appellant. Aggregate sentence of 10 years imprisonment commencing 14 April 2016, expiring 13 April 2026, with non-parole period of 6 years 6 months expiring 13 October 2022. Indicative sentences: count 1...
Key principles
The sentencing judge must ensure parity of treatment between co-offenders sentenced for common offences, subject to rational distinctions based on objective and subjective...
Where co-offenders are sentenced at different times, the earlier sentence sets the benchmark for the later sentence for common offences, but the later offender is not bound by...
A significant criminal history, while not necessarily an aggravating factor under s 21A of the Crime (Sentencing Procedure) Act 1999, disentitles an offender to leniency and...
The utilitarian value of a plea of guilty warrants a discount, the extent of which may vary between co-offenders based on the timing and circumstances of the plea (paras 4, 12).
Issues before the court
Whether the sentence imposed on a co-offender (Tannous) binds the sentencing of the applicant (Nguyen) for common offences
Whether findings made in Tannous' sentencing that Nguyen was more culpable could be adhered to
Plain English Summary
Loc Nguyen was sentenced to 10 years in prison for his role in a drug manufacturing operation with co-offender Abby Tannous. The judge had previously sentenced Tannous to 7 years 8 months. Nguyen received a longer sentence because he had a serious prior conviction for drug importation (while Tannous had none), faced extra charges for handling criminal proceeds including a luxury Rolex watch, and received a smaller discount for pleading guilty. The judge initially thought Nguyen was more responsible for the drug operation than Tannous, but changed this view because Nguyen's lawyers never had a chance to challenge that evidence. Both were ultimately treated as equally responsible for the drug manufacturing. The judge found Nguyen had good prospects of rehabilitation based on his positive behaviour in prison, allowing for an earlier parole eligibility. The judge strongly criticised the 3.5-year delay in bringing Nguyen to sentence, calling it 'a complete and utter scandal'.
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Judgment (2 paragraphs)
[1]
Judgment
Mr Nguyen, my practice is to tell people in advance what sentence is to be imposed. In your case, I proposed to fix an aggregate sentence of ten years imprisonment to commence on 14 April 2016. That sentence will expire on 13 April 2026 with a non‑parole period of six years, six months, expiring on 13 October 2022. You will be eligible for release to parole in October 2022. I will give my reasons for that decision.
Whether the applicant's prior conviction for importing border controlled drugs was an aggravating factor
Whether special circumstances existed to justify adjustment of the non-parole period
Cited legislation
No linked legislation citations have been extracted yet.
Before I commence going through the details of the charges and the pertinent matters that arose out of this sentencing exercise, it is important from the outset to point out that I sentenced the co‑accused of this gentleman in 2018. Now that co‑accused was a man called Abby Tannous and I sentenced him on 27 July 2018. Both the defence and the Crown have had access to my remarks on sentence in relation to that matter despite all their imperfections.
I have told the prisoner in advance what sentence is to be imposed. But for the general purposes of understanding the reason I have distinguished him between Mr Tannous, it is very important from the outset to explain why that is so. I sentenced Mr Tannous to seven years, eight months imprisonment dated back to the day he came into custody with a non‑parole period of four years. The starting point of the sentence for him before any discount was to be granted was 11 years imprisonment. My understanding is that that sentence has not been the subject of appeal by Mr Tannous, nor by the prosecution so far as I am aware, and I have not been told in these proceedings that it has been.
So far as this prisoner is concerned there are a number of substantial distinguishing features that require a bigger sentence to be imposed upon him. A starting point for that is to recognise that whilst I am prepared to give him a 25% discount for each indicative sentence and the totality of sentence upon the otherwise appropriate sentence for the utilitarian value of the benefit of the pleas of guilty, Mr Tannous received a discount of 30%.
Another substantial distinction between this prisoner and Mr Tannous is their criminal history. Mr Tannous was a man without any criminal convictions. Mr Nguyen comes forward for sentence with a very significant conviction on his record. One that I agree does not require a finding of an aggravating factor but certainly a conviction that disentitles him to any specific leniency on the basis of criminal history. He was convicted at the Sydney District Court on 30 September 2011 and he was convicted of the offence of importing a marketable quantity of a border controlled drug. He was sentenced to five years imprisonment commencing on 15 September 2010 with a non‑parole period of 3 years commencing on the same date and purportedly to expire on 14 September 2013.
I gather from background material including the psychologist's report which has some history from the prisoner that he was released at the expiry of his non‑parole period. This just standing by itself is a reason for distinguishing between the two men.
Other features that distinguish Mr Tannous from this particular prisoner are the following. Firstly, Mr Tannous had a significant history of mental illness. This was a proven mental history, not dependent on a report prepared for the Court relying upon the history given by the prisoner, but based upon a range of evidence that was available to the Court. Mr Tannous had a longer history of regular employment. He had a significant vulnerability of time of offending. I point out there that I made a finding in his favour notwithstanding the circumspection that is required in relation to these matters that he was to some degree subject to what is called non‑exculpatory duress.
The combination of that feature and his mental illness left me concluding that I should give slightly lesser weight to general deterrence although it was a very significant matter in the sentencing exercise, lesser weight to some degree to specific deterrence and slightly lesser weight to his moral culpability. These features, of course, do not arise in this matter, as I will explain shortly.
I also determined that he was unlikely to reoffend, had good prospects of rehabilitation and has shown remorse, as mitigating factors. I have concluded in relation to this prisoner that I am prepared to make a finding that he has prospects of rehabilitation which require recognition as a mitigating factor. I cannot conclude on balance that he is unlikely to reoffend in light of his prior criminal history in conjunction with this matter.
I am prepared to find in favour of the prisoner that there is a degree of remorse which is available as a mitigating factor. Furthermore, Mr Tannous, as the evidence summarised in my judgment reveals, ran what I would regard as a "more positive case" on the issue of his good character prior to his offending, although that is not surprising given the difference in their criminal histories.
I also have to bear in mind, in relation to sentencing this prisoner that he is required to be sentenced in relation to three additional offences to those brought against Mr Tannous. Three offences of recklessly dealing with proceeds of crime, two of those matters are not particularly significant but count 3 on the indictment relating to this prisoner is a matter of some substance. Ultimately, I have determined by relationship to the aggregate sentence and the indicative sentence for the drug offence that they do not significantly increase the otherwise appropriate sentence, but they do so to some extent.
I concluded by reference to the aggregate sentence I indicated to the prisoner, that the indicative sentence I would impose for the 'manufacture large commercial quantity of prohibited drug' offence, count 1, which is of course the most serious offence with which I am concerned and is the common serious offence with Mr Tannous, should be nine years imprisonment with a non‑parole period of six years imprisonment. In other words, by reference to the central charge, bearing in mind the prisoner and Mr Tannous have a large number of common charges to be taken into account on a Form 1, the difference in the sentencing posed upon this prisoner with Mr Tannous by way of head sentence is a difference of one year and four months reflecting those distinguishing features.
It might be said, although Mr Nguyen might not agree with this, that I would have been entitled to fix a sentence that more significantly reflected the difference between this prisoner and Mr Tannous, just by reference to the matters that I have identified. I have concluded, however, in all the circumstances that whilst I believe it was within my discretion to make the difference even greater, I chose not to do so, endeavouring to instinctively synthesise all the relevant matters to be taken into account.
It must be fairly said just standing alone, the criminal history of this prisoner, and the additional number of charges, represent very significant differences, as I have said earlier, from that of Mr Tannous.
I have concluded in relation to the 'recklessly deal with proceeds of crime' charges', firstly involving the $4,500 that I should impose a sentence of 12 months imprisonment as an indicative sentence. In relation to the recklessly deal with proceeds of crime offence involving the Rolex watch, I should impose an indicative sentence of two years and three months. Of course both of those offences have a maximum penalty of ten years. For the recklessly deal with proceeds of crime involving $600.70, I should impose an indicative sentence of nine months imprisonment. But the accumulative effect of those sentences would be effectively in the context of the aggregate sentence I propose a period of one year.
I have also made a finding of special circumstances adjusting in part or to some extent the relationship of the non‑parole period to the balance of sentence.
By fixing an aggregate sentence I have had regard to the totality of the criminality involved in the context of the way in which that term is understood in decisions such as 1988 decision of the High Court of Mill v R and the principles that were enunciated in the judgment of Holder from 1983, which the High Court in 1988 adopted. That is a judgment of the New South Wales Court of Criminal Appeal given by Street CJ. I am also mindful, of course, of what the High Court said in the decision of Pearce v R (1998) 194 CLR 610 particularly in the majority judgment at [45] on that matter.
Those matters being said, it is appropriate to turn to one other introductory issue before I deal with the detail of the evidence in the case and that is the issue of parity of sentencing which is, I hope, reflected in the final decision I have made by reference to the decision in Mr Tannous. I think it is convenient in that regard perhaps to note the judgment of Jimmy v R (2010) 77 NSWLR 540. There, of course, there was a lengthy judgment by Campbell JA, concurred with by and large by Howie and Rothman JJ in respect of a number of issues including issues relating to parity of sentencing.
But for convenience sake, I cite the observations of Rothman J in that case appearing at [254]-[255]. He pointed out in his usual erudite and learned way that, "The principle of parity in sentencing derives, as the High Court made clear, from an application of the fundamental principle of 'equal justice', citing Postiglione v R (1997) 189 CLR 295 at 301-302, per Dawson and Gaudron JJ" (citing an earlier decision from 1984 of the High Court called Lowe v R). Rothman J went on to state:
"Equal justice requires that like should be treated alike and that the difference in treatment of different persons should be rational. Equal justice is a principle that is fundamental to the exercise of judicial power"
That brings me back to the comparison between this prisoner and Mr Tannous. As I said the major principal charge is common. All the charges now on the Forms 1 relating to both men are common. The only additional charges are three principle charges relating to recklessly dealing with proceeds of crime to which I have referred.
I heard evidence in Mr Tannous' matter that I need not dilate upon. It is set out, in the judgment that I gave in relation to him. One of the matters I concluded from the evidence available to me in relation to Mr Tannous, was that Mr Tannous was the person involved in the preparation and "manufacture" of either the precursors or prohibited drugs in question. That he was in effect, "the cook". And I concluded that Mr Nguyen, for reasons I will not dilate upon at the moment, was in fact in a more culpable position that Tannous.
I cannot deny the fact that I have heard evidence in relation of that matter and made a decision which on its face would be adverse to Mr Nguyen. However, bearing in mind Mr Nguyen comes forward for sentence before me over a year after Mr Tannous was sentenced, bearing in mind that Mr Nguyen's lawyers were not able to cross‑examine witnesses that were called in the Tannous matter, bearing in mind, points that have been made here in fairness with quite a deal of perspicacity from the parties as to the role of the prisoner, and listening to what has been said about that in oral submission I have concluded that that finding that I made in relation to Mr Tannous, I cannot adhere to in relation to Mr Nguyen.
I have concluded in effect that the two men were involved in a joint criminal enterprise. There is insufficient evidence, certainly not evidence sufficient to establish a relevant fact beyond reasonable doubt, to conclude that Mr Nguyen is more culpable then Mr Tannous. I have ultimately, in the context of parity of sentencing principles, noting what I have pointed out to be the main differences between the two men, concluded that I should treat the prisoners as equally culpable for the crimes that are common to them.
If I have concluded that Mr Nguyen was in fact in some way superior to Mr Tannous, was the person responsible for setting up the process of manufacture, for financing it and the like, giving direction to Mr Tannous and was in fact the person who recruited Mr Tannous. Clearly I would be required to impose a substantially greater sentence upon Mr Nguyen that I have determined to impose. So that must be clearly understood. Ultimately in general or specific terms, I have concluded that I should as a starting point, by reason of their culpability for the common crimes, treat them as equals.
But then again Mr Nguyen should understand, certainly the lawyers would understand, that when you come forward for sentence for more charges than a co‑accused where there are common charges, ordinarily unless there be some special reason not to do so, there would be a greater sentence in any event for the person facing the greater number of charges.
The charges for sentence, to recap upon matters that I have identified common between this prisoner in the sentencing of Mr Tannous are firstly, a charge of manufacturing a prohibited drug in not less than a large commercial quantity. This concerns the manufacture of 14.156 kilograms of 3,4-Methylenedioxyphenylpropan-2-one, otherwise known as MDP2P. That is identified as the facts made clear and the submissions made clear as both a prohibited drug and a precursor to the manufacture of MDMA.
This is an offence contrary to s 24(2) Drug Misuse and Trafficking Act 1985. It carries a maximum penalty of life imprisonment and/or a fine of 5,000 penalty units. I do not propose to impose a fine as it would not be practical in the circumstances. It is not to be forgotten to have a standard non‑parole period of 15 years imprisonment.
The three charges of recklessly deal with proceeds of crime contrary to s 193B(3) Crimes Act carries maximum penalties of ten years imprisonment. I just point out in relation to those offences that in respect of one of them, the prisoner was committed for sentence. That is concerned with the prisoner's possession of a gold Rolex watch, as it is described in the particulars. The other two offences of knowingly deal with proceeds of crime were on the original Form 1. I point out, unless I have already done so, the prisoner is in fact not pleading guilty to 'knowingly deal with proceeds of crime' but "recklessly" dealing with proceeds of crime, which involves a different mental state.
It is because of that change to those charges, notwithstanding, as I understand it, pleas of guilty entered in the Local Court but subsequent to negotiations that properly occurred between the Crown and the defence, the 'deal with proceeds of crime' charges that were on the Form 1 were moved to an indictment, as was the committal for sentence matter. But the charges were changed from "knowingly" deal to "recklessly" deal. And of course that aspect of the matter is reflected to some extent in the maximum penalties. Certainly it is a less culpable level of moral culpability than "knowingly" deal with proceeds of crime.
There are then, on the Form 1, six offences. One is possess precursor with intent to use in manufacture or production of prohibited drugs. This is concerned with 24.51 kilograms of safrole contrary to section 28(1)(a) Drug Misuse and Trafficking Act 1985. That carries a maximum penalty of ten years imprisonment and/or a fine of 2,000 penalty units.
Possess another precursor with the intent to use in manufacture or production of prohibited drugs, involving 225 grams of palladium chloride, contrary to the same provision carrying the same maximum penalty. As does the third matter on the Form 1, possessing a precursor with intent to use in manufacture or production of prohibited drug being concerned with 40.151 kilograms of nitromethane. There is a fourth charge of this type under the same provision; that is concerned with 838 grams of mercuric chloride.
The final two charges on the Form 1 relate to possess drug manufacture apparatus to produce prohibited drugs involving possession of flasks of various types, a heating mantle, what is called a 'plain still head', and two 'Davies condensers'. That charge is contrary to s 24A(1)(a) Drug Misuse and Trafficking Act 1985 as well. The sixth charge is a charge of manufacture a prohibited drug contrary to s 24(1) Drug Misuse and Trafficking Act 1985. That offence if dealt with as a discrete matter for sentence, carries a maximum penalty of 15 years imprisonment and/or a fine of 2,000 penalty units.
In taking into account, the matters on the Form 1, I do so in accordance with the guideline judgment relating to matters on a Form 1 determined by the Court of Criminal Appeal in 2002. I particularly refer to paras [18]-[44] of that judgment. There, the Court of Criminal Appeal, led by Spigelman CJ, reflected upon the fact that one is only concerned with an appropriate sentence for the principal offence. The principal offence as I understand it is the manufacture prohibited drug in not less than a large commercial quantity. The significance of matters on a Form 1 may serve to require a much greater sentence to reflect the retribution and deterrence in relation of the principle offence. In my view, these matters on the Form 1, merely, if I can use the word in a neutral way, reflect upon a process of manufacture intimately connected with the matters admitted by the prisoner by his plea so far as his involvement in the manufacture of a large commercial quantity of a particular prohibited drug.
The judgment in Tannous went through in some detail the facts of the circumstances of the surveillance. I do not propose to reiterate most of those matters save for pointing out some facts that relate purely to this prisoner. One fact relied upon by his legal representatives is that a particular hire car or van was hired by the prisoner in his own name, using his own license, thus leaving him open to exposure or detection. I have taken into account the submissions that have been made about that as it might reflect upon his role. Of course, one could always say on the other hand that he would never have thought it was the subject of police surveillance at the time otherwise he would have desisted from the conduct that brings him to the Court. But, be that as it may, there are some matters raised on his behalf that are relevant to this sentencing exercise but not such as to warrant a finding that he was less culpable that Mr Tannous.
The manufacturing process occurred over a period of something in the order of five to seven weeks. The prisoner was observed attending upon the place of manufacture from time to time. There were discussions or at least one discussion recorded between him and Mr Tannous. I accept that Mr Tannous was the person responsible for the actual process of manufacture. But it does not lead in all the circumstances of the matter to a conclusion that Mr Nguyen was some type of "sous" chef and thus less culpable than Mr Tannous.
The prisoner was involved, for example, in disposing of chemical waste at one point. In respect of the circumstances of his arrest he was found to have at his address at Randwick when the police swooped in on 14 April, 40 empty 20 litre capacity tubs, a chiller unit and a chiller box, two square heating mantle units, still boxed in original packaging, and four empty containers labelled as hydrochloric acid. Those matters found there were of the same type as those found during the search of the place of manufacture. The process of manufacture, its location and the like as well as the aggregation of materials for the purposes of manufacture reflects a process of some sophistication, there can be no doubt of that.
Relating to the dealing with proceeds of crime offences, there are these facts to be made or determined. The prisoner was in possession of $4,500 in Australian currency, at least in the sense of that was located at his home, and that is accepted as being recklessly dealt with as proceeds of crime. The Rolex watch that was found was later valued at $43,450. It was not a 100 baht or a 100 rupiah Rolex imitation you can buy at Kuta Beach.
During a lawful interception of the prisoner's mobile phone on 24 February, he was heard to discuss the sale of the Rolex watch to an unidentified man to whom the prisoner has noted that he had paid $52,500 for the watch. It must be pointed out in relation to that aspect of the matter of course that the facts provided to me, indicate that between the years 2011 and 2017 the prisoner had not lodged an income tax return.
I should point out in his favour of course he was in gaol in 2011, 2012 and 2013. I accept from a reference he has provided that he was in fact working with a construction company for some period of time. I do not criticise him for not lodging a tax return but the facts of the matter are that he was in possession of a very valuable item and living a particular lifestyle that was not consistent with someone who was unemployed. But having said that, he is not being penalised for not putting in a tax return. Certainly I do not have enough information as to precisely what he was doing to supplement the income from the employer that I mentioned. Although I note that employer's reference stated that he ceased employment with that construction company in 2015. That is some months before he was arrested in relation to the current matters.
So it emerges from those facts by reference to the various observations made of the two men and their activities that whilst there was one aspect of the process of manufacture for which Mr Tannous was more responsible there is no basis upon which I could distinguish between them to the favour of this particular prisoner. In fact, there is a basis upon which I could have but will not conclude this prisoner is more culpable. That is the basis upon which Mr Tannous was sentenced by me in the absence of Mr Nguyen's legal representative.
The prisoner was arrested on 14 April 2016. He has been in custody since that date, thus any sentences I impose will commence on that date.
One last fact I should note relevant to what I am required to deal with is the fact that the prisoner, as the charges reveal, was also in possession of a small sum of $600, the subject of a separate charge.
I should, by reference to the facts, just note some other matters. An expert forensic chemist examined the industrial unit where the process of manufacture was going on. He made various observations which I have summarised in the judgment of Mr Tannous. The prohibited drug, MDP2P, is a prohibited drug that can also be regarded as precursor to the manufacture of MDMA. I also note that MDP2P residue was found in a number of condensers, that is in addition to the quantity the subject of the charge reflecting an ongoing process of manufacture and other traces of MDP2P were found elsewhere.
The 24.519 kilograms of the precursor safrole as well as the precursor palladium chloride were - in conjunction with another precursor - capable of producing a large commercial quantity of MDP2P beyond, as I understand it, what was already found. The expert describes a method to produce MDMA which involves the reaction of MDP2P with nitromethane and mercuric chloride which were precursors found within the unit. A total of 40.151 kilograms of the precursor nitromethane was found in the unit along with 838 grams of the precursor mercuric chloride.
He states that with the chemicals that were available beyond what was found, a large commercial quantity of MDMA could be manufactured with the chemicals and precursors found in the unit. I have already made note in the Tannous judgment about the significance of the instruction book that was found with Mr Tannous' fingerprints.
So that is the essence of the objective facts that are brought against the prisoner. I reached a conclusion in relation of Mr Tannous' matter that, having regard to all the factual matters relevant to him, the character of the process of manufacture, the fact that it was an ongoing process of manufacture, the quantity of the prohibited drug that it was actually produced, taking into account the contextual evidence and the like, that the offence was one within the middle range of objective seriousness but towards the lower end. I make the same conclusion in relation to this prisoner.
The principal offence, that is the first count on the indictment, is an offence that requires consideration of Pt 4 Div 1B of the Crime (Sentencing Procedure) Act 1999, particularly ss 54A and 54B. I have already referred to the fact that the principal offence has a standard non‑parole under the division. Section 54A(2) provides that:
"The standard non‑parole period represents the non‑parole period for an offence in the Table to this Division that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness."
S.54B(2) provides that:
"The standard non‑parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender."
In relation to this prisoner I have noted the mitigating factors that can be found. The plea of guilty, of course, is a mitigating factor as well. With regard to aggravating factors, I concluded in relation to Mr Tannous, and I conclude in relation to this prisoner that, notwithstanding what has been put by learned counsel for the prisoner, I should regard the offence as a matter attracting the aggravating factor of "planning". I cannot conclude that it is part of organised crime although one would have one's suspicions of this; that this prisoner and Mr Tannous had connections with a wider group that might be called an organised crime group. But I cannot find that beyond reasonable doubt.
Having reached that conclusion, as I said in relation to Mr Tannous, I bear in mind, that planning to a degree is an integral part of this type of offending. There is a degree of planning required to set up a process of manufacture. Although the degree of planning in this matter clearly is beyond what could be called "the norm" noting the range of chemicals, the amount of chemicals, the availability of spare manufacturing equipment, the renting of an industrial unit and the like, it is not a significant aggravating factor beyond what could ordinarily be found under s 21A(1) of the Act.
Likewise in relation to the issue of financial reward, his criminal enterprise was for the purposes of financial reward and one might have thought the financial reward would be substantial. That having been said, as with Mr Tannous, accepting as was submitted that financial award is a matter than ordinarily follows from involvement in offences of this type, the requirement of finding an "aggravating factor" is a finding that is a matter beyond what would normally be expected in the consideration of the particular offence for sentence. The range of material available on this matter reflects upon a substantial financial reward. But again, even found as an aggravating factor under s 21A(2), it is not a substantial matter beyond those matters that might be found consistent with the terms of s 21A(1).
Thus, to put it in a nutshell, such aggravating factors can be identified are not matters of significance or great substance in this sentencing exercise. The truth of the matter is, the facts speak for themselves. The principle offence is one that carries a sentence of life imprisonment. That of itself speaks of the seriousness of the offending.
The issues of the prisoner's criminal history I have already dealt with, I was not prepared to determine that it was an aggravating factor. That have been said however, I cannot accept the submission that his criminal history was not a "significant" matter in this sentencing exercise. It really is beyond acceptance that a person who has previously spent five years in gaol for importing what would be called in Commonwealth terms a "border controlled" drug did not have a "significant" criminal history in the context of sentencing him for a drug offence that carries a maximum of life imprisonment, plus other drug offences. But as I said, whilst it is not an aggravating factor I cannot find it as a mitigating factor.
When I sentenced Mr Tannous I was assisted to limited extent by some comparative cases. I have not been drawn to any comparative cases in this particular sentencing exercise. The truth of the matter is, and that is why I spent so much time on this at the commencement of the sentencing exercise, that Mr Tannous' sentence must, by definition, set the benchmark for sentencing this prisoner for offences that are common to Mr Tannous. Thus, the issue of parity of sentencing and the significance of the sentencing of Mr Tannous and the reasons for arriving at the sentence that I imposed on Mr Tannous loom as very important matters in the determining an appropriate sentence for Mr Nguyen having regard to all the circumstances.
I have made some reference to a comparison of some of the material in this case to that that was the subject of comment in - by reference to the case of Mr Tannous. I have already referred to the fact that Mr Tannous had a significant history of mental illness, which was a proven history independent of any representations made by the prisoner. In this matter, Mr Nguyen has produced a psychologist's report. I have noted the detail of that report and the history of the prisoner. I have taken that into account that his personal circumstances are not such as to warrant a particular comment. I cannot find anything particularly significant in his background that explains his offending beyond some background of abuse of drugs. I quite accept that his involvement in criminal activity may have had its germination, if that is the correct expression, in his association with the use of drugs. But these offences that I am concerned with and his previous conviction go beyond casual involvement with the use of drugs.
He was unable to identify any specific traumas related to his childhood or any significant adverse memories. He had difficulties in his relationship with his parents from time to time but nothing of substance. So far as his last time in custody, he told the psychologist that he was a trusted prisoner and he had responsible positions in custody and so is the position now.
I am prepared to accept by reference, to first of all, the case notes that have been produced from the Department of Corrective Services, from reference material available from a Pastor who is associated with the gaol and an Assessment and Planning Officer in the Department of Correct Services, that the prisoner is regarded as, if I could use the expression, a model prisoner. He is favourably reported upon for his honesty and his conduct in custody. He has also, whilst in custody, endeavoured to undertake various courses in the hope that this will prepare him better for his release from custody and also assist him in the course of his path through the custodial system.
He is described in some case reports as working efficiently and effectively and as I said he is well regarded by those he has come in contact with. It is on the strength of, rather than just his say so, his actions in acquiring the various qualifications he has and demonstrating his positive qualities to Corrective Services Officers that I am prepared to making a finding that he has prospects of rehabilitation. They are good prospects. And that he is deserving of an extended period of supervision reflecting the existing special circumstances pursuant to s 44 of the Act.
He requires, in my view, an adjustment of the relationship of the non‑parole period to the balance of sentence to permit an extended period of time under supervision to adjust to community living, to receive guidance and counselling in relation to his financial affairs and his employment. And perhaps in relation to his drug issues. He is not a person who is regarded as being a difficult custodial inmate in respect of the use or abuse of drugs.
However, to get to the nitty gritty of the psychologist's report, there has been some testing done. The prisoner, on the tests done by the psychologist, reflects a very high level of anxiety and depression on her testing. This does not seem to have found its way through to his behaviour or his capacity to comply with the directions of Corrective Services staff.
So far as his personality and self-perception and the like, his profile is said to be usually found in individuals who are aware of their shortcomings but who want to appear publicly acceptable. Although this is a healthy combination, it is said the "test results" may be "quite overly positive". Ultimately in the context of all the material available including the results of testing and third party information, which included many of the case notes, as well as the written reference to which I have referred, the assessment revealed, despite some problems in relation to the prisoner's background that he is not a person who has a significant mental impairment or psychiatric or psychological condition. He has had difficulty in his life leading to drug use, he has had difficulties maintaining "self-employment" and a lack of "self‑insight and vocational means" has affected his lifestyle.
It is said that since returning to gaol in 2016, he has demonstrated some insight in relation to the "psychological factors" which contributed to his reoffending. What he claimed to be his inability to be assertive, his desire to feel connected and what is described as "inquisitiveness" associated with making up for lost time.
He expressed remorse to the psychologist as he has to me in the letter that he has written to the Court. He has expressed that to the religious officer or chaplain that prepared the positive report for him and also, in an implied way, it is reflected in the reference of the Corrective Services "Assessment and Planning Officer".
If I might interpose for a moment, I reiterate, that part of the mitigating factors I have taken into account is that I am prepared to accept the prisoner as relevantly "remorseful". Although it is not a strong mitigating factor as there are degrees of remorse. However, the psychologist's report, which is obviously limited in its capacity to diagnose, mainly reflects upon current depressive symptomology and as I said while accepting that that may exist and accepting that as a matter that will be addressed or need to be addressed whilst in custody and on release, there is nothing here that represents any sort of analysis. Certainty far less than a diagnosis of a mental illness or disability is irrelevant in the way in which those matters are discussed in decisions such as DPP v De La Rosa [2010] NSWCCA 194, particularly at [177]-[178].
I should note in relation to the prisoner's history as it reflects upon what the psychological report actually concludes, that the prisoner has no history of significant treatment for mental health issues. He has consulted mental health professionals in relation to court proceedings. There was an assessment made of him for the court. He also saw another psychologist whilst he was in custody on this occasion in 2018. But there is nothing in the material nor has any material been produced independently of this report to show any course of treatment or use of opportunities to address mental health issues.
I have already noted a reference from an employer for a period of employment between 2013 and February 2015. I note in relation to that report that the prisoner has an offer of employment on his release from custody if he chooses to take it.
In the context of all this evidence I have had regard to all the submissions that have been made. In the fact finding, I have had regard to what was said, to the limited extent that it could assist me, in the decision of Chen [2010] NSWCCA 224 and the particular paragraphs I was drawn to. That case does not set down any particular principle. It just merely reflects upon a process of fact finding which I am prepared to accept is open and I have certainly not found any facts adverse to the prisoner in the context of what might be gleaned from that particular judgment.
I have taken into account all that has been said about the prisoner's role and the facts of the matter for the purposes of sentencing. What has been put about the relevance of his subjective case, the fixing of non‑parole periods, considerations of matters arising under s 21A of the Act, of parity and proportionality and "relativity".
As I said, whilst it is posited that there may be some possible reflection of some depressive symptoms at the time of the offending, that reflection by the psychologist is not sufficient in the absence of independent evidence from the prisoner to warrant a conclusion that there is a relevant mental illness or mental disability casually connected with the offending.
There is one other matter that I note. I referred to the prisoner's studies whilst in custody. I should give them a particular credit; I have noted them in passing. They have, as I have mentioned earlier, a role to play in the determination of the non‑parole period, particularly in this matter.
One last matter that is reflected upon in the history of the prisoner. He notes in growing up some unpleasant experiences, racial bullying and like, at school. But there is nothing in the psychologist report that suggests any significant reflection of causation with the offending with which I am concerned.
So far as the Crown's submissions are concerned, likewise I have taken all those matters raised by the Crown into account as self‑evident. So far as the Crown's submission in relation to the issues arising under s 3A of the Act, clearly given the character of the offending, particularly the principal offence and the connected offences, there is a need for weight to be given to general and personal deterrence. It might be thought I should give greater weight to personal deterrence given the previous term of imprisonment but I believe that is not necessary as such. But there is weight to be given to general deterrence and all the other factors that arise as 'purposes of sentencing' pursuant to s 3A. Not the least is the promotion of the rehabilitation of the prisoner.
I should note, of course, he is a mature man. He comes forward for sentence before me in the context of a previous conviction which I have noted as a man who turned 40 in September this year. Although he was, of course, three and half years younger when he committed the crime or crimes with which I am concerned.
I must say the delay in dealing with this matter is a complete disgrace. I have not made any comment about that adverse to the prisoner. I believe the prisoner is partially at fault for this, I hasten to say, but I have not determined that there is any penalty or additional penalty that can be imposed on the prisoner. But in my view, from the perspective of a judge working very hard in this court on a daily basis, to have someone come forward for sentence three and a half years after they have been charged is a complete and utter scandal. And if the prisoner is frustrated or whatever ultimately as to the outcome of the proceedings or frustrated at awaiting his fate, with respect to him and everybody associated with the conduct of his case, the matter is not helped by the delay in the matter coming to court.
Certainly it is not the Court's fault that the matter is delayed. I do not know so much about the delay from moving the matter from the Local Court to the District Court. But this matter could have been dealt with by me last year. There was a change of legal representation. I should note by reference to the judgment in Tannous, that I actually suggested at one point that Mr Tannous' matter be adjourned to be linked with Mr Nguyen's. I am glad I did not do that now because he would still be awaiting the outcome of his matter.
I am not saying there has been any tactical advantage sought to be had by this. As I said I am not taking it into account as a matter adverse to the prisoner. In fact one thing that might be said favourable to the prisoner, in the context of the decision of R v Todd [1982] 2 NSWLR 517, a decision of the New South Wales Court of Criminal Appeal from 1979 but reported in 1982, is that when there is some delay in dealing with the prisoner, it does sometimes provide an opportunity to have a better view of the prospects of rehabilitation of an offender.
Todd was a special case, of course, involving a man who spent many years in gaol in Queensland for a range of crimes contemporaneous with similar crimes in New South Wales that he was finally brought back to New South Wales to be sentenced for many years after the event. But anyway delays are a matter of some relevance in this sentencing exercise and I have taken it into account to some extent, perhaps favourably to the prisoner.
But again, as I have said, it has to be said publicly, what an outrage that someone comes for sentence three and half years after they are charged. It is an embarrassment, not to me, but it is an embarrassment to somebody or some people and it really should not be tolerated by the Court. But what can you do when people tell you they are not ready to proceed or they change their legal representatives. Justice delayed is justice denied. That is the truth of the matter.
It seems to me with respect that it would have been much better if this prisoner and Mr Tannous could have been sentenced together, the evidence available to Mr Tannous would have been able to be cross‑examined upon by Mr Nguyen's legal representatives. If I believe the evidence was truthful, that might have worked adversely to Mr Nguyen's circumstances, more adversely than any circumstances now. But as it turned out it did not happen. It is not good enough to simply say the same judge should deal with it. The same judge should deal with these same matters at the same time. That is my opinion but that is not the way it worked out. And I do not, as I say, find that as a black mark against Mr Nguyen.
Thus, Mr Nguyen I am going to pronounce the sentence. There are many matters that I have to take into account as you probably understood from what I have said. In relation to these matters pursuant to s 53A Crimes (Sentencing Procedure Act) 1999, you are convicted of all principal offences and sentenced to an aggregate sentence of ten years imprisonment. That will commence on 14 April 2016 and expire on 13 April 2026 with a non‑parole period of six years, six months expiring on 13 October 2022.
The indicative sentences firstly in relation to count 1, the manufacture large commercial quantity of prohibited drug taking into account all matters on the Form 1, nine years imprisonment with a non‑parole period of six years imprisonment.
In relation to count 2, the recklessly deal with proceeds of crime matter involving the $4,500 you are sentenced to 12 months imprisonment.
In relation to count 3, the recklessly deal with proceeds of crime offence involving the Rolex watch you are sentenced to two years three months imprisonment.
In relation to count 4, recklessly dealing with proceeds of crime, to wit the sum of 600 odd dollars, you are sentenced to nine months imprisonment or that is the indicative sentence I impose.
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Decision last updated: 10 June 2020
Aggregate sentence of 10 years imprisonment commencing 14 April 2016, expiring 13 April 2026, with non-parole period of 6 years 6 months expiring 13 October 2022. Indicative sentences: count 1 (manufacture) 9 years with 6 year non-parole period; count 2 ($4,500) 12 months; count 3 (Rolex) 2 years 3 months; count 4 ($600.70) 9 months.