R v Nguyen

[2020] NSWDC 793

District Court

New South Wales

Medium Neutral Citation:

R v Nguyen [2020] NSWDC 793

Hearing dates:

11 June 2020; 15 June 2020

Date of orders:

15 June 2020

Decision date:

15 June 2020

Jurisdiction:

Criminal

Before:

W Hunt DCJ

Decision:

Convicted. Form 1 taken into account the offender is sentenced to imprisonment for 3 years and 3 months. There is to be a non-parole period of 21 months.

Catchwords:

CRIMINAL LAW – Sentence – Supply large commercial quantity of a prohibited drug – Form 1 – Knowingly deal in the proceeds of crime – Possess prohibited drug – Indicia of drug supply.

Legislation Cited:

Crimes Act

Drug Misuse and Trafficking Act.

Category:

Sentence

Parties:

The Crown
Thanh Tong NGUYEN

Representation:

Counsel:
M Ramage QC – The offender

Solicitors:
Director of Public Prosecutions

File Number(s):

2019/00222584

Judgment

1. HIS HONOUR: Thanh Tong Nguyen stands for sentence in relation to one principal offence of supplying a large commercial quantity of a prohibited drug, being 1031.77 grams in breach of s 25 (2) of the Drug Misuse and Trafficking Act. The maximum penalty for that offence is life imprisonment and there is a standard non-parole period of 15 years imprisonment applicable. I will have regard to the maximum penalty and the standard non-parole period as benchmarks or guideposts in the way contemplated by the authorities and have regard those serious penalties as a recognition of the legislature’s view about the seriousness of such offending.

2. When the matter was before me for reception of evidence and submissions on 11 June 2020 Mr Nguyen confirmed that he wanted me to take into three further offences which are on a Form 1, and I will do so. Those offences are an offence of knowingly dealing with the proceeds of crime being an amount of $50,000, in breach of s 193B(2) of the Crimes Act which on indictment carries a maximum penalty of 15 years imprisonment. Additionally there are two offences of possess prohibited drug being possession of .29 grams of cocaine and possession of .409 grams of amphetamine, each of those offences are in breach of s 10(1) of the Drug Misuse and Trafficking Act and each carry a maximum penalty on indictment of two years imprisonment. It is inevitable that taking those offences into account and particularly the knowingly deal with the proceeds of crime will place upward pressure on the penalty that would otherwise be imposed if Mr Nguyen were being sentenced for the supply charge alone.

3. It is common ground between the parties that Mr Nguyen has been in custody continuously since the day of the offence which was also the day of his arrest on 17 July 2019 and that any sentence to be imposed should be backdated to that date. His time in custody has been solely referrable to these matters.

4. It is also common ground between the parties that Mr Nguyen pleaded guilty and and/or acknowledged his guilt in relation to these matters in the Local Court and that he is to be accorded a full 25% utilitarian discount.

5. The facts are agreed between the parties and I draw the following summary from the agreed facts document.

6. Mid-afternoon on 17 July 2019 police were conducting surveillance in the vicinity of Sydenham Road and Livingstone Road, Marrickville, it is clear that in relation to the police operation that Mr Nguyen and at least one co-offender, Ms Huang Nguyen, were under surveillance for a significant amount of time preceding 17 July 2019. I am going to deal with the facts first in relation to the knowingly deal with the proceeds of crime given that that is the first matter that came to light chronologically on the day in question.

7. At about 2.30 on 17 July police observed a white Toyota HiAce bearing registration number DMB 53D pull into a car park on the western side of Park Road in Marrickville. Police pulled up alongside that vehicle and activated their lights and sirens. This offender was the driver of that vehicle. He produced his licence when requested to and at the time that police searched that vehicle they found $50,000 in Australian currency in five bundles, each of $10,000. The offender was placed under arrest and taken to Newtown Police Station.

8. Later that evening he participated in a record of interview with the aid of a Vietnamese interpreter. Among other things he told police that the $50,000 was remaining from a lump sum payment he had received from a compensation pay out, that he was on his way to the casino when he was stopped by police. Notwithstanding that he regularly drove to the casino from his home in Carramar he had gotten lost on this particular occasion. He was meeting a young female, Huang Nguyen, who had also been stopped by police standing nearby his vehicle when it stopped in Marrickville. He did not really know her but had offered to take her to the casino, told police that he had come into contact with that person by accidently dialling the wrong number when he attempted to call an associate and he had no knowledge of that person’s alleged involvement in money laundering.

9. Police had been lawfully intercepting communications from this offender’s mobile phone service. At about 11.30 that morning he had sent a text message to Huang Nguyen stating, “Hello, it’s five oh when I see you”. At 1pm he received a text message from Huang Nguyen saying, “7 Park Road, Marrickville, call me when you arrive”. To which the offender had replied “Okay”. That address represented the location where the offender was stopped by police.

10. The offender by his plea of guilty acknowledges that he knew that the $50,000 was the proceeds of crime, but the evidence is silent as to the actual source of those funds. After the record of interview at about 9.50 pm a search warrant was executed on a Heckenberg address which the offender had nominated as his former address where his separated wife and child lived. On the top shelf of a wardrobe police located the large resealable bag containing crystallised substance with the label “1K” on it. The contents of this bag was later analysed found to have 997.8 grams of methylamphetamine in it, the analysis disclosed a purity of 77.5%.

11. After that development the offender was interviewed a second time. He identified the substance as being ice. He did not know the technical name for the drug being methylamphetamine but identified it as a drug. He believed that there was about 1 kilogram of ice. He had bought it for the purpose of reselling but could not find a buyer. In the caravan at Carramar where he was currently living there was more ice which he believed to be “30 plus” grams. That ice was not for sale, it was more of a sample to show perspective buyers.

12. The ice was of poor quality, he said he had only tried to sell it once and when the potential buyer did not want it he just left it there.

13. The next day police executed a search warrant on a caravan in Carramar which the offender identified as being his current address. Within a heat sealed bag police located what the offender had described as the sample. The bag was analysed and found to contain 33.97 grams of methylamphetamine, it is that amount of methylamphetamine together with the much larger quantity that makes up the amount averred in the principal offence.

14. During that search police also found five small resealable plastic bags inside a box of lawfully prescribed medication prescribed to the offender, four of those bags were later analysed and found to contain 2.36 grams of amphetamine, a further .97 grams of amphetamine was found in a small resealable plastic bag elsewhere, and a further .76 amphetamine was found in a further small resealable plastic bag in the kitchen area. In total 4.09 grams of amphetamine was seized which makes up one of the possess prohibited drug - the facts for one of the possess prohibited matters on the Form 1.

15. Within one of the kitchen draws police found a further small resealable plastic bag that contained .29 grams of cocaine. During the search police located a heat sealer, heat sealer bags, electronic scales and a number of small glass ice pipes. The small glass ice pipes are consistent with use of methylamphetamine and inferentially by the - consistent with other material about the offender using that drug from time to time the other matters can probably be described as the indicia of drug supply.

16. It is important to characterise the objective seriousness of the principal offence. It is accepted by Mr Ramage on behalf of the offender that the weight is one of a number of matters that can properly be taken into account. Here the weight of the methylamphetamine was just over two times the large commercial quantity, it is clear in the circumstances of this matter that the supply which was the holding of the roughly 1 kilogram of methylamphetamine for the purpose of supplying it in due course was committed for financial reward in the context of the offender himself having a methylamphetamine addiction.

17. I am prepared to accept on the material before me that the $40,000 the offender used to buy the drug was the diminishing balance of a compensation payment that he had received in relation to work related injury. I will return to that injury in due course.

18. Although the offender’s premises were found to have items that were consistent with the indicia of drug supply there is no other evidence that this offence is anything other than an isolated offence that was relatively unsophisticated in the sense that it was a package labelled with “1K” on it and in relatively plain view for the police to discover upon searching the premises. In my assessment there is no aggravated circumstances and there is a number of mitigating factors that I will come to in terms of the offender’s personal case.

19. The objective seriousness of this offending is below mid-range but does not reach the bottom of the range. I do not accept Mr Ramage’s submission that it falls that low. Really the offending is somewhere about the intersection of the top of the low range and the bottom of the mid-range of objective seriousness.

20. In relation to the knowingly deal in the proceeds of crime that that matter because of the amount of money involved, $50,000 is not insignificant but the Court is often called upon to sentence people for much larger sums of money. It is accepted by the prosecution that in months of surveillance beforehand the offender was not surveilled undertaking any other illicit activity either in relation to proceeds of crime moneys or prohibited drugs, and that assists me to arrive at a view that I can sentence the offender on the basis of each of those matters being isolated acts rather than a continuing pattern of criminal misconduct. In relation to the two possess prohibited drugs I am prepared to accept that those matters were items held by the offender for his own use consistent with an ongoing drug addiction which had developed for some period of time. Those two matters of themselves place little upward pressure.

21. I now want to come to some matters that are personal to the offender or accepted.

22. The offender has a limited record of one mid-range PCA and two matters of possess prohibited drug which are consistent with the other evidence about Mr Nguyen’s drug addiction. Ms Martin for the prosecution fairly but properly in my view concedes that the record is so limited as not to disentitle Mr Nguyen to some leniency that would not be available to an offender with more matters on their record.

23. The offender was 59 years of age at the time of the offending. He has had a very difficult background for a range of reasons. He was born in Vietnam and lived there until he was a relatively young man. He was the third born of 12 children. Many of these matters are drawn from the history given to Mr David Green, psychologist, which I am prepared to accept. There is a synchronicity between that material and a range of other subjective material including some references from members of the offender’s family who continued to support him notwithstanding his fall from grace.

24. In terms of historical matters of hardship it is relevant that four of his siblings died in an overloaded boat at the time that they were attempting to flee Vietnam. He has siblings in Australia who support him and his elderly mother lives with another sister in America.

25. One of the signal events of Mr Nguyen’s early 20s was that he was conscripted into the army, and the purpose of that conscription was to so that he could fight in the war with Kampuchea. He ultimately deserted as he did not accept the proper moral basis of that war. In due course his father, who has since deceased, was arrested and held in custody for a week before releasing him with a warning that this offender had to report for duty otherwise he would be shot as a deserter. In due course Mr Nguyen determined to flee Vietnam which he did at the age of 23 in the company of a 14-year old cousin.

26. After a very difficult voyage the offender and his relative eventually arrived in Malaysia where they were held in a refugee camp. In due course the offender gained a job working for the UNHCR as security and in due course become the chief of security on that island. After about 18 months in the refugee camp Mr Nguyen arrived in Melbourne. Early on he sustained a disk injury as a result of lifting a heavy item and in due course received a worker’s compensation payment. After several years out of work he was subject to a laminectomy which decompressed the nerves. The surgery was successful but his rehabilitation was prolonged. In due course he obtained a range of licenses, including a truck driver’s licence, a forklift drivers licence and a security licence.

27. In about 2000 the offender commenced a full-time security job at Canley Heights RSL Club. He was working in that club in June 2002 when he was the subject of an assault by a drunken patron who was one of a number of patrons that he had been obliged to remove from the club on the grounds of intoxication. In due course the offender was punched, thrown on the ground and thereafter punched in the head at which point Mr Nguyen lost consciousness. He regained consciousness when he was already hospitalised. He was then hospitalised for three weeks and in due course needed a cervical spine fusion with what is called a discectomy. He had significant problems, pain and balance issues and in due course needed a further neurosurgical procedure.

28. The offender was assessed by Ms Anthony, psychologist, in 2003 and that assessment diagnosed Mr Nguyen as suffering from a number of cognitive deficits as a result of the injuries to him including a reduced level of intellectual functioning, attention and concentration difficulties, impairment in memory function and the like.

29. That assault and the injuries upon him had a significant effect on the offender. He reported to David Green psychologist that he had tried to kill himself, that he had significant problems with his marriage to his first wife, that marriage eventually ended and he had significant financial difficulties as a result of the provision that he made for his first wife and for his children. Notwithstanding the failure of that marriage he enjoys very warm and supportive relationships with his two children who provided references and have been in court to support him throughout these District Court proceedings.

30. Relevantly Mr Nguyen received a lump sum payment as compensation for the injuries only as recently as 2017. Regrettably he commenced to gamble and in unsustainable amounts, partly because of the receipt of that money and partly as a form of escapism to attempt to forget his difficulties in life.

31. One of the reasons that I am prepared to accord some weight to Mr Nguyen’s account to the psychologist about the circumstances of the offence is that there is nothing self-serving in it. He gives a history of being offered what was said to be cheap amphetamine for $40,000 for 1 kilogram. Additionally he admitted to the police that he held a sample for purposes of sale.

32. It is clear that the offender is enjoying a difficult time in custody, if that is not a contradiction in terms. He remarried a much younger woman and they have a young child. As a result of restrictions in relation to the Covid -19 pandemic visits have been suspended and so that is making life more difficult for him together with English being his second language.

33. Although Mr Green was hesitant to make a formal diagnosis of the offender because of the circumstances of the assessment, based on the assessments of other professionals earlier in time he expressed confidence that the offender suffered a traumatic brain injury, a depressive disorder, an anxiety disorder, substance abuse disorder although now in remission due to his incarceration. Mr Green was comfortable in making a formal diagnosis of gambling disorder.

34. In hindsight Mr Green considers it would have been prudent for the offender’s compensation pay out to have been supervised by a public trustee or some similar entity, given that it is his view that the offender does not have the mental capacity to adequately deal with such a large sum of money. It was Mr Green’s assessment that the offender had a moderate risk of re-offending and that the real risks for this offender relate to relapsing either into gambling or to using methylamphetamine. He recommends that the offender when he is able to do so, and I accept this is much more likely to happen when he has his liberty than otherwise, that he should undertake both a gambling and drug counselling course with the assistance of a Vietnamese speaking counsellor.

35. As I have said his family are supportive of him and his brother, his new wife and both of his children express that the offender has expressed remorse to them and they find it surprising that he offended in the way that he did. Each in their own way say that the offending is out of character and not consistent with the man they know.

36. There are exhibited before me a range of reports that confirm many of the things that Mr Green summarised in his helpful psychological assessment. On the basis of all the material I take the view that the offender has reasonably good prospects for rehabilitation, he has expressed remorse, he is a person of broadly prior good character. He was not truthful with the police when he was first interviewed about the $50,000 but expressed insight and assistance when he was interviewed by the police about the methylamphetamine that had been found at the Heckenberg premises.

37. The Crown did not wish to be heard against a submission made on Mr Nguyen’s behalf that his matter could properly excite a finding of special circumstances. One of the reasons for the finding of special circumstances is that it is his first time in custody. The second reason that I can consider special circumstances are made out is that this is a man who needs a significant time on supervision in the community to endeavour to make good the rehabilitation that he has already made towards rehabilitation while he has been in custody. His mental deficits, particularly the cognitive impairment and the way in which that makes it hard for him to consider the consequences of his conduct means that his moral culpability is reduced and the onerousness of the time in custody serves to mitigate the length of the sentence rather than to be taken into account in a fashion of double counting as grounding a finding of special circumstances.

38. Mr Nguyen is convicted. When I announce the sentence I have taken into account the three offences on the Form 1 and what I have said about their objective seriousness. I find special circumstances. Mr Nguyen is sentenced to a head sentence of three years and three months, to date from 17 July 2019 and expiring on 16 October 2022. I fix a non-parole period of 21 months, which means that his earliest date of release to parole is 16 April 2021. I recommend that the State Parole Authority or Community Corrections consider imposing conditions requiring Mr Nguyen to undertake, both a gambling and drug addiction program with a Vietnamese speaking counsellor.

1. I order that all the drugs seized be destroyed if they haven’t been already.

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Decision last updated: 11 January 2021