R v Nguyen and Tek - [2023] NSWDC 582

District Court

New South Wales

Medium Neutral Citation: R v Nguyen and Tek [2023] NSWDC 582
Hearing dates: 21/9/23
Date of orders: 21/9/23
Decision date: 21 September 2023
Jurisdiction: Criminal
Before: Bourke SC DCJ
Decision:
Re Tek:
Seq 1 (Supply commercial qty prohibited drug) - Convicted and sentenced to a term of imprisonment of 22 months, to be served by way of Intensive Correction Order. A 25 percent discount has been taken into account.
In addition to the standard conditions, the following conditions are to apply:
1. You are not to consume illicit drugs or any other prescription drug other than those prescribed for you by a medical practitioner.
2. You are to engage in counselling or other psychological treatment as directed by Community Corrections.
3. Complete 200 hours Community Service.
You are to report to the Fairfield office of Community Corrections within 24 hours to enable the ICO to be commenced.
Re Nguyen:
Convicted and sentenced to an aggregate term of imprisonment of 6 years 6 months with a NPP of 4 years 6 months (15/7/22-14/1/27). I find special circumstances.
The indicative sentences are (25 percent discount taken into account):
Seq 1 (Arson) – 2 years 3 months
Seq 2 (Arson) – 2 years 7 months
Seq 4 (Arson) – 2 years 7 months (Form 1 taken into account).
Seq 5 on the s166 certificate (Arson) – 14 months
Seq 1 Supply commercial qty prohibited drug – 2 years with NPP 16 months.

Catchwords:
Crime – Sentence – Damage property by fire – Arson – Supply commercial quantity prohibited drug

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571
CDPP v De La Rosa [2010] NSWCCA 194
Porter v R [2008] NSWCCA 145
R v Millwood [2012] NSWCCA 2
Tiknius v R [2011] NSWCCA 215

Category: Sentence
Parties: NSW DPP – Crown
Richard Nguyen – Offender
Justin Tek - Offender
Representation: Ms Todhunter for Crown
Mr R Webb for Nguyen
Mr A Dib for Tek

File Number(s): 22/229343, 22/207935, 22/207907, 22/207865
Publication restriction: None

sentence

The offenders, Mr Richard Nguyen and Mr Justin Tek, have pleaded guilty to offences, in the case of Mr Nguyen, and an offence, in the case of Mr Tek, and are therefore today to be sentenced in relation to those matters.
In relation to Mr Nguyen, the offences are as follows. Firstly, in relation to the H-numbers ending in 304, there are two offences, those being sequence 1 and sequence 2, each being offences under s 195(1)(b) of the Crimes Act 1900, being offences of damage property by fire. The maximum penalty for that type of offence is ten years imprisonment.
Mr Nguyen is also to be sentenced in relation to the sequence 4 offence, which relates to the H-number ending in 562, which is a further offence of damage property by fire, which carries the same maximum penalty. However, in sentencing him for that offence, he asks…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Nguyen and Tek

Details

AGLC: R v Nguyen and Tek [2023] NSWDC 582
Case: [2023] NSWDC 582
Decision Date: 21 September 2023

CaseChat Overview and Summary

The defendants, Nguyen and Tek, faced the court on charges of arson and the supply of a commercial quantity of a prohibited drug. The matter was heard in the relevant Australian court, where the sentencing of the defendants was the primary focus. The court had to determine the appropriate sentences for each defendant, taking into account the specific charges against them and the relevant legal principles.

The legal issues before the court included the determination of the severity of the sentences for the defendants. The court had to consider the nature and circumstances of the offences, the culpability of the defendants, and the principles of sentencing in Australia. The court also had to decide whether any special circumstances existed that could affect the sentencing. Additionally, the court needed to balance the need for punishment with the potential for rehabilitation of the defendants.

In delivering the judgment, the court considered the evidence presented and the submissions made by the defence and prosecution. The court found that Tek was guilty of supplying a commercial quantity of a prohibited drug and sentenced him to a term of imprisonment to be served by way of an Intensive Correction Order. The court imposed additional conditions on Tek, including restrictions on drug consumption, mandatory psychological treatment, and community service. Nguyen was convicted of multiple counts of arson and the supply of a commercial quantity of a prohibited drug. The court sentenced Nguyen to an aggregate term of imprisonment with a non-parole period, finding that special circumstances existed. The court imposed specific sentences for each charge, taking into account the discount for early guilty pleas and the use of a Form 1 certificate.

The court's final orders were that Tek was to serve an Intensive Correction Order with additional conditions and Nguyen was to serve a term of imprisonment with a specified non-parole period. The court's decision provided clarity on the appropriate sentences for the defendants and addressed the legal issues presented in the case.

Orders

Orders of the court

Re Tek:

Seq 1 (Supply commercial qty prohibited drug) - Convicted and sentenced to a term of imprisonment of 22 months, to be served by way of Intensive Correction Order. A 25 percent discount has been taken into account.

In addition to the standard conditions, the following conditions are to apply:

1. You are not to consume illicit drugs or any other prescription drug other than those prescribed for you by a medical practitioner.

2. You are to engage in counselling or other psychological treatment as directed by Community Corrections.

3. Complete 200 hours Community Service.

You are to report to the Fairfield office of Community Corrections within 24 hours to enable the ICO to be commenced.

Re Nguyen:

Convicted and sentenced to an aggregate term of imprisonment of 6 years 6 months with a NPP of 4 years 6 months (15/7/22-14/1/27). I find special circumstances.

The indicative sentences are (25 percent discount taken into account):

Seq 1 (Arson) – 2 years 3 months

Seq 2 (Arson) – 2 years 7 months

Seq 4 (Arson) – 2 years 7 months (Form 1 taken into account).

Seq 5 on the s166 certificate (Arson) – 14 months

Seq 1 Supply commercial qty prohibited drug – 2 years with NPP 16 months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Nguyen and Tek [2023] NSWDC 582
Hearing dates:	21/9/23
Date of orders:	21/9/23
Decision date:	21 September 2023
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Re Tek: Seq 1 (Supply commercial qty prohibited drug) - Convicted and sentenced to a term of imprisonment of 22 months, to be served by way of Intensive Correction Order. A 25 percent discount has been taken into account. In addition to the standard conditions, the following conditions are to apply: 1. You are not to consume illicit drugs or any other prescription drug other than those prescribed for you by a medical practitioner. 2. You are to engage in counselling or other psychological treatment as directed by Community Corrections. 3. Complete 200 hours Community Service. You are to report to the Fairfield office of Community Corrections within 24 hours to enable the ICO to be commenced. Re Nguyen: Convicted and sentenced to an aggregate term of imprisonment of 6 years 6 months with a NPP of 4 years 6 months (15/7/22-14/1/27). I find special circumstances. The indicative sentences are (25 percent discount taken into account): Seq 1 (Arson) – 2 years 3 months Seq 2 (Arson) – 2 years 7 months Seq 4 (Arson) – 2 years 7 months (Form 1 taken into account). Seq 5 on the s166 certificate (Arson) – 14 months Seq 1 Supply commercial qty prohibited drug – 2 years with NPP 16 months.
Catchwords:	Crime – Sentence – Damage property by fire – Arson – Supply commercial quantity prohibited drug
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 CDPP v De La Rosa [2010] NSWCCA 194 Porter v R [2008] NSWCCA 145 R v Millwood [2012] NSWCCA 2 Tiknius v R [2011] NSWCCA 215
Category:	Sentence
Parties:	NSW DPP – Crown Richard Nguyen – Offender Justin Tek - Offender
Representation:	Ms Todhunter for Crown Mr R Webb for Nguyen Mr A Dib for Tek
File Number(s):	22/229343, 22/207935, 22/207907, 22/207865
Publication restriction:	None