R v Nguyen - [2020] NSWDC 206

District Court

New South Wales

Medium Neutral Citation: R v Nguyen [2020] NSWDC 206
Hearing dates: 6 May 2020
Decision date: 18 May 2020
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Aggregate term of imprisonment of 9 years 6 months with a non parole period of 5 years 8 months.

Catchwords: CRIME - SENTENCE - intimidation intending to cause fear of physical harm - supplying a prohibited drug - possess a prohibited weapon without permit - possess unauthorised pistol - drive motor vehicle during disqualification period
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW), s13(1); Drug Misuse and Trafficking Act (NSW) 1985, s25(1); Weapons rohibition Act 1998 (NSW), s7(1); Firearms Act 1996 (NSW), s7(1).
Category: Sentence
Parties:
Regina (Crown)
Jamy Nguyen (the offender)
Representation:
Mr Diggins (ODPP Campbelltown)
Mr Blair (Solicitor for the offender)

File Number(s): 2018/250184; 2018/371612
Publication restriction: Nil

Judgment

Jamy Nguyen, you appear for sentence in relation to five principal indictable offences.
The first principal indictable offence is intimidation intending to cause fear of physical harm.
This involves a contravention of s 13 (1) of the Crimes (Domestic and Personal Violence) Act. The maximum penalty for that offence is 5 years imprisonment. There is no standard non-parole period.
In relation to this principal indictable offence, you have asked me to take into account one matter on a relevant Form 1 which I have certified – that matter also being intimidation intending to cause fear of physical harm.
The second principal indictable offence is supplying a prohibited drug.
This involves a contravention of s 25 (1) of the Drug Misuse and Trafficking Act. The maximum penalty for that offence is 15 years imprisonment. There is no standard non-parole period.
In relation to this principal indictable offence, you have asked me to take into account four matters on a relevant Form 1 which I have certified: namely, two matters of possessing a prohibited drug; one matter of possessing a prescribed restricted substance; and one matter of possessing equipment for the administration of prohibited drugs.
The third principal indictable offence is also supplying a prohibited drug.
In relation to this principal indictable offence, you have asked me to take into account two matters on a relevant Form 1 which I have certified: namely, one matter of possessing a prohibited drug; and one matter of dealing with property suspected of being the proceeds of crime.
The fourth principal indictable offence is possessing a prohibited weapon without a permit.
This involves a contravention of s 7 (1) of the Weapons Prohibition Act. The maximum penalty for that offence is 14 years imprisonment. There is a standard non-parole period of 5 years imprisonment.
In relation to this principal indictable offence, you have asked me to take into account one matter on a relevant Form 1 which I have certified: namely, possessing another prohibited weapon without a permit.
The fifth and final principal indictable offence for which you are to be sentenced is possessing an unauthorised pistol.
This involves a contravention of s 7 (1) of the Firearms Act. The maximum penalty for that offence is 14 years imprisonment. There is a standard non-parole period of 4 years imprisonment.
In relation to this principal indictable offence, you have asked me to take into account two matters on a Form 1 which I have certified: those matters both being possessing ammunition without holding a licence, permit, or authority.
In addition to these five principal indictable offences and the matters on the relevant Form 1, you have consented to this Court dealing with two offences which, absent that consent, would have been dealt with in the Local Court.
Both of those summary matters are offences of driving a motor vehicle during a period of disqualification - each offence being a second or subsequent offence.
These offences involve contraventions of s 54(1)(a) of the Road Transport Act.
The maximum penalty for each offence is 12 months imprisonment and / or a 50 penalty unit fine.
The facts surrounding your offending conduct are contained in a document entitled “Amended Agreed Facts on Sentence”. Slightly recast by me as to style but not substance, they can be re-stated as follows.
As at 12 August 2018 you were approximately 30 years old and you were disqualified from driving from 21 June 2016 to 21 June 2023.
On that day, at approximately 11:15am, Mr and Mrs Johnson and their two young children (who were aged 7 years and 1 year) were travelling in their motor vehicle along Canley Vale Road at Canley Heights. Mrs Johnson was the driver.
Notwithstanding your disqualification, you were also driving along Canley Vale Road at Canley Heights on that day.
It is the driving of that motor vehicle on that date that constitutes the first summary offence of driving whilst disqualified.
Your vehicle came up behind the Johnson’s vehicle. As you did so, you were sounding your horn.
You then revved the engine of your vehicle loudly; and you overtook the Johnson’s vehicle, continuing to sound your horn as you did so.
As you drove off, you disappeared from the sight of the Johnson’s.
However, some time later, the Johnson’s vehicle came to a set of traffic lights which were showing red and your vehicle had stopped at those lights. The Johnson’s vehicle stopped behind yours.
Once the light changed green, you set off and the Johnson’s vehicle followed in the same direction.
Not long after that, you suddenly stopped your motor vehicle at the intersection of two streets. There was no apparent reason for you to do that and so Mrs Johnson attempted to drive around your vehicle.
As she did this, Mr Johnson yelled at you concerning the manner of your driving.
When this happened, you produced a revolver and pointed it in the direction of Mrs Johnson’s head.
It is the possession of that unauthorised pistol on that date which constitutes part of the fifth principal indictable offence. The pointing of that pistol in the direction of Mrs Johnson’s head constitutes the first principal indictable offence. You were yelling incomprehensibly as you did this.
You then pointed that firearm in the direction of Mr Johnson. This constitutes the matter on the Form 1 to be taken into account with the first principal indictable offence. Given the nature of this matter, it will result in a meaningful and significant increase in the sentence for the principal indictable offence.
Both Mr and Mrs Johnson feared that they were going to be shot.
There is no evidence that the children in the Johnson’s vehicle were aware of these two acts of intimidation; or that you were aware that they were in that vehicle.
The Crown cannot prove that, at that time, the firearm was in fact loaded, but that ambiguous situation was not known to the Johnson’s.
Mr and Mrs Johnson reported your behaviour to police and subsequently the vehicle you had been driving was identified through CCTV equipment.
Two days later, on 14 August 2018, you and a female companion were under surveillance by the Regional Enforcement Squad.
The officers who were conducting this surveillance saw you and the woman leaving the Holiday Inn at Warwick Farm.
You and she separated, and you were observed walking towards a motor vehicle – a different one to the one you had been driving when you confronted the Johnson’s two days before.
As you approached this second motor vehicle you were carrying a bag.
Once you entered the vehicle, you started the engine and began to drive through the car park. But you were stopped by police.
It is the driving of that motor vehicle on that date that constitutes the second summary offence of driving whilst disqualified.
The police then conducted a search of both you and the vehicle you had been driving.
Down the front of your pants, the police found the revolver which you had used to threaten the Johnson’s two days beforehand. On this occasion, that firearm was loaded – each of the six chambers contained a live round of ammunition.
It is the possession of that pistol on this occasion which constitutes part of the fifth principal indictable offence.
When the police searched you and your motor vehicle, they found a quantity of various drugs.
In the pockets of your pants, a black case was found containing the following items:

8 resealable bags containing 4.63 grams of methylamphetamine;

7 resealable bags containing 6.63 grams of heroin;

2 diazepam tablets (this is one of the matters to be taken into account on the Form 1 for the second principal indictable offence – because of the nature of that matter, it will not result in a meaningful increase in the sentence for the principal indictable offence);

$1,000.00 in Australian currency; and

a sunglasses case containing a glass pipe (this is one of the matters to be taken into account on the second principal indictable offence – because of the nature of that matter, it will not result in a meaningful increase in the sentence for the principal indictable offence).

Within the motor vehicle the police found 5 mobile phones.
They also found:

3 strips of buprenorphine (this is one of the matters to be taken into account with the second principal indictable offence – because of the nature of that matter, it will not result in a meaningful increase in the sentence for the principal indictable offence);

a flick knife (this is the fourth principal indictable offence);

5 resealable bags containing 154.89 grams of methylamphetamine;

2 resealable bags containing 6.95 grams of methylamphetamine;

one clear resealable bag containing 6.47 grams of heroin;

another resealable bag containing 62.69 grams of heroin;

$11,000.00 in Australian currency; and

a ledger.

In total, 166.47 grams of methylamphetamine and 75.79 grams of heroin were seized. The purity of those drugs is not revealed in the material before me.
It is the possession of that quantity of methylamphetamine which constitutes the second principal indictable offence. It is the possession of that quantity of heroin which constitutes the third principal indictable offence.
After this search was completed you were taken to a police station.
Whilst in that custody, more drugs were found in your clothing, namely, 3.11 grams of Xanax. This is one of the matters to be taken into account with the second principal indictable offence – because of the nature of that matter, it will not result in a meaningful increase in the sentence for the principal indictable offence.
Whilst you were at the police station, a search warrant was executed at residential premises connected with you.
During that search, the police found a box containing 50 rounds of ammunition. This is one of the matters to be taken into account with the fifth principal indictable offence – because of the nature of that matter, it will result in a meaningful increase in the sentence for the principal indictable offence.
The police also search other residential premises associated with you.
During the search of those premises, the police found:

an extended Glock pistol magazine containing rounds of ammunition (this is the matter to be taken into account with the fourth principal indictable offence – because of the nature of that matter, it will result in a meaningful increase in the sentence for the principal indictable offence);

a vacuum sealed bag containing 26 grams of cannabis (this is one of the matters to be taken into account with the third principal indictable offence – because of the nature of that matter, it will result in a slight increase in the sentence for the principal indictable offence);

$39,800.00 in Australian currency; and

a box containing two rounds of ammunition with four spent casings (this is one of the matters to be taken into account with the fifth principal indictable offence – because of the nature of that matter, it will result in a slight increase in the sentence for the principal indictable offence).

The total amount of currency that the police found on you, in one of your motor vehicles, and in the second set of premises which were searched, totalled $51,800.00. This is one of the matters to be taken into account with the third principal indictable offence – because of the nature of that matter, it will result in a meaningful and significant increase in the sentence for the principal indictable offence.
It is necessary for me to make findings as to the objective seriousness of each offence for an offence of its kind. The first principal indictable offence is above the mid-range and into the upper range; the second is slightly below the mid-range; the third is equidistant between the middle and the bottom of the range; the fourth is towards but not at the bottom of the range; and the fifth is at the mid-range.
There are no additional aggravating factors for any of the principal indictable offences.
In relation to the two summary offences, the first of those offences is a mid-range offence; and the second is towards but not at the bottom of the range.
There are no additional aggravating factors in relation to either of those two summary offences.
At the time that you committed these offences you were 30 years old. You are now 31 years of age.
You were born in Sydney and you were raised by your mother, who was only 16 years old when you were born. You did not meet your birth father until you were 21 years old.
Your mother, however, had support from her brother and her mother.
In your early years, you and your mother moved about quite a bit, but from the age of 9 you had a more stable home life.
There was certainly no abuse or neglect in the home that your mother provided for you.
You did, however, have some problems at school. You may have had ADHD in early primary school - but, if you did, it was not diagnosed or treated.
Whatever the cause, you had learning difficulties at school.
You ultimately completed Year 10 and then began various vocational courses through TAFE, but you did not have the commitment or the confidence to finish them.
Such employment as you have had in the following years has been short-term or casual labouring or packing jobs. Your longest continuous job was working in cold storage packing at a time when you were living in Melbourne. You were working as a casual labourer at the time of the offences with which I am concerned.
You have had a long history of alcohol and illicit drug use.
When you were 12 years old you started using tobacco - then alcohol and cannabis. Gradually, you began using ecstasy, cocaine and ketamine.
At the age of 14 you started using ice, which developed into a daily habit when you were 16 years old.
In preparation for this sentence hearing, you were examined by a psychologist who diagnosed you with stimulant use disorder and opiate use disorder, both in the severe range of clinical symptoms.
In addition to these illicit drugs, you have also used illicitly obtained sedatives and barbiturates such as Xanax, Valium and Serepax.
That psychologist diagnosed you with depression, anxiety, and stress disorders in addition to the substance abuse disorders.
Unsurprisingly, with this history, you have a very significant criminal history which dates from when you were 16 years of age.
Drug use – or, more correctly, drug abuse – has been a factor in most of your offending.
As an adult, there are numerous offences of violence, possessing prohibited weapons, and driving whilst disqualified. Given that history, the submission by the Crown that (at least, in relation to the first principal offence) that history did not constitute an additional aggravating factor was generous. Your criminal history, however, does not entitle you to the leniency which, in appropriate circumstances, is extended to a first offender.
You have spent periods of time in custody as a juvenile and very significant periods of time in custody as an adult. The longest continuous period in the community as an adult has been the 16 months immediately prior to the current offences. In fact, 42 per cent of your adult life has been spent in custody.
In relation to the principal indictable offences concerning the supply of prohibited drugs, clearly, you were not merely a user-dealer. The significant quantity of drugs; the number of plastic bags; the number of mobile phones; the ledger; the firearm; and the significant amount of cash, all indicate that you were dealing, not only to maintain your own drug addiction, but also for profit.
Insofar as the firearm is concerned, I am not persuaded, on the balance of probabilities, that it was in your possession because of some paranoid fear but, rather, I am satisfied beyond reasonable doubt that it was part and parcel of your actual drug supply operations.
You have had two significant relationships as an adult.
Your first relationship was with a young woman when you were a teenager. There are two children born of that relationship. They are now 8 and 10 years of age.
Sadly, their mother recently committed suicide and you feel an increased need to involve yourself in their lives.
Also, there was a second relationship in which you were involved at the time of your present offending.
A child has been born to that relationship whilst you have been in custody. Although that intimate personal relationship has ended, that child’s mother has continued to visit you in custody.
You also feel a need to be involved in the life of that child.
Whether you will be permitted to involve yourself in the lives of these children when you are released from custody – and to what degree - is something over which you have only limited influence. If those charged with the care and protection of those children at that time feel that your involvement would not be helpful, then your involvement may be significantly reduced. And this may have a negative impact on your rehabilitation.
That said, your present desire to be involved in their lives is a positive factor in assessing your prospects of rehabilitation.
Another positive factor is the ongoing support of your mother and your second ex-partner.
You have indicated an intention to participate in some of the drug rehabilitation programs currently available to you in custody. Of course, these programs were available to you on the numerous other occasions that you have been in prison. However, you are now a more mature man and, with some caution, I accept that you are now more strongly committed to rehabilitation.
Although you had some disciplinary infringements whilst in custody following your most recent arrest, there have been none since 28 June 2019. You have not accessed drugs whilst in custody since at least 7 November 2019.
You expressed remorse to the psychologist who prepared the report; you have prepared a letter to the victims of the intimidation offence; and you have expressed remorse in the witness box. After some reflection, I accept the genuineness of those expressions of remorse.
On balance, I regard your prospects of rehabilitation as being guarded. They would be enhanced by a longer period on parole.
For that reason, and because of the impact of the coronavirus pandemic - which will make incarceration for you more difficult than ordinarily - I intend making a finding of special circumstances to vary the ratio of the relevant head sentence to the non-parole period.
Notwithstanding your underlying psychological condition, considerations of general and specific deterrence are fully engaged, as is the need to protect the community – as well as the need to encourage your rehabilitation.
In relation to each of the principal indictable offences and the two summary offences, I am satisfied that no sentence other than a period of imprisonment is appropriate.

I intend imposing an aggregate sentence.
Accordingly, it is necessary for me to state the indicative sentences underpinning that ultimate aggregate sentence.
In formulating the indicative sentences, I shall allow a 25 per cent discount for your early pleas in relation to each offence; and I shall take into account any relevant matter on a Form 1 in the manner I have already indicated.
In relation to the first principal indictable offence, the indicative sentence is 4 years 10 months minus 25 per cent, i.e. 3 years 7 months.
In relation to the second principal indictable offence, the indicative sentence is 7 years minus 25 per cent, i.e. 5 years 3 months.
In relation to the third principal indictable offence, the indicative sentence is 6 years minus 25 per cent, i.e. 4 years 6 months.
In relation to the fourth principal indictable offence, the indicative sentence is 12 months minus 25 per cent, i.e. 9 months.
In relation to the fifth principal indictable offence, the indicative sentence is 8 years minus 25 per cent, i.e. 6 years. The indicative non-parole period is 3 years 7 months.
In relation to the first summary offence, the indicative sentence is 8 months minus 25 percent, i.e. 6 months.
In relation to the second summary offence, the indicative sentence is 4 months minus 25 per cent, i.e. 3 months.
Jamy Nguyen, of the five principal indictable offences and the two summary offences, I sentence you to an aggregate term of imprisonment of 9 years 6 months.
I fix a non-parole period of 5 years 8 months to date from the date of your arrest, namely, 14 August 2018, and which will expire on 13 April 2024.
I fix a balance of 3 years 10 months to date from 14 April 2024 and which will expire on 13 February 2028.

Decision last updated: 18 May 2020

Medium Neutral Citation:	R v Nguyen [2020] NSWDC 206
Hearing dates:	6 May 2020
Decision date:	18 May 2020
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 9 years 6 months with a non parole period of 5 years 8 months.
Catchwords:	CRIME - SENTENCE - intimidation intending to cause fear of physical harm - supplying a prohibited drug - possess a prohibited weapon without permit - possess unauthorised pistol - drive motor vehicle during disqualification period
Legislation Cited:	Crimes (Domestic and Personal Violence) Act 2007 (NSW), s13(1); Drug Misuse and Trafficking Act (NSW) 1985, s25(1); Weapons rohibition Act 1998 (NSW), s7(1); Firearms Act 1996 (NSW), s7(1).
Category:	Sentence
Parties:	Regina (Crown) Jamy Nguyen (the offender)
Representation:	Mr Diggins (ODPP Campbelltown) Mr Blair (Solicitor for the offender)
File Number(s):	2018/250184; 2018/371612
Publication restriction:	Nil