R v Nguyen

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NGUYEN
[2018] SASCFC 65
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Bampton)
19 June 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES
Appeal against a sentence of nine years with a non-parole of four years and six months imposed in the District Court following a conviction of two offences of trafficking in a commercial quantity of a controlled drug contrary to s 32(2) of the Controlled Substances Act 1984 (SA), an offence of money laundering contrary to s 138(1) of the Criminal Law Consolidation Act 1935 (SA) and an offence of unlawful possession contrary to s 41 of the Summary Offences Act 1953 (SA).
The appellant was convicted after a short trial by Judge alone, in which the primary dispute was the lawfulness of the search of a car driven by him which revealed evidence of the commission of the offences. Accordingly, the appellant was not entitled to any reduction in penalty for a plea of guilty. Moreover, after his conviction there was a disputed facts hearing in which the appellant claimed that he was a mere conduit for the drugs and money which belonged to another person. The Judge rejected his account.
Held per Kourakis CJ (Stanley and Bampton JJ agreeing), dismissing the appeal:
1. The reasons of the sentencing Judge were adequate (at [23]-[27]).
2. The sentencing Judge did not err in finding that the appellant was trafficking in his own right (at [28]).
3. The Judge ought not to have identified separate sentences imposed for the individual offences before proceeding to impose a single sentence of nine years because embarking on that exercise in this case would have been quite artificial (at [29]).
4. The sentence was not manifestly excessive. The head sentence of nine years and non-parole period of four years and six months is a moderate one (at [31]).
Controlled Substances Act 1984 (SA) s 32(2); Criminal Law Consolidation Act 1935 (SA) s 138(1); Summary Offences Act 1953 (SA) s 41; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Faehrmann; R v Moore; R v Price-Austin (2014) 118 SASR 549, applied.
R v Young (2016) 126 SASR 41, discussed.

R v NGUYEN
[2018] SASCFC 65
Court of Criminal Appeal: Kourakis CJ, Stanley and Bampton JJ

KOURAKIS CJ: The appellant, Mr Nguyen, appeals against a sentence of nine years with a non-parole of four years and six months imposed in the District Court on his conviction of the following offences:
●two offences of trafficking in a commercial quantity of a controlled drug contrary to s 32(2) of the Controlled Substances Act 1984 (SA) (the CSA);
●an offence of money laundering contrary to s 138(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA); and
●an offence of unlawful possession contrary to s 41 of the Summary Offences Act 1953 (SA).
Mr Nguyen was convicted after a short trial by Judge alone, in which the primary dispute was the lawfulness of the search of a car driven by him which revealed evidence of the commission of the offences. Accordingly, the appellant was not entitled to any reduction in penalty for a plea of guilty. Moreover, after his conviction there was a disputed facts hearing in which the appellant claimed that he was a mere conduit for the drugs and money which belonged to another person. The Judge rejected his account.
The appellant appeals on the grounds that:
●the sentence was manifestly excessive;
●the Judge’s reasons fail to adequately explain the factual basis on which he fell to be sentenced;
●the Judge erred in rejecting Mr Nguyen’s evidence that he was only a courier; and
●the reasons do not disclose how the sentences which might individually have been imposed on the various convictions contributed to the head sentence of nine years imposed pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the CLSA).
For the reasons which follow, I would reject each of those grounds of appeal.
The prosecution case
In July 2014 a vehicle driven by Mr Nguyen was stopped by police at Campbelltown. On searching the car, police found a plastic resealable bag wrapped in a heat sealed bag secreted underneath the steering column. The contents weighed 136 grams, of which 104 grams was methylamphetamine; a purity of 76 percent. Cash in the sum of $950, which was found in the middle console between the front passenger seats, was the subject of the unlawful possession charge.
The police took Mr Nguyen to Mansfield Park where he resided with his parents. After a search of his home, the police seized a set of digital scales, plastic resealable bags, three operable mobile phones and a long list of names with associated mobile numbers.
Wads of cash, almost entirely in $20,000 lots, totalling $143,950, were found. That money was the subject of the money laundering charge. A bag containing 65.8 grams of paracetamol was also found. Its probable use was as a cutting agent. A bag was found in Mr Nguyen’s bedroom wrapped in a plastic bag inside a black sock in a clothes basket weighing 276 grams. It contained 260 grams of methylamphetamine; a purity of 94 percent. The combined value of the methylamphetamine was estimated to be $150,000, and much more if sold in point (0.1 grams) street deals.
Antecedents
Mr Nguyen was 42 years of age when sentenced. He was born in 1975 and arrived in Australia with his family seven years later. He completed year 12 at Christian Brothers College after which he found work in the IT industry. He has no prior convictions of relevance. The Judge accepted what his Honour described as ‘a substantial body of persuasive material’, attesting to Mr Nguyen’s substantial and successful endeavours to overcome drug and gambling addictions. The Judge also observed that psychological reports placed before the Court described Mr Nguyen as having a good degree of insight into his offending. The Judge concluded that Mr Nguyen could not have done, or achieved, much more in ‘demonstrating an intention and resolve to reform and keep away from drugs’.
The appellant’s evidence
Mr Nguyen testified that he commenced using methylamphetamine late in 2012. He found himself addicted within six months. He initially paid for methylamphetamine through his social security payments but then asked his dealers for credit. He would purchase a ‘point’ of methylamphetamine for $100. At one stage he was consuming methylamphetamine to the value of $4,000 a week.
Mr Nguyen gave evidence that he eventually came to owe his dealer $40,000 to $50,000. He described ‘nagging’ his dealer to supply more on credit even after he had amassed that much debt but the dealer refused. However, the dealer told him that it was time that he did something to ‘work off’ the debt. The dealer asked the appellant to carry out errands which involved ‘driving around and picking up packages and dropping off packages for him’. From late 2013 Mr Nguyen would buy and sell methylamphetamine on instructions received by text from his dealer.
Mr Nguyen testified that the dealer had told him to pick up the methylamphetamine found in the car and to store it for a couple of days before dropping it off in accordance with instructions which would be sent to him by text. He gave the same explanation for the larger quantity found in his home. The methylamphetamine had been in his parents’ house for about two weeks. Mr Nguyen testified that he accumulated the cash amount of $143,950 over ‘the course of a couple of months’. He explained that he did a few pickups and drop offs and would store the money at his parents’ house until told to drop the money off for his dealer. The cash was the proceeds of eight to 10 pickups and had been in the house for about four weeks.
When asked to describe the state of his addiction, Mr Nguyen replied ‘It was pretty bad. It was really bad’. That laconic response provoked the following leading questions:
QSo are we to assume that you were using consistently during that time.
AYes.
QWhere did you get the methamphetamine from that you used.
AEvery time he sends me to drop off, I would open it up and get a little bit out for myself.
QSo in other words, you had a consistent supply in the course of doing these drop-offs and pick-ups as you’ve described.
AYes.
Mr Nguyen did not say just how much he was taking for his own use. When asked what had been arranged to repay his large debt, Mr Nguyen answered:
ASo every time I do an errand for him, he’ll take off like, I think, 200 bucks, $200 and sometime I will take a little bit out and sell it to my friends and then, if I profit, I will pay him off with it.
I observe here that the answer fails to explain how Mr Nguyen managed to pay for his raging addiction which, according to him, involved consuming methylamphetamine to the value of $4,000 on a weekly basis whilst he was paying back the debt. If Mr Nguyen was feeding his addiction by siphoning off methylamphetamine from the deliveries he was making, the evidence fails to explain how his dealer did not notice that methylamphetamine to that value was going missing.
Mr Nguyen explained that the notebook found with him in the car when he was arrested was a notebook in which he kept tally of the amount of methylamphetamine supplied to different people. The tally was of the number of grams supplied to people, from which he would deduct such weights for which payment was later received. Accordingly, he would be left with a tally of the outstanding weight in grams of methylamphetamine supplied for which payment was yet to be made.
I observe here that the very keeping of a tally in that way is inconsistent with the general working method Mr Nguyen had previously described. It was not consistent with his claim that he was simply following the directions of his dealer. Nor does it seem necessary for Mr Nguyen to have scales, a notebook and three mobile phones if he was just making deliveries as directed. The possession of that paraphernalia is more consistent with trading in his own right.
Mr Nguyen was also asked about a particular entry in his notebook in which the number 1500 was recorded with an arrow to the word ‘coke’. He explained that entry as follows:
ABecause I swapped it - I must have swapped it for some coke, I think, and the price was - coke was slightly different to what I was doing for the meth, so I put the form there, I worked it out that way.
…
ASo I swapped the meth for the coke and, because the price of the coke was different, I couldn’t deduct it to the quantity, so I did it in this way.
I observe that Mr Nguyen did not say that he had prior approval from his dealer to make that swap. Engaging in a transaction of that kind is more consistent with him dealing on his own account.
Sentencing
When sentencing, the Judge rejected the appellant’s narrative for the following reasons:
On one view of matters it is not strictly necessary to resolve this factual controversy, since you clearly participated on your own admission, in a major continuing trafficking enterprise with this other man, at the very at least as an aider and abetter. To the extent that it is necessary to do so, it is impossible to accept the position as a reasonable possibility that you were acting as a mere conduit for money and amphetamine, for the following reasons:
1.It is simply inconceivable that you had on your person as much as 104g for the purpose of smoking with an acquaintance in Campbelltown and which could hardly be described as ‘a little bit’;
2.Taking $950 in petty cash purely for petrol and cigarettes is inherently unlikely, even if you were in a hurry;
3.The careful manner in which drugs were hidden and stored in the car and at your home;
4.The organised manner in which an unusually large sum of cash was stored in the bedroom;
5.The tick lists found in your person and in the desk drawer, prove a not inconsiderable trading operation on your own account;
6.The presence of indicia of trafficking found on your person and in your room. Whilst it is true there is no evidence of a lavish lifestyle, the unexplained accumulation of $140,000 in cash is self evidently indicative of significant drug trading;
7.The inherent unlikelihood that the supplier would surrender the control of so much cash and such a highly valuable quantity of drugs without any form of supervision or control.
You are therefore sentenced on the basis that you operated as a significant middle-order dealer, a conclusion open on any view of the facts.
The reasons given by the Judge for the particular sentence his Honour imposed were brief.
It is appropriate to proceed by way of one single penalty for the four clearly inter-related offences which in total is not crushing, of nine years imprisonment.
When it comes to fixing a non-parole period, your personal circumstances carry considerable weight. You retain the support of family and others in the Community and you are likely to continue on the path of reform and therefore unlikely to reoffend. On the other hand, the large quantities and value of the methylamphetamine involved requires the court to maintain adequate levels of general deterrence. It is likely you will find imprisonment particularly difficult and fraught than it would be for other prisoners.
In the combined circumstances a merciful non-parole period of four years and six is set.
The offences are simply far too serious to warrant suspension or home detention disposition and will commence from today.
Discussion
Mr Nguyen complains that the Judge’s reasons on the question of the disputed factual basis of his guilty pleas do not record:
·whether he was operating as a sole trader or as an ‘aider and abettor;
·whether the Judge accepted that his offending was motivated, at least in part, by his addiction to methylamphetamine;
·whether the Judge accepted his evidence that he only commenced trafficking in methylamphetamine after he had amassed a drug debt of up to $50,000; and
·when Mr Nguyen commenced trafficking in the drug.
I will deal with the complaints in turn.
First, it is convenient to observe at the outset that the paragraph of the Judge’s sentencing remarks referred to at [19] was merely an observation that even on Mr Nguyen’s account, a substantial sentence was required. The reference to an ‘aider and abettor’ is related to Mr Nguyen’s claim that he was acting under directions. Nonetheless, the Judge went on, in the very next paragraph, to find that Mr Nguyen was operating his own trafficking enterprise. It is on that finding which Mr Nguyen was sentenced.
Secondly, the Judge accepted that Mr Nguyen had done much to rehabilitate himself and overcome his methylamphetamine addiction. It is plain therefore that the Judge accepted his actions in trafficking in methylamphetamine arose out of his addiction. In that respect, Mr Nguyen’s explanation for his offending is all too well known to the criminal courts of this State. Cases in which drugs are trafficked purely for profit, without any addiction, are relatively rare and, if encountered, are generally dealt with more severely.
Thirdly, on the disputed fact hearing the Judge expressly rejected Mr Nguyen’s evidence that he was acting only as a courier of drugs and money for another person. To that extent, the Judge implicitly rejected his account that he was working off a drug debt of up to $50,000. The Judge found that Mr Nguyen was operating in his own interest ‘as a significant middle order dealer’.
Finally, on Mr Nguyen’s own admission, he had been engaged in trafficking methylamphetamine for about six months. There is nothing in the Judge’s reasons to suggest that the Judge proceeded on the basis that he had been trafficking for any longer a period. Mr Nguyen fell to be sentenced for the offences charged, not for his past offending, but in the context of his commercial trading. There was no reason for the Judge to make any express finding in this respect, having regard to Mr Nguyen’s admission.
I therefore reject the complaint that the reasons for sentence are inadequate.
The appellant also complains that the Judge erred in fact in rejecting his account that he was a courier. As I have already observed, in several respects, Mr Nguyen’s testimony was internally inconsistent. Of the seven reasons given by the Judge for rejecting his account, it is the last which is of the greatest weight. It is implausible that a dealer would entrust, for a lengthy period of time, the large amounts of cash and methylamphetamine found in Mr Nguyen’s possession with a mere courier. It is fanciful to think that the principal dealer for whom Mr Nguyen claimed he was working would allow him to keep the cash proceeds of eight or 10 deliveries of methylamphetamine before demanding a delivery of the cash and an accounting of the transactions. It is all the more unlikely that a dealer would have done so knowing that he was heavily addicted to methylamphetamine. I therefore reject the complaint that the Judge erred in finding that Mr Nguyen was trafficking on his own right.
I turn to the complaint that the Judge ought to have notionally identified the separate sentences which his Honour would have imposed for the individual offences before proceeding to impose a single sentence of nine years. Embarking on that exercise in this case would have been quite artificial. Both offences of trafficking in a commercial quantity of methylamphetamine were interrelated, both because of their temporal proximity and because, on the Judge’s finding, the possession of the methylamphetamine in the car was but part of Mr Nguyen’s ‘middle order’ trafficking activities. The criminality of the money laundering charge was that the money was derived from the trafficking operation. The unlawful possession of the smaller amount of cash in the car is insignificant for present purposes.
This Court has, on occasion in the past, commented on the artificiality of sentencing in commercial drug operations for discrete offences committed in the course of a continuous trading enterprise.[1] The decision in R v Faehrmann[2] is a paradigm case for evaluating the criminality of the seven offences as a whole.
[1] R v Faehrmann; R v Moore; R v Price-Austin (2014) 118 SASR 549.
[2] R v Faehrmann; R v Moore; R v Price-Austin (2014) 118 SASR 549.
The sentence was not manifestly excessive. The decision of this Court in R v Young[3] dealt with trafficking in a basic quantity of methylamphetamine. The hierarchy of increasing maximum penalties for trafficking in basic quantities, commercial quantities, and large commercial quantities shows that there must be a material effect on the penalty imposed when the amount possessed is in a higher bracket. Of course, the maximum penalty, which Parliament has prescribed by reference to the amount of the drug trafficked, is but one of the considerations in fixing the sentence. Nonetheless, it is a consideration which will result, all other things being equal, in a material difference between the sentences imposed for the different categories.
[3] (2016) 126 SASR 41.

In this case, the methylamphetamine found in Mr Nguyen’s family home was more than twice the threshold weight for trafficking in a commercial quantity. Moreover, the nature of the operation, for the reasons given by the Judge, places the appellant as a middle order trafficker. Of course, the gravity of the offence must be balanced against the weighty consideration of the appellant’s demonstrated rehabilitation.
Having regard to all of the circumstances and competing considerations, the head sentence of nine years and non-parole period of four years and six months is a moderate one. But for the appellant’s prior good character and strong prospects of rehabilitation, a more substantial head sentence, indeed a sentence exceeding 10 years, might have been imposed.
Conclusion
I would dismiss the appeal.
STANLEY J: I would dismiss the appeal. I agree with the reasons of the Chief Justice.
BAMPTON J: I would dismiss the appeal for the reasons given by the Chief Justice

[2018] SASCFC 65

19 June 2018

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Charge

Sentencing

Intention

Appeal