but impose no other penalty.

63. HIS HONOUR: Ms Crown, Ms Howard, anything to raise?

64. BONNOR: No, your Honour.

65. HOWARD: No, nothing further, your Honour.

66. HIS HONOUR: Thank you. Thank you, Mr Ho.

67. INTERPRETER: Thank you, your Honour.

68. HIS HONOUR: The Court will adjourn.

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Decision last updated: 06 October 2022