R v Nguyen

Agreed Facts

1. There are Agreed Facts before the Court. I sentence according to those facts. There are other matters that will, and should, be taken into account. I am not bound to accept every statement made, particularly where the material cannot be supported by sworn evidence or where it engenders a degree of scepticism. The rules of evidence do not apply to sentencing proceedings. Judges are entitled to take into account and synthesise all relevant factors proved, matters in mitigation to the balance of probability standard, matters in aggravation to the beyond reasonable doubt standard. Sometimes, as here, some facts are simply not known, and the Court does its best with the available material: The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270; Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 at [18]-[24].
2. Nguyen was arrested on 13 September 2022 when police went to his and his mother's home in Kiama. They went there to follow up earlier convictions for firearms offences. A valid and proper enquiry needed to be made. At the relevant time, Nguyen was subject to parole. He had been released to parole on 17 February 2022.
3. When police attended, they indicated that they intended to inspect the premises for the purpose of their duties under the firearms legislation. When asked if there was anything present that should not be in the house, Nguyen immediately said, "I got drugs".
4. They asked him how much and he said, "a bit". He told the police that the drugs were methylamphetamine. He showed the police around his premises. They found quantities of crystalised substances which they correctly presumed were methylamphetamine. In total, just over a kilogram of methylamphetamine was located in a wardrobe in the offender's bedroom. That amount, together with what else was found, formed the basis for the charge for sentence, Manufacture Large Commercial Quantity of Prohibited Drug.
5. The offender was arrested. The police applied for a crime scene warrant. Later examination of the premises by a forensic team, indicated that there were chemicals and equipment consistent with the manufacture of prohibited drugs. In the offender's car police also found a small quantity of heroin: Sequence 3, Possess Prohibited Drug.
6. Inside the bonnet of the vehicle was some cannabis and other items associated with drug supply. In the bedroom was found more cannabis which totalled (presumably with the other cannabis) 1.2 kilograms, large quantities of cannabis ultimately. Ultimately,1.2 kilograms of cannabis were found at various locations: Sequence 2.
7. In the offender's garage was a vessel containing liquid. It was a mixture of cannabis oil, methylamphetamine, ethanol and acetone. The cannabis oil found led to a charge of Supplying a Commercial Quantity of that Drug.
8. In the garage were items that could be used for the manufacture of prohibited drugs; trays, jugs, pans, burners, pH metres, tubing, and boxes of resealable bags. There were also some items which led the forensic team to submit that they were indicative of methylamphetamine being manufacture on the premises. So much is accepted.
9. The premises are in a suburban area. There was a childcare centre nearby. The facts reveal that methylamphetamine has a street value of between $7,000 to $13,000 for 28 grams. The methylamphetamine found had a purity between 75% and 78% which had a potential to be cut further. Cannabis oil can be sold for between $10,000 and $14,000 per kilogram. The estimated value here was $7,000 to $10,000, and the cannabis had an estimated value of over $6,000. I have to be very cautious about those figures, but it indicates, as is clear, that this matter had a significant commercial element.
10. When spoken to by police the accused explained he had bought the methylamphetamine for $110,000 and planned to cut it and make a profit by selling it for $150,000 for his upcoming wedding and honeymoon which he had planned for September 2022. He denied any knowledge of notes on his phone which related to manufacture of methylamphetamine. He had a phone that had been encrypted so that any messages on it disappeared.

Objective seriousness

1. Any sentencing exercise requires an assessment of its objective seriousness. The Crown, in their written submissions, say that this matter falls within the middle of the range. Mr Booker, who appears for the offender, said it falls well below middle of the range. In oral submissions, the Crown said this is a substantial offence, a serious offence. Mr Booker, in oral submissions, indicated that it was, relative to many other matters dealt with pursuant to s 24(2) Drug Misuse and Trafficking Act 1985 (NSW), relatively less serious. His submission "not serious" was in the context of s 24(2) offences, he was not submitting that this was not a serious offence.
2. Where there is a difference of opinion as to where, on some notional scale events occur, judges are obliged, if they can, to rule on that as issues in dispute: Owen v R [2022] NSWCCA 214. I have, as judges of the Court of Criminal Appeal have recognised, some difficulty with that: Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162 at [88]; Paterson v R [2021] NSWCCA 273 at [32]-[33]; KM v R [2023] NSWCCA 10 at [52]; Decision restricted [2022] NSWCCA 246.
3. What I prefer to do is consider the seriousness of what was done and make an evaluation of it. There is no doubt that this was serious criminal offending. It falls within, as I have indicated, matters covered by a maximum penalty of life imprisonment and a standard minimum of 15 years. The offence of manufacture involved more than, on all the material before me, Nguyen simply buying drugs, packaging them for future sale. There was a process of manufacture engaged in. The equipment was there to be used.
4. It is hard for me to discern exactly what occurred because there is no evidence as to what occurred at the home and in the garage. Something was also happening with the cannabis oil; but he is only charged with the oil content of those containers. It is not clear to me exactly what process was undertaken.
5. The offender told his psychologist he was intending to "flip" the drugs, but there is nothing before me to indicate what he meant by that word. What is clear is that he had obtained methylamphetamine with the intention of processing it and then moving it on to someone else, whether it be ultimate users or another dealer; intending that it be supplied, with value added by him so that he could make financial gain. His sole reason for engaging in this offence was commercial.
6. So far as the cannabis leaf and the cannabis oil are concerned, I am not sentencing for those matters, but they do indicate that he was processing the oil to some degree. He had the cannabis leaf where it was readily available for sale, all indicating the commercial nature of the operation he was running from his own home.
7. He was not associated directly with other offenders. The amount of methylamphetamine is twice the large commercial quantity, all matters that go to assessing seriousness. A burner was found. There are inherent risks in anyone engaged in manufacture of drugs that involve flames. Methamphetamine manufacture operations have been known to explode. Other criminals sometimes attend such premises and violence can occur. Neighbours can be impacted upon in many, many ways by this process. All matters that are not additional in the sense of extra aggravating factors but matters that have to be taken into account. There is no suggestion of children being exposed to the manufacture process, I make that clear.
8. Here the motivation, the organisation, the intention, indicate that this was, if not a large-scale operation, an operation of some size, but a home based one intended for financial gain. It was relative, to many other matters, not particularly sophisticated and not part of any greater organised criminal activity, and there is no indication that it was part of a larger manufacture and supply operation. Nguyen had not yet realised the profit expected, but that was his intention. It is so serious that an appropriate and lengthy custodial sentence is required. It was not, as suggested, at a low level. I trust these remarks indicate how serious I view it without having to arbitrate further on the distinction made in the submissions before me.

Matters on a Form 1

1. The possession of the heroin, the deem supply charges in relation to cannabis, and the cannabis oil are before me on a Criminal Procedure Act 1986 (NSW) Form 1. I take them into account when I sentence for the principal offence. I do not sentence for those matters. It is appropriate I take them into account in accordance with the guideline judgment: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [39]-[42]. They go to issues such as personal deterrence and retribution for the crime for sentence.
2. The Crown, in written submissions, state that they require some modest increase in sentence. I accept that submission. But the heroin charge would not ordinarily have resulted in a custodial sentence, and I do not increase the sentence because of it. If it had been charged separately it would have been dealt with pursuant to s 10A Crimes (Sentencing Procedure) Act 1999. However, the supply matters, given the history of this offender, would, if dealt with separately, have required custodial penalties. It is appropriate that they be taken into account to increase the sentence for the matter before me.
3. The sentence I impose is further aggravated, that is, subject to further increase, because it was committed while the offender was subject to conditional liberty. He made a promise when he was granted parole to be of good behaviour. He broke that promise.

Drug use

1. Nguyen is a drug user. At times he has been a very heavy drug user. He has been addicted to illicit drugs, it would appear primarily heroin, since he was in his teens. He was open and frank with his parole officer, telling him that he was still using at the time of the commission of this offence.
2. He is no stranger to gaol. Sadly, he is no stranger to me. I sentenced him in 2015 for a Manufacture offence, Possession of drugs, Manufacture Apparatus and Possession of Prohibited Drug: R v Nguyen (District Court (NSW), 7 August 2015, unrep). In 2015, I heard evidence from him and heard evidence about his background. I concluded my judgment by saying: "I am prepared to accept that while in custody Mr Nguyen has very solid goals, [but] he has to have hanging over him a sentence which brings home to him the need to change his ways because if he does not heavier and heavier sentences will be imposed upon him."
3. He was also sentenced by Judge Norrish KC in 2013: R v Nguyen (District Court (NSW),15 March 2013 unrep). I found, as did Judge Norrish, that he was candid, frank, intelligent and cooperative. But open and frank as he is, his history indicates that there are still things he does not say. His frankness has only gone so far.
4. Here, for example, Nguyen said he spent $110,000 on the drugs. He expected to make a profit to pay for his wedding. But as the Crown pointed out in submissions today, if he had access to those funds he could have well and truly paid for a wedding, without engaging in criminal activity.
5. He told his psychologist and said he wanted funds to set himself up for the future. I am quite sure that was his intention. Whether the dugs in possession were intended as he said to be a one-off transaction, or not, I do not know. I sentence on what is known. He was caught engaging in serious crime with serious potential consequences; a crime which requires significant punishment.

Subjective case

1. Nguyen spoke at length to, and was examined by, a psychologist, Dr Thomas Dornan, whose report is before me. What was set out in that report was not supported by sworn evidence. Reasonable minds may disagree about what weight should be given to matters where the Evidence Act 1995 (NSW) does not apply. Most sentencing proceedings do not involve a general joinder of issues or the calling of evidence and testing of reports such as this. But where asserted facts are controverted, a judge does not have to act on them.
2. I am prepared to accept the professional opinions of Dr Dornan. I take into account his clinical experience in taking histories and assessing their significance. But it needs to be said that some of the matters raised by Nguyen while apparently frank, and I presume honest, were told by someone who keeps things to himself. In many ways that is understandable. Nguyen has been associated with gaols and criminal gangs since he was a teenager. There are some things I am sure he does not wish to reveal, given that he is now back in gaol.
3. He apparently has good insight, but that insight has in the past not led to changes of behaviour. As Mr Booker pointed out, over the last 14 years, 75% of that period has been spent in custody. He is now facing an even longer period in custody.
4. He first went to gaol in 2010, since that time, he has been involved in dishonesty, supply, manufacture, and other offences, all associated with his long-term drug use. It is not suggested that his drug use contributed to the commission of this offence, but it has contributed to his life in a general way. It is a problem that needs to be dealt with. He chose to engage himself for his own selfish reasons in what was the manufacture of a notoriously damaging drug.
5. The one significant difference between material before me on the last occasion and what is set out in Dr Dornan's report is that the offender disclosed to Dr Dornan that as a child he was sexually assaulted by a teacher. The teacher had initially gained his trust by taking advantage of the fact that he had been bullied and was struggling with the transition from Vietnam to Australia. He had arrived here with little English. He was living then with his mother who had separated from his father, and she was working as hard as she could to provide for her family.
6. The sexual abuse was not disclosed in previous court proceedings, or to anyone else, as far as I can determine. Dr Dornan carefully sets out why a person who is subject as a child to sexual abuse, and then resorts to maladaptive drug use to help cope with the trauma, might not disclose.
7. In the absence of sworn evidence courts are entitled to be sceptical. But Dr Dornan is a trained professional and I am sure shared that scepticism. He carefully sets out the potential impacts of childhood trauma and indicates that they seem to match the history of this man's childhood and interaction with the criminal justice system. That history is objectively verifiable.
8. There is also a diagnosis of Attention Deficit Disorder which Dr Dornan indicates can often occur and be misdiagnosed when a child has been sexually assaulted. There is evidence of Post-Traumatic Stress Disorder. There is evidence of the early uptake of illicit drugs. Although his mother clearly cared for him as a young man, he was left often unsupervised in Cabramatta; where he fell in with antisocial groups.
9. He has never had a job in the community. He suffered after the death of friends. It appears that as a teenager illicit drug use became chronic. His associations with drugs and antisocial groups took over and became his life.
10. He appears to cope in custody. He is aware of, and adheres to, gaol's routines and rituals. He has no infringements on his record, but again an example of his frankness, he conceded he does use illicit drugs occasionally. He has been prescribed antidepressant medication.
11. His mother is now older and unwell. He is not there to support her. He has no community ties. Any ties he has appear to be with criminal associates. During his last time in the community, he met a young woman. But his own actions appear to have put an end to that relationship.
12. Dr Dornan, in his conclusion, indicates that this history has led to cognitive distortions, depression, hypervigilance and what is obviously problematic personality traits. Nguyen is impulsive and self-destructive without direction. While he does appear at times to display insight into his behaviour, he always seems to make the wrong decision.
13. Dr Dornan suggests that Nguyen's drug use and his mental state are causally linked to his sexual abuse, but there are many other factors that must have been operating on him at the relevant time as well. But drugs taken as a maladaptive coping mechanism to trauma had an impact on him.
14. I accept, on balance, Nguyen's his moral culpability is reduced. His background had an impact on him that does not diminish over time and may continue, as Dr Dornan points, for a very long time. Trauma also has an impact on a person's cognition, that is, they fail to think things through.
15. His history will need to be addressed by trauma focused counselling. But trauma specific psychological treatment is unlikely to be provided in custody. Dr Dornan recommends Nguyen engage in intensive drug programs. I am not sure if he qualifies, but he needs programs such as the RUSH and EQUIPS addiction. Dr Dornan also recommends residential drug and alcohol treatment on release. Nguyen will need close parole supervision.

Submissions

1. I have benefited from the oral submissions of Mr Todd, Crown Prosecutor. He spoke to the written submissions provided by a solicitor for the Director of Public Prosecutions Office. Mr Booker spoke to his comprehensive written submissions. While each counsel gave different notional points as to the scale of objective seriousness, neither contested the objective facts upon which I have relied.
2. There are a couple of issues that I need to determine as between the parties.
3. Mr Booker submitted that a finding of special circumstances is required to increase the amount of time Nguyen can be supervised on parole. The primary focus of parole should be to enhance community protection by the rehabilitation of the offender in the community and assisting him in adjusting to normal community life. Mr Todd pointed out that this has been tried and failed on numerous occasions.
4. Mr Booker drew my attention to authorities such as Jinnette v R [2012] NSWCCA 217 at [103]. There it was noted that where, as here, a person is institutionalised it is in the community interest that the offender be supervised and assisted and guided between their release to parole for as long as is practicable. Dr Dornan describes at par 36, Nguyen's "institutionalisation [as] a form of psychological adaption".
5. I will make a modest adjustment in the sentence for special circumstances. The period on parole should allow for adequate supervision. The period in custody must however properly reflect all of the purposes of sentencing, here in particular, given the seriousness of the offence, those that relate to adequate punishment and deterrence. Given Nguyen's past breaches of parole, and the facts of this offence, I can have no particular confidence that he will change; but the effort should be made, and he must be given the opportunity to be supervised and assisted. It appears that Nguyen may, as he ages, develop some insight. That is to his advantage.
6. Mr Booker raised as an whether just locking Mr Nguyen away again will put him in a "warehouse" where nothing much will happen. There may be no change while Nguyen is in custody, but there are programs available to him. To that end a copy of Dr Dornan's report will be provided with the warrant.
7. The term 'warehousing' does not apply here. 'Warehousing' generally occurs when there is no other secure option other than gaol; such as a mental health hospital or drug rehabilitation facility. Mr Booker urged me not to impose a "crushing" sentence; that is not to impose a sentence that would crush all hope for a productive life on release or cause Nguyen to abandon hope and therefore not cooperate with gaol authorities. If that occurred, it would reduce his chance of rehabilitation. Similarly, with institutionalised offenders; the longer they spend in gaol the more they get used to gaol, this then reduces their fear of returning to gaol on release. A sentence should not destroy a person's prospects. An extremely long sentence would be crushing.
8. Another issue of dispute was whether I should accept his expressions of remorse. Those expressions I am sure were heartfelt as they were on the last occasion, but they are not supported by his history. Again, they are examples of him saying one thing and doing another.
9. Mr Booker, in written submissions, submitted that given the time served the non-parole period shouldn't extend well beyond today and that time would be sufficient to meet the minimum purposes of sentencing. For the reasons I hope I have enunciated, the objective seriousness of the offence means that a significantly greater sentence must be imposed.

Synthesis

1. Sentences are not just concerned with an offender's rehabilitation. While Nguyen's subjective case will be taken into account and has moderated the sentence that was otherwise appropriate, his persistent offending requires that greater weight in this sentence be given to specific deterrence. Despite the failure in the past, retribution is also important; the community has to understand that certain offences will be punished severely. Protection of the community is important and that can be achieved temporarily by his removal from the community.
2. A judge has to balance and consider all the purposes of sentencing; here adequate punishment, accountability, denunciation, and recognition of potential harm the manufacture of the drugs could cause the community. He must be removed from the community, as I warned him on the last occasion he appeared before me.
3. Nguyen's rehabilitation is also important. Giving effect to the harsher purposes of sentencing does not mean I don't take into account mitigating factors. They should be synthesised and given weight in the sentencing calculus. I am prepared to accept, because of the traumas he suffered as a child and the maladaptive coping mechanisms that he developed, his moral culpability is not that of a person who did not have his background. Minimising future risk and trying to avoid institutionalisation are important factors, and they will be considered. I have to synthesise all relevant factors. It is not a question of one or the other.
4. A proportionate sentence is required, and what is proportionate or what is seen as 'crushing' can depend upon the perspective of the observer, the offender, the appeal court, or the community: Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301.
5. I will start this sentence from the date he was arrested. The Crown submits to the contrary, but in all the circumstances; taking into account the whole of his history and the amount of time in custody, that it was this offence that led to the breach of parole, and risk of institutionalisation, I will exercise the discretion I am given. The sentence will have a 25% reduction to reflect the early plea of guilty. There is a modest finding of special circumstances. The sentence takes into account the two matters on the Form 1.

Orders

1. The sentence will commence on 13 September 2022. The total sentence is 6 years and 9 months, indicating a starting point of 9 years. The formal orders are:
2. A non-parole period 4 years, 4 months reflecting a modest finding of special circumstances. That will commence on 13 September 2022. Nguyen will be eligible for release to parole on 12 January 2027. The parole period of 2 years and 5 months will expire on 12 June 2029.
3. To reiterate: 6 years 9 months, 4 years 4 months minimum, start 13 September 2022, expire 12 January 2027, non-parole period 2 years 5 months, 12 June 2029 expiry date. Release will be subject to a decision of the State Parole Authority.
4. A copy of Dr Dornan's report to go with the warrant to be sent by the registrar. I will make a drug destruction and drug equipment destructions Order.

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