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

1. 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.

2. 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.

3. 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 that I take into account two other admitted offences that are on a Form 1 document, which I do intend to do.

4. Furthermore, he is to be sentenced for the sequence 1 offence for H number ending in 040, which is an offence of supply a commercial quantity of MDMA. The maximum penalty for that offence is 20 years imprisonment and a standard non-parole period of 10 years is specified.

5. There is one further offence, that being the sequence 5 offence against H-number ending in 562, which is to be dealt with on a s 166 Criminal Procedure Act 1986 certificate, that being an offence under s 195(1)(b) of recklessly damaging property by fire. That matter is of course subject to the jurisdictional limit imposed in the Local Court.

6. In relation to Mr Tek, he has pleaded guilty and is to be sentenced for one single offence of supply commercial quantity of MDMA, the maximum penalty and standard non-parole period being 20 years and 10 years respectively.

7. I intend to allow a 25% discount in relation to the various pleas of guilty in relation to both offenders, by reason of the utilitarian value of those pleas of guilty.

8. The maximum penalties and, where applicable, standard non-parole periods are of course important guidelines in the sentencing exercise to which I have had regard.

FACTS

9. The facts are agreed and are as follows. I will refer firstly to the facts relating to the damage property by fire offences, which involve Mr Nguyen.

10. The first two offences involved the same commercial premises. The first offence occurred on 24 May 2022, and the second on 30 June 2022. The Venus Nails salon was located within the central hub of the Bankstown Central shopping centre complex. The business was owned a Ms Anh Hoang. Ms Hoang has a son named William Tran, who was a criminal acquaintance of the offender Mr Nguyen. In 2022, William Tran apparently became indebted to a criminal syndicate as a result of a drug deal gone wrong. Subsequently, the offender Mr Nguyen sought to compel Tran to pay that debt. As a result, Hoang in May 2022 contacted her cousin, Mr Minh Luu, and asked him to lend money, telling him that Tran was in debt, and that if the debt was not paid within a week, “they would kill him.” Mr Minh Luu then loaned $5,000 to Ms Hoang. However, approximately one to two weeks later, Luu was told that the Venus Nails shop had been set on fire.

11. That then brings me to the first fire, which is the sequence 1 offence to which I have earlier referred. The circumstances of that fire are as follows. Just before 9.30pm on 24 May 2022, the offender Mr Nguyen entered the Bankstown Central shopping complex wearing a blue face mask, black hoody and cap, black tracksuit pants, and with a black Nike-brand bag. A couple of minutes later, he lit a fire at the front of Venus Nails. This was captured on CCTV. The offender then left the complex through an emergency door. Fortunately, overhead sprinklers activated inside the shopping centre and the fire was extinguished, but due to the fire and water damage to the area around the front of the nail shop, there was extensive damage to at least the value of $20,000.

12. Police were alerted and attended at around 10.20pm that night, after which various exhibits and other evidence was gathered, which included partly burnt bottles found to contain or have contained petrol or other accelerant. However, at that stage, the offender Mr Nguyen was not identified by police.

13. The second fire, which is the subject of the sequence 2 offence, occurred on 30 June 2022 at the same premises. On that occasion, at about 9.42pm, the offender again entered the Bankstown Central complex, this time carrying a green bag. At the time, the shopping complex was open for late-night shopping, and approximately 1,450 people were within the premises. The offender was wearing a blue hoody, a black baseball cap, grey tracksuit pants, and white and grey running shoes with black markings on them. He poured an unknown liquid onto the ground outside the Venus Nails shop, and at about 9.46pm, he ignited the liquid, which caused the façade of Venus Nails to catch fire. The offender’s shoe and lower area of pants briefly caught fire also.

14. He ran from the scene, but as he did so, he dropped a glove. This fire was again extinguished by the fire-suppression system in the shopping complex, but extensive damage was done to the shopfront and to surrounding areas, which the statement of facts suggests was to the value of about $170,000, although that figure apparently does not include the cost of water damage.

15. Again, police attended and seized a number of items, including bottles and a single glove. These were subjected to forensic testing. Petrol was detected on the glove and on the ground near the shop. Also, a mixture of petrol and other liquids were found on or near the three bottles.

16. Police investigations identified Mr Nguyen as the offender by means of the following evidence: firstly, CCTV footage, which captured his likeness, and him wearing similar clothing on other occasions; secondly, DNA evidence from the glove found on 30 June 2022; and thirdly, call-charge records which placed the offender in the area of Bankstown Central shopping centre at or around the time of the offences.

17. Turning, then, to the facts relating to the sequence 4 offence of damaging property by fire, which occurred on 12 July 2022, and also the matters that are on the Form 1 document. These offences arose against the background of the same drug debt said to have been owed by William Tran, to which I have already referred. These offences, however, were directed at Mr Minh Luu, to whom I have also earlier referred. At the relevant time, in June/July 2022, Mr Luu lived at a house in Mount Pritchard, which was occupied by himself, his wife and his children. He and his wife owned an Audi Q7 and a Mercedes C200 motor vehicle.

18. On 4 June 2022, two males attended the house. During the visit, one of the males asked Mr Luu where William Tran was, and whether he had any friends or family in the area. However, Mr Luu said he had not had contact with William for some time, and the two males left. I note that the statement of facts does not suggest that either of these males was Mr Nguyen.

19. On 2 July 2022, however, the offender Mr Nguyen attended the house and asked Mr Luu whether he was the uncle of William Tran. Mr Luu said he was not, but that he was a friend of Tran’s mother. The offender then told Mr Luu that he had been asked to pass on a message. The message was to the effect that Mr Luu was either to find William Tran or find out where he was, and that if he did not, then “they” would shoot him, his wife and children. The offender further said that “they” are dangerous, and if they say they will shoot the victim and his family, then they will carry out that threat. The offender also told the victim that they had burnt the nail salon, which the victim understood to be a reference to the shop belonging to Anh Do, the mother of William Tran. As a result of this conversation, understandably, the victim, Mr Luu, became upset and scared.

20. The offender came to the house again the next day, 3 July 2022, and again spoke to Mr Luu. He told Mr Luu that he needed to help find William, and that if he was not found, “they” would shoot both the victim and the offender. The victim said he had not spoken to William for some time and did not know where he was, and asked who “they” were and what was happening. The offender told Mr Luu that William owed them money, and as he had run away, the offender Mr Nguyen had a “problem”, and as the victim was a friend of William, it was also the victim’s problem. The offender then asked for the victim’s phone number, which he refused to give. The offender also said he would deliver a phone to the victim so that he could be contacted by “other people”, but the victim said he did not want the phone. After this, the offender left the house.

21. The offender again visited the house on 5 July 2022, when he spoke to the victim’s wife. He returned again on 9 July 2022, when he had in his possession a mobile phone inside a box. The offender told the victim to take the phone as there was someone who wanted to contact the victim. The offender said that he did not wish to annoy the victim but that he had no choice.

22. The victim, however, refused to take the phone, and said he had nothing to talk about. The offender said to him that he had no choice but to leave the phone or he would be shot. The victim noted that the offender looked stressed and tired. These facts which I have just recited relate to the intimidation offence which is on the Form 1 document.

23. The offender also said to the victim that if he did not use the phone, then “they” would burn his cars, after which the offender put the phone down and left. This is the essential factual basis for the threat to burn offence, which is also on the Form 1.

24. Turning, then, to the substantive offence, which is the sequence 4 offence under s 195 of the Crimes Act committed on 12 July 2022, the relevant facts are as follows. On the night of 11 July 2022, the victim, Mr Luu, and his family went to their house at Mount Pritchard. At about 20 past midnight the following morning, the offender drove to an Ampol service station at Canley Heights. He was wearing mostly black clothing, as well as a blue medical face mask. He filled a small petrol can with fuel, which he paid for using $10 cash. He then drove away, although the number plate of his car - his personal car, I assume - was captured on CCTV. The offender then drove to the house of Mr Luu and his family, where he used the petrol accelerant to set fire to the two cars owned by Mr Luu and his wife.

25. At about 1am that morning, the victim was awoken by an explosion. Although he stayed in bed for a short time, he then heard someone at his front door, yelling, “Open the door. Your car’s on fire.” The victim then got his family out of the house and found that the carport was engulfed in flames and that the Audi and the Mercedes were on fire and were destroyed. Parts of the internal areas of the victim’s house also suffered fire and smoke damage, and there was also fire damage to external parts of an adjoining house.

26. Emergency services attended and extinguished the fires. A small petrol can consistent with that earlier filled by the offender Mr Nguyen was found at the scene.

27. Mr Nguyen was arrested on 15 July 2022 and was found to be wearing the same hoody as when he bought the fuel on 11 July 2022. At the police station, he participated in an interview in which, among other things, he said that he did what he had to do, that “I just burnt those two cars, that’s it, that’s all I’m going to say.” He told police he was not with anybody; furthermore, that he did not have any intention of harming the people in the house, and that he felt bad about setting the cars and the house on fire.

28. The Statement of Facts notes also that the offender intentionally set fire to the two cars, and he was highly reckless of the risks to the occupants of the house when setting those fires, and that he was reckless also to the damage caused to the next-door neighbour’s house. This offence - that is, the sequence 5 offence, which is to be dealt with on the s 166 certificate - is admitted by the offender, and, as I have said, is subject to the jurisdictional limit imposed in the Local Court.

29. That brings me to the facts relating to the drug supply offence with which both Mr Nguyen and Mr Tek have been charged and have pleaded guilty.

30. The facts are agreed and essentially are as follows. The two offenders were engaged in a joint criminal enterprise to supply MDMA, a drug also known as ecstasy. Police were conducting investigations into prior conduct of Mr Nguyen, and there was an intention to find and arrest him for that alleged conduct. On 15 July 2022 at about 2.30 in the afternoon, police were conducting investigations in Canley Vale at a particular address, and were parked nearby. Whilst making observations, police saw a black Toyota Hilux vehicle drive at speed and then park out the front of the house, after which the offender, Mr Nguyen, left the house and got into the passenger seat of the car. The Hilux then left at speed and was followed by police. Eventually police activated lights and sirens and pulled the vehicle over in Canley Vale and approached the driver’s side of the vehicle and found the driver to be Mr Tek. They also confirmed that the passenger was Mr Nguyen.

31. Police decided to conduct a search of the vehicle and directed the two persons to get out so that that search could be conducted. As they were getting out of the vehicle, Mr Tek was seen to attempt to push a bum-bag down the side of the driver’s seat. A detective asked Mr Nguyen who owned the bum-bag, and in response Mr Tek said that it was his. When asked if there was anything inside it that there should not be, Mr Tek said, “Ah, yes, there is. There’s just some stuff... Just some MDMA, officer.” Police searched the bum bag and found three heat-sealed bags containing four knotted plastic bags, each containing a brown substance. The brown substance was analysed and weighed and was found to be 141.5 grams of MDMA at a purity of about 4%.

32. At the police station, Mr Nguyen participated in an interview with police and during that interview he told police that the MDMA was his, and it was in fact his bag. He said it was for personal use, but provided no comment regarding who he was with and how the drugs were packaged, where he obtained them, or how he was going to sell them. Mr Tek, however, declined to participate in an interview with police.

33. The agreed facts finally note that by virtue of their pleas of guilty, both offenders confirm that they were equal participants in a joint criminal enterprise to supply the MDMA to which I have referred.

OBJECTIVE SERIOUSNESS

34. Turning, then, to objective seriousness of the offences before the Court. Firstly, the maximum penalties and, where applicable, standard non-parole periods, mark the various offences as potentially very serious, but, of course, it is important that I make an assessment of the objective seriousness of the particular examples of these offences which are now before the Court.

35. Dealing firstly with what I will refer to as the arson matters. As set out in the Crown’s written submissions, Johnson J in the Court of Criminal Appeal in Porter v R [2008] NSWCCA 145, said at para 81:

“The crime of arson may be committed in a variety of circumstances. It is an extremely serious and dangerous crime ... the motive of the offender is relevant to an assessment of the objective seriousness of the offence ... courts have observed that arson is very easy to commit, usually with destructive (if not tragic) consequences ... it has been said that arson is often a difficult crime to detect.”

36. His Honour then went on to say that these various factors lead the Courts to emphasise the importance of general deterrence in such cases.

37. In assessing the objective seriousness of each of the arson offences that are before the Court, and also the offences on the Form 1 document, I have considered the evidence of suggested duress that is said to have been experienced by the offender Mr Nguyen in carrying out those offences. Non exculpatory duress may be relevant in sentencing, both on objective and subjective grounds, although each case will depend on its particular facts. Non exculpatory duress may be taken into account as a mitigating factor on sentence. It may affect the degree of the offender’s subjective or moral culpability, and it may also impact on the person’s prospects of rehabilitation (see Tiknius v R [2011] NSWCCA 215 at para 41).

38. However, the question of whether in a particular case fear or intimidation has played a part in the commission of the offences, and should result in a reduction in penalty, must depend on the circumstances of the case (see the extracted quotations from earlier cases noted at para 41 of the Tiknius case).

39. In this particular matter, I accept on balance that the offender Mr Nguyen was influenced to commit the offences due to his own fears. This conclusion is supported not only by his own assertions to others but also by the agreed facts concerning the car fires, which note that the offender told Mr Luu that the offender himself may be shot, and the observation by Mr Luu, noted at para 16 of the Statement of Facts, that the offender looked stressed and tired.

40. I do not, however, entirely accept his assertion that this was solely because of the drug debt of his “friend”. It is more likely, in my view, given the offender’s criminal history and history of drug use, as well as the fact that he told the author of the Sentencing Assessment Report that he was under the influence of drugs at the time of the offences, along with his own drug offence detected on 15 July 2022, that any drug debt was also one that had been incurred, at least in part, by the offender himself.

36. The question, then, is whether and, if so, to what extent duress should operate to render any of the offences of arson or intimidation less serious in an objective sense. In my view, duress is relevant to some degree to the objective seriousness of these offences. However, it is a matter to which I attach limited weight. This was a case where the offender was targeting completely innocent people, people who had no liability or connection to any “drug debt”. He also had other options, not only of involving police, but of moving away so as to make it unlikely the relevant persons would locate him.

37. Also, and perhaps more significantly, this was a case where the offender had apparently immersed himself into a culture of drugs and its connection to organised criminals. This is consistent with his statement to the Sentencing Assessment Report author that he “has links to the Sydney organised criminal networks through his direct friends and associates.” The offender has, in my assessment, largely made a choice as to his associates, and made a choice to continue to abuse drugs, and likely incur a significant drug debt in the process. In those circumstances, it would be inappropriate, in my view, to treat the duress which arose from those choices as a matter which significantly reduces his moral culpability or the objective seriousness of these offences.

38. As I have said, I have taken duress into account in assessing objective seriousness, but it is a matter which, in my view, reduces the objective seriousness to a limited degree. In making these findings, I do not overlook the offender’s difficult upbringing, a matter to which I will refer later in these remarks.

39. In relation to the sequence 1 offence involving the first nail salon fire and its objective seriousness, I make the following findings. This offence was a targeted and very deliberate one. The person targeted was entirely blameless and was essentially being used as a means to extort a drug debt for which the victim had no responsibility. Petrol was used as an accelerant. The offence occurred inside a larger shopping complex, with the potential for it to spread and cause much greater damage. The actual damage was substantial, being at least $20,000. Furthermore, the offender took steps to conceal his identity. I assess this offence as being near the mid range of objective seriousness.

40. Turning to the second nail salon fire. Again, this offence was targeted and deliberate, involved the use of an accelerant, and was again directed at a victim who held no responsibility at all for the debt that was sought to be recovered. Again, it occurred inside the same shopping complex, and in this case at a time when a large number of people were present and potentially placed at risk. It was committed, therefore, without regard for public safety. The offender again took steps to conceal his identity, and in this case the damage was more extensive, being at least $170,000. I assess this as an offence within the mid range of objective seriousness.

41. Turning then to the sequence 4 offence involving the arson damage to the two motor vehicles. This again was a very targeted and deliberate offence, and committed against a different innocent victim who was even further removed from any responsibility for the drug debt that was sought to be recovered. This offence also involved the use of an accelerant and steps by the offender to conceal his identity. While there is no evidence as to the costs associated with the damage, I conclude that it was fairly substantial, given the nature of the cars involved and their total destruction. I assess this offence as being near the mid range.

42. In relation to the intimidation offence, which is on the Form 1 document, that of course was a very serious form of that type of offence in that it involved threats to kill Mr Luu and his family. The sequence 3 offence on the Form 1 document, involving a threat to burn Mr Luu’s cars, was less serious, but nonetheless still serious, and clearly was not a hollow threat.

43. Turning, then, to the objective seriousness of the drug offence for which both offenders are to be sentenced. The seriousness of this offence is marked firstly by the 20-year maximum penalty and the specification of the standard non-parole period of 10 years. These are of course, as I have said, guideposts in the sentencing exercise. Drug offences have been treated very seriously for many decades by the Courts, and it has been emphasised that deterrent sentences must ordinarily be imposed. While the quantity of drug is important, it is by no means the most important consideration. More important is the consideration of the offender’s role - that is, what he did in committing the offence.

44. In relation to the quantity, in this case, it was only slightly in excess of the commercial quantity. Also, the purity, and therefore, I conclude, the potential value of the drug, was fairly low. On the other hand, the drugs were clearly intended for actual supply, given the manner in which they were packaged. I am unable to determine exactly what role each of these two offenders were performing, other than to conclude that they were acting together in pursuit of a proposed drug sale to persons unknown. I am unable to determine the respective roles of Mr Nguyen and Mr Tek in relation to this supply offence, and so I approach their roles as being fairly similar. In each case, there is no conclusion other than that they were engaged for some type of financial gain, and I consider that their moral culpability is fairly high.

45. I assess the objective seriousness of this offence, in relation to each offender, as being below the mid range and towards the lower range for this type of offence.

SUBJECTIVE MATTERS - NGUYEN

51. Turning then to subjective matters relating to the offenders themselves, commencing with Mr Nguyen. Mr Nguyen’s personal circumstances have been placed before the Court by means of some written material. He is now aged 24. He has a history of offences commencing in 2018. The most serious of these involved three drug supply offences that year, along with offences of possessing a prohibited weapon and dealing with suspected proceeds of crime, and he was sentenced to imprisonment of two years, four months, to be served by an Intensive Correction Order. That order ended in November 2021, which was only a matter of months before the offences now before the Court. He has also been, in the past, dealt with for offences of violence involving an affray and assault occasioning actual bodily harm committed in 2019, for which he was placed on a Community Correction Order, which ended in April 2021.

52. He is of Vietnamese ethnicity, but was born in Sydney, and has a number of siblings and step-siblings. He attended high school until year 12 but he did not obtain his HSC. At school, he struggled to get on with others and experienced some bullying.

53. Most significant, in terms of Nguyen’s subjective case, is the fact that he experienced a number of events as a child and adolescent that are said by psychiatrist Dr Furst to have had long-term effects. Firstly, his parents separated when he was only 12 months old, and the offender told Dr Furst that his natural father was “on the run” from police, and that his mother spent nearly ten years in gaol, being reunited with him when he was about ten years old. While his mother was in prison, he was looked after by a number of people, mostly friends of his mother. The offender, however, was reportedly exposed during this period to crime and violence. After her release from prison, Mr Nguyen’s mother re-partnered, but he was exposed to arguments, domestic violence, and experienced mental and physical abuse by his mother. In making those comments, I am referring to the offender being exposed to those various unfortunate elements.

54. His experience of family violence continued until he left home at about age 16, after which he lived either with friends or on the street. He experienced sexual abuse by a schoolteacher when he was around 13 years of age while on a school camp, which he said happened on about three or four occasions. He also started abusing alcohol and various drugs after leaving home, and between 2020 and 2022 he was using cocaine daily and up to eight to ten tablets of MDMA on a weekend, as well as methylamphetamine on occasions.

55. Ultimately, Dr Furst diagnosed Mr Nguyen as meeting the criteria for Post-Traumatic Stress Disorder arising apparently from his childhood deprivation and exposure to abuse. Dr Furst also diagnosed him with substance use disorder (cocaine), which he says is most likely the product of a genetic vulnerability, coupled with the traumatic aspects of his childhood.

SUBJECTIVE MATTERS - TEK

56. The subjective case of Mr Tek has been placed before the Court by means of a volume of written material. He is currently 21 years old and was 20 at the time of offending. He has no criminal history. He comes from a pro-social background and is supported by his family and partner, who attended with him at Court today. He is in his fourth year of a business degree at UTS. This, as well as his HSC results, suggest that he has the ability to become a useful member of the community if he stays away from drugs and negative influences.

57. He has some history of drug use, but has apparently been off drugs for about 14 months. At the time of the offence, according to the history he gave to the psychologist, he was experiencing some anxiety and depression arising from family and personal circumstances. He has accepted responsibility for his offending and taken steps towards reducing the risk of relapse. According to the sentencing assessment report, he has demonstrated some insight into the possible consequences of his actions.

REMORSE AND REHABILITATION

58. Turning then to aspects of remorse. In relation to Mr Nguyen firstly, I accept that there is some remorse demonstrated by him. This conclusion is supported by statements he made to Dr Furst, where he said that he felt very bad for the victims, but also noted that he felt he had no choice given the threats that he says had been made to him.

59. My finding about his having demonstrated some remorse is also supported by the offender’s statements to Corrective Services employees, which are recorded in case note reports that were admitted into evidence in his case.

60. In relation to Mr Tek, I accept that there has been some remorse demonstrated by him, as set out in the report by the psychologist Mr Albassit.

61. I turn then to consider the prospects of rehabilitation and future risk of each of the offenders. In assessing Mr Nguyen’s prospects of rehabilitation, I have considered the relevance of the evidence of duress to which I referred earlier. In some cases, of course, the fact that an offence was committed under duress might lead to the conclusion that, despite the seriousness of the offending, an offender’s prospects of rehabilitation are still positive. While not intending to be exhaustive, this might, for example, be where a person commits an offence that is “out of character”. However, I do not consider that in this case the aspect of duress is supportive of good prospects of rehabilitation.

62. Firstly, the offending, especially the offending involving arson and intimidation, was of a repeated nature, and involved a concerted course of criminal conduct. It cannot be described as a momentary lapse. Second, there is Mr Nguyen’s prior history of offending, both in relation to drugs and violence. Thirdly, there is his previous poor response to supervision. Fourthly, there is the assessment in the sentencing assessment report of a medium to high risk. Fifthly, there is the fact that the offender has little or no links within the community, and many of his links are criminal ones. Sixthly, there is the fact that he apparently has no fixed accommodation. Seventh, there is the fact that he has had little treatment for his drug and other problems. These matters do not auger well for his future prospects of remaining offence-free. I am not satisfied that the offender has good prospects of rehabilitation, rather, I think he is likely to represent a continuing risk to the community.

63. Turning then to Mr Tek and his prospects and future risk. Given Mr Tek’s much more fortunate background, as well as the support of his partner and family, his continuing studies, and the fact that this is his first offence, I consider that he has relatively good prospects of rehabilitation. I agree with the sentencing assessment report assessment that he is of a relatively low risk of reoffending.

64. Returning to Mr Nguyen’s case, this offender’s childhood and upbringing was a very difficult one. As the Crown conceded, it engages the principles discussed in Bugmy v The Queen (2013) 249 CLR 571. As Simpson J said in R v Millwood [2012] NSWCCA 2, at para 69, “A person who has had a seriously disturbed start in life does not necessarily bear equal moral responsibility to one who has had what might be termed a ‘normal’ or ‘advantaged’ upbringing.” As her Honour said, “Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his or her behavioural decisions...”

65. In my view, this observation is of real relevance to Mr Nguyen’s circumstances. It is in no way his fault that his childhood was so difficult. This reduces his moral responsibility, in my view, to some degree, because he is less likely to have had the resources, either emotional, material or familial, to resist engaging in the sort of activities for which he is now before the Court. This aspect, however, needs to be balanced against the importance of general and specific deterrence and the need to protect the community.

66. Mr Nguyen has also been diagnosed with Post-Traumatic Stress Disorder, a matter which the Crown does not dispute. The relevance of a person with a mental health diagnosis was discussed in CDPP v De La Rosa [2010] NSWCCA 194. In relation to the principles discussed in that case, I make the following observations. Firstly, while I do not accept that the offender’s mental condition contributed in any direct sense to any of his offences, I do accept that it made him more prone to bad influences and bad decisions. As I have said, it seems to me that this, and his associated upbringing, reduces his moral culpability to some degree. I am nonetheless of the view that general deterrence and personal deterrence remain important in his case, especially given the seriousness of the offending and the course of conduct that much of it involved.

67. I do accept that the offender’s Post-Traumatic Stress Disorder and his general background are such that custody will weigh more heavily upon him. Finally, however, and by reference to the fifth principle discussed in De La Rosa, it seems to me that the offender’s mental health issues and his difficulties in self-regulation are such that he presents a danger to the community of future offending.

DETERMINATION

68. Coming, then, to the sentences that I will impose on each of the offenders. Mr Tek, I am going to deal with you first. If you could just come forward and stand near one of the microphones.

69. In relation to Mr Tek, I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, which I do not intend to recite. I am satisfied that, for the purposes of s 5 of that Act, the so-called threshold has been crossed, and that no penalty other than imprisonment is appropriate. I impose in his case a term of imprisonment after the 25% discount for plea of guilty of 22 months - that is, one year, ten months. I have given consideration to whether that term of imprisonment should be served by full time custody or by Intensive Correction Order in the community. Section 66 of the Crimes (Sentencing Procedure) Act 1999 sets out that in making a determination about that question, community safety is to be the paramount consideration, although of course other considerations are still highly relevant.

70. In this matter, I am of the positive view that community safety would be better served by Mr Tek serving that sentence in the community. I come to that view because of his good prospects of rehabilitation, his youth, his prospects in life generally, and his community supports. In my view, it would be very much contrary to public safety to place Mr Tek into a prison environment and the negative and dangerous influences that that would involve.

71. Pursuant to s 7, then, of the Crimes (Sentencing Procedure) Act 1999, I order that the sentence of 22 months be served by intensive correction order. That will be subject to the following conditions. The first two conditions are standard conditions, the first one being that you be of good behaviour - that is, not commit any offence - during the period of that order. Secondly, that you accept supervision of Community Corrections. I impose three additional conditions. The first additional condition is that you not consume any illicit drugs or any prescription drugs other than those prescribed by a medical practitioner. The next condition is that you engage in counselling or other psychological treatment as directed by Community Corrections. The next condition is that you perform 200 hours community service. Those are the conditions, so there are five conditions altogether. I direct that Mr Tek report to Community Corrections at Fairfield within 24 hours.

72. So, Mr Tek, what that means is, you have been sentenced to a term of imprisonment of one year, ten months. However, I have directed that that sentence be served in the community on an Intensive Correction Order, which is subject to the conditions that I have just read out. If you were to breach any of those conditions, if you were to break any of those conditions, then you would be arrested and you would likely serve the remainder of that term of imprisonment. Do you understand?

73. OFFENDER TEK: Yes, your Honour.

74. HIS HONOUR: Thank you. You can take a seat.

75. In relation to Mr Nguyen, I have had regard to s 3A for the purposes of sentencing, to which I have referred earlier. I am again satisfied that the s 5 threshold is crossed, and that terms of imprisonment are the only appropriate sentences.

76. There are multiple offences for which I must sentence Mr Nguyen. In those circumstances, I intend to impose an aggregate sentence. That means that I am required to set out the indicative sentences that I would otherwise have imposed. Mr Nguyen, these are not the sentences that I will impose - these are what are called indicative sentences, and I will make the ultimate sentence clear in a few moments, when I have finished announcing these indicative sentences.

77. The indicate sentences, all of them, after 25% discount for plea of guilty, are as follows. For the sequence 1 nail salon fire offence, two years, three months imprisonment. For the sequence 2 nail salon fire offence, two years, seven months imprisonment. For the sequence 4 car fire offence, taking into account the matters on the Form 1, two years, seven months imprisonment. For the sequence 5 offence on the s 166 certificate, involving the reckless damage to a neighbouring property, 14 months imprisonment. For the sequence 1 drug supply offence, two years imprisonment, and I nominate a non-parole period of 16 months, given that that offence attracts a standard non-parole period.

78. I have given regard to totality principles in determining the overall aggregate sentence for Mr Nguyen, that is, the importance of imposing an ultimate sentence that reflects the criminality and various other important principles of sentencing, but which does not amount to an inappropriately crushing sentence. In my view, there needs to be some notional accumulation among the various offences involving the use of fire, given their separation in time and circumstances. The sequence 5 matter on the s 166 certificate should, however, be largely concurrent with the sequence 4 car fires offence, given that it was associated with the same event. However, I am satisfied that there should be some further notional accumulation in relation to the drug supply offence, given that that involved a later and discrete form of offending to the earlier offences.

68. In relation to the Form 1 matters, which I have taken into account in determining the indicative sentence for the sequence 4 offence, I am satisfied, in accordance with the principles relating to Form 1 matters, that it is appropriate that those serious matters on the Form 1 should exert some upward pressure on the sequence 4 sentence so as to reflect the need for personal deterrence and retribution for what were also serious offences.

69. In Mr Nguyen’s case, I impose an aggregate head sentence of six years, six months. It will date from 15 July 2022 and will expire on 14 January 2029. I impose, after making a finding of special circumstances, a non-parole period of four years, six months. That will date from the same date - that is, 15 July 2022, and expire on 14 January 2027. I have made that finding of special circumstances based on the offender’s relative youth and his mental health conditions, and the need for him to be monitored for a significant period in the community upon his release to parole.

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Decision last updated: 22 December 2023