R v Thomas Binh Nguyen

[2018] NSWDC 424

District Court

New South Wales

Medium Neutral Citation:

R v Thomas Binh Nguyen [2018] NSWDC 424

Hearing dates:

14 December 2017, 8 February 2018, 20 April 2018, 1 June 2018

Date of orders:

01 June 2018

Decision date:

01 June 2018

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

For Cth offences, on each count ICO for 1 year wholly cumulative

 

For firearms offences, imprisonment 3 months, 17 days.

For each other offence s9 Bond 2 years.

Catchwords:

CRIME – SENTENCE – 2 offences contrary to Criminal Code (Cth) – Possession of a shortened firearm and ammunition – Firearm Act 1996 s62(1)(b), s65(3) – Deemed supply of 6.46 grams of cocaine – Possession of 0.85 grams of ecstasy – Possession of inoperable taser – Weapons Prohibition Act 1998 s7(1) – Young man – Prior good character – Self-rehabilitated

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Criminal Code Act 1995 (Cth)
Drug Misuse and Trafficking Act 1985
Firearms Act 1996 (NSW)
Weapons Prohibition Act 1998 (NSW)

Cases Cited:

Ansari v R [2007] NSWCCA 204
Arora v Cobern [2015] WASC 440
R v Mezzadri [2011] NSWCCA 125
R v Nguyen; R v Alcazar [2017] NSWDC 386

Category:

Sentence

Parties:

Regina (Crown)
Thomas Binh Nguyen (Offender)

Representation:

Counsel:
Mr J Stephenson (Crown)
Ms CA Davenport (Offender)

  Solicitors:
CDPP (Crown)
Zahr Partners (Offender)

File Number(s):

2016/15453

Publication restriction:

Nil

Judgment

1. HIS HONOUR: Thomas Binh Nguyen stands for sentence as a consequence of pleading guilty to a number of charges. The offender has pleaded guilty to two charges contrary to section 400.9(1) of the Criminal Code of the Commonwealth of Australia. Each of those offences carries a maximum penalty of three years imprisonment.

2. The offender also stands for sentence as a consequence of committing a number of offences against the law of this State. The first such offence is possessing a shortened firearm without authority. That is an offence contrary to the Firearms Act 1996, section 62(1)(b), which carries a maximum penalty of 14 years imprisonment. There is no standard non-parole period. In connection with that offence, the offender asks me to take into account on a Form 1 possession of ammunition without holding a licence, contrary to the provisions of section 65(3) of the Firearms Act 1996. The maximum penalty for that offence is a fine of 50 penalty units. The offender also has pleaded guilty to an offence contrary to section 7(1) of the Weapons Prohibition Act 1998. That was the possession of a prohibited weapon without a permit. The weapon can be described as a Taser but it was inoperable. The maximum penalty for that offence is 14 years imprisonment, and Parliament has prescribed a standard non-parole period of five years.

3. The offender has also pleaded guilty to an offence contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985. That was the deemed supply of the prohibited drug cocaine. The amount of cocaine was 6.46 grams. The trafficable quantity of cocaine is 3 grams, the indictable quantity is 5 grams and the commercial quantity is 250 grams. Because of the quantity involved, the offence is supplying the prohibited drug, but the offender has given histories, which I accept, that the drugs were only for his personal use. The maximum penalty for that offence is 15 years imprisonment. The offender also asks me to take into account on a Form 1 in connection with that offence an offence contrary to section 10(1) of the Drug Misuse and Trafficking Act 1985, possession of a prohibited drug. The prohibited drug was 3,4-methylenedioxymethylamphetamine, normally abbreviated to 3,4-MDMA and known on the street as “ecstasy”. The amount of that drug was 0.85 grams. The trafficable quantity is 0.75 grams, the indictable amount is 1.25 grams, the commercial quantity is 125 grams. Despite the amount exceeding the trafficable quantity, the offender has only been charged with possession. The maximum penalty for that offence is two years imprisonment and/or a fine of 20 penalty units.

4. Despite the fact that the offender’s offences contrary to the laws of this State carry much more severe maximum penalties, the main offences, the important criminal culpability, are the offences contrary to the Criminal Code (Commonwealth).

Facts

5. In November 2015 the NSW Organised Crime Squad commenced an investigation into the money laundering activities of an Asian male. He was Hang Tet Cheng, who was known as Raymond when he was in Australia. Raymond was employed by or acting for an Asian drug trafficking and money laundering syndicate. Raymond was a Chinese national residing in Australia for the sole purpose of collecting money from proceeds of crime and remitting it on behalf of others to nominated destinations in a manner which would avert any undue attention from the financial and legal authorities. The phone number being used by Raymond to organise the collection of money was lawfully intercepted by police.

6. In December 2015, Raymond returned to Hong Kong and his position in the syndicate was taken by another Asian, Yiu San Yip, who was known in this country as Wilson. Wilson came to Australia on 30 September 2015 on a 12 month working holiday visa. He came here for the specific purpose of taking over the role of Raymond, who was told by those in charge of the syndicate to return to Hong Kong.

7. The role of Raymond and then of Wilson can be described as a “cash collector”. More colourfully, my colleague Robison DCJ referred to the role of Wilson as being a “bag man”. Both Raymond and then Wilson would receive instructions from a senior member of this criminal syndicate which was based in Hong Kong. The senior member of the criminal syndicate was known as a “controller”. From the facts upon which Wilson stood for sentence, there would appear to be a number of “controllers” who were given capital letters to distinguish them from each other. A controller would provide an Australian five dollar note to the person in possession of the money, and inform that person to provide the serial number of that note when asked for a “token” or “bill” number.

8. The person in possession of the money would then contact Raymond/Wilson on a designated mobile phone number which had also been provided to them by the syndicate, and the two would arrange to meet at a particular location. During the meeting, the person giving the cash would produce the relevant five dollar note when asked for the “token” or “bill”. Raymond/Wilson would verify that the token number was the same number that he had been provided by the controller. Once confirmation was made, the money was handed to Raymond/Wilson. Following receipt of the money, the cash collector would, over a period of time, proceed to remit the money in small portions to an authorised money remitter. At the time that Wilson was the cash collector, it would appear that the money remitter was an organisation known as Ocean Pass Finance. The money remitter would then transfer the money to China on behalf of the syndicate.

9. In March 2016, Wilson was arrested and charged for his involvement in the receipt and disposal of $1,799,855. That amount of money was the approximate total amount collected by Wilson from eight different people, including the offender. On 22 February 2017, Wilson pleaded guilty and was committed for sentence. He was sentenced by Robison DCJ on 15 September 2017. At that time Wilson was 23 years old. The offence with which he was charged carried a maximum penalty of ten years imprisonment under the Criminal Code. His Honour determined that the appropriate starting point in the sentence of Wilson was five years imprisonment, but discounted that by 50% to account for Wilson’s plea of guilty at one of the earliest available opportunities and because of the assistance that Wilson gave to law enforcement authorities. Accordingly, Wilson’s head sentence became two-and-a-half years imprisonment. His Honour fixed a non-parole period of one-and-a-half years and a further term of one year.

10. The role of the present offender in this Asian criminal syndicate was that of a courier. On 7 January 2016 there was an exchange of SMS messages and an arrangement was made for the offender to meet Wilson at 8pm at the cinemas in Westfield Shopping Centre at Burwood. At 8.10pm, police surveillance observed Wilson drive to Burwood and wait at the cinemas by himself. At 8.31pm, the offender called Wilson and they arranged to meet at a specified place in the car park of the shopping complex. Wilson told the offender that he was on level P1. The offender told Wilson that he would drive to that level and that he was driving a silver Honda CRV. They eventually met up. Wilson entered the offender’s vehicle and the offender drove around the parking lot for a short time. Whilst Wilson was in the vehicle, the offender moved a dark coloured bag from the back seat of the vehicle to the front seat. The bag contained at least $493,460. That was suspected to be the proceeds of crime. Wilson then left the offender’s vehicle carrying that bag. He placed the bag in the boot of his own vehicle and each of the two vehicles was driven by its driver from the car park.

11. Between 7 and 8 January 2016, Wilson engaged in a series of telephone conversations with his superiors in the syndicate, informing them that he had received $500,000 from the offender. Wilson was given instructions to meet a known money remitter on 8 January 2016 and hand over $100,000. He was instructed to dispose of the remaining $400,000 on 9 January 2016. Following Wilson’s arrest a search warrant was conducted at his home. During the search a ledger was found containing handwritten notes indicating that on 7 January he had obtained $493,460 which was clearly a reference to the money collected from the current offender.

12. The second offence against the law of the Commonwealth was similar. On 15 January 2016 the offender sent an SMS to Wilson seeking to set up a meeting at 8.30, but that needed to be delayed because the offender had some problems with his motor car. They were eventually due to meet at the Strathfield Plaza, where the offender drove onto the rooftop car park. At 8.42pm the police approached the driver’s window of the offender’s car and saw a black suitcase in the foot well of the front passenger seat. The police asked the offender to get out of his vehicle and he was then formally cautioned. Police opened the passenger door of his car and inspected the black suitcase. It was opened and was found to contain $499,900 in lots of fifty dollar notes. The offender was then arrested, cautioned and questioned and taken to Burwood Police Station.

13. Whilst the offender was at the Burwood Police Station, police executed a search warrant at the home where he was residing with his parents. The items found by the police give rise to the charges against the law of this State. During a search of the offender’s bedroom, police located:

1. Eleven plastic resealable bags containing 6.46 grams of cocaine located in various places in his bedroom, including the top drawer of his dresser.

2. Two resealable bags containing 0.85 grams of ecstasy found in the top drawer of his dresser.

3. An Energiser brand electric controlled device which was not properly functioning, found in the bottom drawer of his dresser. This is the item I earlier described as a Taser.

4. A .22 calibre shortened rifle located in a black backpack found in a linen press.

5. Thirty-seven .22 short rifle calibre cartridges inside two resealable bags and two loose .22 calibre bullets found in the backpack in the linen press, suitable for use in a .22 calibre Winchester Magnum. The bullets found are the matters on the Form 1 which the offender asks me to take into account in connection with the firearm offence.

14. After his release from the Burwood Police Station the offender returned home at 4.30am on 16 January 2016. However, he was then arrested because of the items found in his bedroom and taken to the Bankstown Police Station. At the Bankstown Police Station the offender was again read his custodial rights and offered an opportunity to participate in a further electronically recorded interview regarding the items found. The offender during that drew a house plan of his home, specifying where his bedroom was, and indicated that all of his belongings were located within that bedroom.

15. The offender was in custody from that day, 16 January 2016, until released on 2 May 2016 on parole. He spent three months and seventeen days in custody.

Seriousness

16. The two sums of money carried by the offender and handed over to Wilson amount to almost $1 million. However, Wilson was charged with recklessly dealing with $1,802,345, a substantially greater sum, and that offence carried a maximum penalty of ten years imprisonment. As I have already indicated, Wilson had dealt with at least ten persons in order to amass the amount of money for which he was charged. Those people include a number of unidentified persons, Joseph Digiglio, Anthony Nicholas, Ding Sun and Michael Nguyen. Michael Nguyen is not related to the current offender Thomas Nguyen. I sentenced Michael Nguyen on 8 September 2017: R v Nguyen; R v Alcazar [2017] NSWDC 386. Nguyen had conveyed two amounts of money to Wilson, one on 27 January 2016 in the morning at the Burwood Westfield shopping complex, but the amount was unknown and it was less than $100,000. The other amount that was intended to be given to Wilson was dealt with on the following day, 28 January 2016, and amounted to $370,000.

17. The drugs found in the offender’s bedroom, the offender tells everyone concerned, were for his own personal use rather than for supply. I accept that. The offender had, at the time that he was arrested, a drug addiction. I shall turn to that in due course, but that explains his possession of the drugs.

18. The offender did not use either the shortened rifle or the Taser in his criminal offending. He says that he was asked by another, I infer from the facts Wilson, to take custody of the shortened firearm and the Taser and the ammunition merely for safekeeping. In his drug-befuddled state, he agreed to do that. Hence, they were found in his possession.

19. Exhibit 3 concerns the shortened firearm. Part of the Crown tender includes a certificate by Senior Constable David Andreatta, who is a member of the Forensic Ballistics Investigation Section or the Forensic Services Group, and can be shortly described as a forensic ballistics investigator. The .22 rifle which has been shortened was a Lithgow model 1 bolt-action single-shot rifle. According to exhibit 3, these rifles were manufactured at the Lithgow Small Arms Factory which opened on 8 June 1912 in order to manufacture Lee Enfield mark 3 rifles and the bayonets to be attached to them, which were used by the Australia Army and other military forces in the First World War. The Lithgow Small Arms Factory produced the model 1 .22 bolt-action single-shot rifle until 1945. The rifle was also used by Australian Forces during the Second World War. According to exhibit 3:

“Bolt-action firearms are most often rifles, but there are some bolt-action variants of shotguns and a few handguns as well. Examples of this system date as far back as the early 19th century, notably in the Dreyse needle gun. From the late 19th century, all the way through both World Wars, the bolt-action rifle was a standard infantry firearm for most of the world’s military forces. In modern military and law enforcement use, the bolt-action has been mostly replaced by semi-automatic and selective-fire firearms, although the bolt-action design remains dominant in dedicated sniper rifles due to inherently better precision, and are still very popular for civilian hunting and target shooting.”

The same article also tells me that the major disadvantage of the bolt-action rifle is its far lower practical rate of fire than more modern semi-automatic weapons. Clearly, the firearm had been modified to be used, for example, in armed holdups or to be used for personal protection but modified so that it could be conveniently camouflaged or hidden. However, I accept that none of that was done by this offender, who was merely “safekeeping” the shortened firearm for probably somebody else in the Asian criminal syndicate. In other words, the offender’s criminal responsibility for that weapon is at the bottom range.

20. Not all of the ammunition found with the firearm could be used in it. In that regard, two .22 Winchester magnum rimfire calibre cartridges could not be used in it but there were eight .22 long rifle calibre cartridges which could. There were also thirty-seven .22 short calibre cartridges which could be used in the shortened rifle, but I accept that they were placed in the custody of the offender by the same person who gave him the shortened firearm for “safekeeping”. The reason why it might be thought that the offender was a suitable repository for the safekeeping of the firearm was because he was a man of prior good character with no criminal conviction whatever and, therefore, hardly a person that police would suspect as having custody of a shortened firearm and ammunition.

21. As far as the Taser is concerned, Senior Constable Andreatta’s certificate makes it clear that it was not in working order “due to either having a flat battery or an internal fault”. In R v Mezzadri [2011] NSWCCA 125, Adams J said this at [19]:

“It is obvious that the possession of unserviceable weapons must be significantly less objectively serious than the possession of serviceable weapons. Of course, the degree to which the weapons in question were unserviceable, that is to say whether the missing parts were capable of being found and the ease with which the gun could be made to work, would be relevant. Here, there was no evidence about the degree of unserviceability or the ease or difficulty with which the missing parts could be found. These are scarcely matters capable of being resolved by judicial notice.”

The Senior Constable could not tell from his inspection of the Taser whether it would not work merely because the battery was flat or because there was an internal fault. I do not know where the battery would be in a Taser, nor would I know how to charge the battery. It would be only after the battery could be charged that one could ascertain whether it worked or not. If it did not work, then there was obviously an internal electrical fault. In the circumstances, and bearing in mind that the offender only had this item in his possession for “safekeeping”, the offence should be seen at the bottom of the range for an offence contrary to s 7(1) of the Weapons Prohibition Act.

22. Clearly the offences against the law of the Commonwealth are significant. They carry a maximum penalty, however, of only three years imprisonment. As I said when sentencing Michael Nguyen:

“[18] Each of these offences was deliberately done. It would be impossible to regard any of these offences as either unplanned, impulsive, or opportunistic, or somehow committed spontaneously...

[19] The fact that the Court is unaware of the actual source of the large amounts of cash, or their future intended use, is irrelevant in considering an offence contrary to s 400.9.

[20] The mental element of the offence was considered by Howie J in Ansari v R [2007] NSWCCA 204 at [123]:

‘It is likely that an offender before the Court for sentencing for an offence within the Division will be a person facilitating the laundering of the money or actually involved in that process, rather than the owner of the money or the beneficiary of the laundering. The prosecution may not be able to show that the offender knew of the source of the money or its ultimate destination. In Assafiri v R [2007] NSWCCA 159 an analogy was drawn between money laundering offences and drug importations in that both types of offences usually reveal a hierarchy of persons involved in the conduct who have different roles to play and different gains to be made from the commission of the crime. The most important consideration in sentencing an offender for the offence under this Division will be to consider what the offender did, because there may be little or no evidence before the Court as to the organisation behind the offence, the source of the funds or the ultimate use to be made of them: see R v Olbrich (1999) 199 CLR 270 at [19].’

In Arora v Cobern [2015] WASC 440, Mitchell J said this:

‘A person may commit an offence against s 400.9(1) of the Code without subjectively suspecting that the money is the proceeds of crime. It is enough that it is objectively reasonable to suspect that the money is the proceeds of crime, and that the person objectively has reasonable grounds for so suspecting. The offence against s 400.9(1) may also be committed by a person who subjectively suspects that the money is the proceeds of crime...A person who engages in conduct proscribed by s 400.9(1) while subjectively holding the relevant suspicion may fairly be regarded as being more blameworthy than a person who does not hold any subjective suspicion.’

Here, the amounts of money involved were so large that any person, even of the most limited intelligence, would know that such a large amount of cash could only be the proceeds of crime when it was being dealt with in the fashion in which it was being dealt with by the present offenders. I accept that each offender not only had a suspicion that the cash was illegally obtained, as well as objectively that they ought to have believed that it was illegal obtained. Indeed, the offenders have admitted as much.”

23. Mr Thomas Nguyen was interviewed by Ms Alison Cullen, a psychologist, at the request of his solicitors on 11 September 2017. Ms Cullen received this account from the appellant as to how he became involved in this money laundering:

“Mr Nguyen confirmed that he had entered a plea of guilty in relation to the offences outlined herein. He explained he had been out one night with friends, under the influence of drugs and alcohol. He claimed that, ‘A friend’s friend offered me to make some money on the side and I said ‘yeah’ as ‘I thought I was helping out myself and my family.’ Mr Nguyen claimed that a conversation was later had whereby he was informed he would receive $5,000 if he handed a bag to someone. Mr Nguyen confirmed that he knew the bag in his possession contained money, however, he maintained that he was ignorant [as] to the amount thereof. When asked if Mr Nguyen had collected any financial benefits during this agreed transaction/s, he confirmed he had not. He explained that he had proceeded with the delivery of a second bag without any payment for the first transaction, before being arrested.”

It is patently clear that this offender must have realised, even if he agreed to carry out what he had carried out whilst he was under the influence of drugs and alcohol, that what he was doing was unlawful. He knew that he was conveying money. He must have realised that the money he was conveying was somehow “dirty”.

24. The offences against the law of the Commonwealth are in mid-range in my assessment. The offences against the law of New South Wales are, in my assessment, towards the bottom of the range for each of the offences here in question.

Personal circumstances

25. The real question is why Mr Nguyen is standing for sentence? Nothing in his background indicates that he should have fallen into a life of crime. Since his release from custody he has done very well. He has behaved impeccably. He has sought to restore the confidence of his family and his girlfriend in him. He has sought to throw off his drug addiction and has done so successfully. He has advanced himself in life. He has been acting as a model citizen. The effect of his being arrested and charged and perhaps his over three months in custody have been salutary, but the simple reason why the offender got himself involved in these offences is because he developed a drug habit from being merely a social user of drugs.

26. Mr Nguyen had a perfectly normal upbringing. He was born in Australia to parents who had migrated from Vietnam. He is the elder of two children. He has a younger sister. His parents separated when he was in year 5 because they were “arguing all the time”. Thereafter the offender continued to live with his mother, but he had frequent contact with his father and there does not appear to have been any animosity between his parents about sharing living arrangements with their children. After the offender’s release on bail his father returned to live with his mother and the offender and his sister, although there was no suggestion that his parents, who are divorced, will recommence their relationship. However, clearly, the mother permitted the father to live in the family home in order to support the offender when things were thought to be difficult for him.

27. His sister is two years younger than he. She has provided a reference for her brother. She is a full time registered midwife working at the Canterbury Hospital. She said this of him:

“As my only sibling, I have always looked up to Thomas and have known him to be honourable, hardworking and dependable. He is the first person that I go to when I need something to be fixed or when I need advice. As an example, when my car broke down on a busy road during the middle of the day, I did not panic because I knew that I could call Thomas and knew he would drop everything to come to my assistance, which he did without hesitation. That is the kind of person that he is.

He is the rock of our family and the handyman of the family. Having him around is a strong source of comfort and eases my fear of the unpredictability of life.

I was shocked to hear the charges against Thomas as that was not the person, brother and friend that I knew.

I know that Thomas is deeply remorseful for his actions and has worked extremely hard to better his life and those he cares about. He has changed so much since this happened. He’s become extremely dedicated to his future, his career, his studies and his relationships. He surrounds himself with loved ones whenever he is not at work and his relationship with his partner, Marianne, has been stronger than ever.”

28. When interviewed by Ms Cullen the offender told her that his childhood was “good” and had no complaint whatever about his upbringing or education. He completed year 12, but did not obtain the Higher School Certificate. He wanted to leave school at the end of year 10 to do an apprenticeship, but his parents refused to let him do so, hence he stayed at school until the end of year 12. He then commenced an electrical apprenticeship, but he stopped that after two years as he did not like it. He then commenced an apprenticeship as a carpenter and completed that at the end of last year. He is now a fully qualified carpenter. However, he continues his TAFE studies in order to become a qualified builder.

29. One of his teachers from TAFE, Mr Michael Shields, has provided another reference for the offender. He commences that by saying this:

“I have known Thomas as a student in my carpentry classes since May 2016.

From day one, Thomas has demonstrated exceptional knowledge and skills relative to his trade, far beyond his age. He is always quite well mannered, considerate and always searching for knowledge and skills. He is always available to other students and will often be seen helping them with their learning and development of trade skills and understanding of underlying knowledge and construction concepts.

Without being too dramatic, Thomas is probably the most exceptional trade talent that I have taught in all my 30 odd years of teacher construction trades.”

The offender did tell Mr Shields about his offences. Mr Shields, like the offender’s sister, tells me that he is “exceedingly ashamed and embarrassed”. Mr Shields continues thus:

“Thomas has confided in me that he regrets what he has done and is extremely sorry for what he has done and apologises to the Court for his transgression.”

It is clear from what Mr Shields subsequently says that he maintains his confidence in and high regard for the offender notwithstanding his now knowing of the offender’s having committed the offences for which he stands for sentence.

30. The offender has been working in his trade for Acubuilt Pty Ltd, a commercial construction and carpentry company based at Marrickville. The director of that business is Mr Tai Nguyen, but as I understand it he is not related to Mr Thomas Nguyen either. In a reference dated 18 October 2017 Mr Tai Nguyen points out that he had known the offender for almost two years since he commenced working with his company. He says that the offender brought with him “a wealth of knowledge, honesty, reliability and hard work”. Mr Nguyen went on to say this:

“My business is a family business. I look out to Thomas like my brother and I get the same back. We talk and care about each other like a family, there is no limit between us, at work we are at work, and off work we are friends.”

He knows of what the offender has done. He ended his reference with this matter:

“He is a dedicated and upstanding member of the community and someone who society can be proud of. His poor choices, his poor judgment he will regret for the rest of his life. I know that he has learnt much since this happened. I have faith that he will never do anything like this again.

I pray and wish for Thomas, so he can continue working with us. There is too much good and potential that I can see in him for the future of himself and the future of all of us.”

A photograph of the employees of Mr Tai Nguyen’s company indicates that there are 17 persons working in the company.

31. As I said earlier, one wonders why Mr Nguyen is standing for sentence. The reason for that is contained a little later in Ms Cullen’s report. She said this:

“Mr Nguyen claimed that he commenced drinking alcohol socially at the age of 17 years. He advised that by the age of 18 years he commenced using both cocaine and MDMA. He describe this use as having been initially on weekends before increasing the use of cocaine during the week, including at work. Mr Nguyen confirmed that cocaine had been his drug of choice as ‘it gave me a high (and) confidence’. He estimated that he used 3.5 grams (an ‘eight ball’) in one weekend and subsequently he would purchase larger quantities to be cost-effective. Mr Nguyen advised that he continued the use of both cocaine and MDMA until ‘my arrest’ on 15 January 2016.”

32. Since his release from custody the offender has been seeking counselling from Ms Kathryn Humby, a psychologist. She sets the offender’s turning to drugs in its social context:

“When Mr Nguyen turned 18, he started going clubbing with school friends and his extended friendship group. This was his introduction to drugs, alcohol and then a combination of alcohol and cocaine and occasional MDMA at festivals/raves. Mr Nguyen remembers the first time he tried cocaine - ‘everyone was using it’. Mr Nguyen did not want to be the only one who said no. Mr Nguyen reports being heavily intoxicated with alcohol at the time. Looking back, Mr Nguyen sees he didn’t have any self-control, he ‘didn’t pass out, but wasn’t really there’. Mr Nguyen reports that cocaine gave him a big confidence boost and this was important to him. He felt he could talk to friends, girls and have a good night. After the first few times using cocaine Mr Nguyen felt he couldn’t have fun without it and that something was missing and he was never fully satisfied unless he was using cocaine.”

33. That is how the drug addiction commenced. The drug addiction led to a need for money to support the drug habit and that led him in his drunken and drug-addled state to agree to participate in the Asian drug syndicate which led to his arrest. So, unfortunately, do many other members of our community fall.

34. The arrest clearly led to the over three months’ gaol. The short gaol term appears to have been salutary. Ms Cullen obtained this history:

“Mr Nguyen confirmed that he was incarcerated for a period of three and a half months following his arrest for the above mentioned, prior to being granted bail. He described the helplessness he felt and witnessed from his cell-mate who lost a loved one while incarcerated. He also describe ‘humiliating my family and girlfriend. I let down the people who care and support me’. Mr Nguyen indicated that he believed that ‘if it wasn’t for that (his cocaine addiction) I wouldn’t have ended up having the conversation’ regarding the offending. He further confirmed that he would not have felt as compelled to engage in criminal behaviours in order to make money which could support his addiction.”

35. Ms Humby gives me this history of what the offender told her about his experience of being in gaol:

“Mr Nguyen said, ‘Going in was a shock, being stripped of freedom’. Mr Nguyen was very wary of his surroundings and safety when in gaol, as he had to be careful not to offend anyone, and standing up for himself, for example, not being pushed around or confronting someone who has taken something of his, could lead to a fight. Mr Nguyen was on edge as he was wary of being in a fight, which he saw happening quite a lot. Mr Nguyen reported feeling threatened by other inmates.”

36. In his letter to me of 21 October 2017 Mr Nguyen said this:

“My days in custody were the worst days of my life. Til now, I get shivers thinking about it and I am terrified of going back. I have since had plenty of time to reflect on my actions and weigh out the troubles that this has brought upon myself, my family and others around me including the community.”

37. Whilst many criminologists say otherwise, my experience is that the short, sharp experience of being in full time custody can often have a salutary effect. It has had for Mr Nguyen. As I mentioned earlier, he continues working full time, continues with his TAFE studies to become a qualified builder, continues having psychological counselling and continues to abstain from illicit drugs.

38. Exhibit 4 are two intensive correction assessment reports. The first one tells me that the offender could not be given an intensive corrections order because there were no community service work placements available. The second one tells me that he is suitable for an ICO and that community service work is now available for him. The Community Corrections Officer, Ms Lissa Rebec, succinctly provides this assessment of the offender:

“Mr Nguyen is a 25 year old man who resides with his parents and sister in supportive accommodation and benefits from full-time employment. It appears the offender has now addressed the mental health or substance abuse issues that contributed to his offending behaviour. Mr Nguyen appears to be a good candidate for an intensive corrections order, and despite full-time employment, expressed a willingness to be available for community service work.”

39. Returning this young man to gaol would do absolutely no good: no good for him and no good for the community. He is now living a worthwhile and positive life in our community. He is fortunate indeed to have maintained the support of his family and the support of his girlfriend, Marianne, who is present with him in court today, and who provided a reference bearing date 14 September 2017.

40. She tells me that when the offender was arrested, she was shocked and embarrassed. She believed that the events that unfolded were completely out of character for this offender. They had met in February 2015 and they had essentially been in a committed relationship from that time. She maintains her support for the offender. Ms Marianne Dang is not an ingénue. At the time of writing her reference she was completing the final semester of a Master’s degree in Public Health and she was working as an administrator at the Concord General Repatriation Hospital. She had held that position for three months. Prior to that she had been working for another health provider at Double Bay for a substantial period of time. She speaks positively of the offender, as one would expect a lady in a committed relationship to do, but she clearly is an intelligent young lady who sees much positive in the offender, and that assessment clearly is shared by many others in our community.

Disposition

41. I have reached the view that in respect of each offence against the law of the Commonwealth, I should sentence the offender to imprisonment for one year, but that is to be served by way of intensive corrections in the community. The two sentences will be wholly cumulative in order to demonstrate the Court’s condemnation of the conduct in which the offender engaged and in order to enforce general deterrence, to dissuade any other young person in this offender’s position from engaging in a similar course of conduct.

42. In respect of the firearms offence, I intend to sentence the offender to imprisonment for three months and seventeen days for the offence which he has actually committed.

43. For the other offences I intend to sentence the offender to enter into a bond to be of good behaviour for a period of two years pursuant to section 9.

44. In short form I should say this. The offender pleaded guilty at the earliest available opportunity, and therefore would be entitled to at least the utilitarian value of a discount of 25% on the sentence properly to be passed upon him. The offender’s prospects of rehabilitation are excellent. The prospects of the offender’s reoffending are, in my assessment, extremely low, so as to be almost negligible. I accept that the offender has true contrition and remorse, that he understands that engaging in money laundering is probably supporting other illegal activities, such as drug dealing, gambling, prostitution, pornography, and insofar as money laundering needs couriers to do its work, the money laundering also supports other serious crimes which cause havoc in our community. I accept that he is truly remorseful and truly contrite, and knows the effect of what he has done.

45. Thomas Binh Nguyen, on the charge that on 7 January 2016 at Burwood in this State you dealt with money, it being reasonable to suspect that such money was the proceeds of crime, and at the time of dealing, the value of the money or property was $100,000 or more, namely, $493,460, you are convicted. I sentence you to imprisonment for a term of one year commencing today, to be served by way of intensive correction in the community. You are to report to the Community Corrections Office at Bankstown on 4 June 2018 by 4pm.

46. On count 2 of the indictment, that on 15 January 2016 at Strathfield in the State of New South Wales you dealt with money, it being reasonable to suspect that such money was the proceeds of crime, and at the time of dealing the value of the money or property was $100,000 or more, namely, $499,900, you are convicted. I sentence you to imprisonment for a term of one year commencing on 1 June 2019. You are to report to the Community Corrections Office at Bankstown on 4 June 2018 by 4pm.

47. On the charge that on 16 January 2016 at Greenacre you did possess a shortened firearm that was not a pistol without being authorised to do so by permit, you are convicted. I sentence you to imprisonment for three months and seventeen days to date from 16 January 2016 and to expire on 2 May 2016. In passing that sentence I have taken into consideration the matter on the Form 1.

48. On the charge that you possessed a prohibited weapon without a permit at Greenacre on 16 January 2016, you are convicted. Pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999, I order that you enter into a good behaviour bond for a period of two years from today. Conditions applying during the term of the bond are as follows:

1. you are to appear before Court if called upon to do so at any time;

2. you are to be of good behaviour;

3. you are to reside at [redacted] Greenacre; or,

4. you are to advise the Registrar of this Court by pre-paid registered post of any change of residential address during the term of the bond.

49. On the charge that on 16 January 2016 at Greenacre in this State you did supply a prohibited drug, namely, 6.46 grams of cocaine, you are convicted. Pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999, I order that you enter into a good behaviour bond for a period of two years from today. Conditions applying during the term of the bond are as follows:

1. you are to appear before the Court if called upon to do so at any time;

2. you are to be of good behaviour;

3. you are to reside at [redacted] Greenacre; or,

4. you are to advise the Registrar of this Court by pre‑paid registered post of any change of residential address during the term of the bond.

In passing that sentence I have taken into account the matter on the Form 1.

50. Now, in case you do not know what the section 9 bonds mean, Mr Nguyen, if at any time during the term of the bond, that is, two years, you commit an offence, you will be brought back before me and you may be dealt with for either a breach of the bond or for the original offence for which I imposed the bond, that is, you might get another sentence which would be harsher, do you understand? So the important thing from your point of view is to be of good behaviour, that is, not to commit any crime, understand?

51. Any other orders sought?

I order the drugs be destroyed.

Liberty to the Crown to apply.

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Decision last updated: 15 January 2019