R v Nguyen and Tran

District Court of NSW|2021-06-28|Before: Mr P

remarks on sentence

The offenders Mr Hung Nguyen and Mr Van Tran are for sentence today in relation to offences involving methylamphetamine.
Mr Nguyen is to be sentenced in relation to two offences as follows. Firstly, an offence of supplying a commercial quantity of methylamphetamine, namely, 408 grams. The maximum penalty for that offence is 20 years imprisonment and a standard non-parole period of ten years is specified. Secondly, an offence of manufacturing not less than the large commercial quantity of methylamphetamine, namely, 4,803 grams. The maximum penalty for that offence is life imprisonment and a standard non parole period of 15 years is specified.
In the case of Mr Tran, he is to be sentenced for a single offence, namely, manufacturing not less than the large commercial quantity of methylamphetamine, namely, 4,803 grams. The maximum penalty for that offence, as I have already said, is life imprisonment and it attracts a standard non-parole period of 15 years.
In addition, Mr Tran asks that in sentencing him for that offence the Court take into account, on a Form 1 document, an additional offence of supplying 408 grams of methylamphetamine being not less than the commercial quantity.
The maximum penalties and the standard non-parole periods represent important guideposts in the sentencing exercise to which I have regard.
Mr Tran entered a plea of guilty immediately prior to the commencement of his scheduled trial and he is therefore entitled to a discount of 5% by reason of that plea. Mr Nguyen was convicted by a jury after a defended trial and so no discount for any plea of guilty applies in his case.

OBJECTIVE SERIOUSNESS

It is important that I make an assessment of the objective seriousness of each of the offences to determine where, on a notional scale of seriousness, they lie when compared with other cases or theoretical cases.
Objectively these drug offences are very serious having regard, firstly, to the maximum penalties and standard non-parole periods that are specified. However, in assessing the objective seriousness it is important that I make some determination as to what role the offenders played in the offences, in other words, what they did. This is not an easy process given that, as is the case with many drug offences, the precise role performed by each of the offenders is not clearly defined by the evidence.
There is no doubt that this was a sophisticated and apparently successful operation which was capable of, and had in fact produced, a substantial quantity of illicit drugs. It was also set up in the middle of a residential area with the obvious risks to others that that involved. However, I accept that neither of these offenders were principals and there is no suggestion that they were directly involved in the initial set up or financing of the drug laboratory.
In relation to Mr Nguyen there is no direct evidence as to what act he performed in relation to either offence. The evidence clearly establishes, however, that on 24 January 2019 he attended the lab just after 5pm and remained there until police entered at 9pm, during which time part of the drug manufacturing process was being carried out. He had also attended the premises on an earlier occasion, as he admitted in his police record of interview, in which he claimed that he had nothing to do with what was happening in the house.
The most significant evidence in his case, however, is the fact that his DNA was located inside a pair of gloves in one of the bedrooms which was being used in the drug manufacturing process and the fact that his fingerprint was found on a glass scientific flask in the loungeroom.
The drug manufacturing set up in the house was a sophisticated and substantial one in which some person or persons had invested significant time, effort and money. While there's no evidence that Mr Nguyen was a principal, I am satisfied, based on his attendance at the house and the presence of his DNA and fingerprints on items associated with the drug manufacture, that he had performed some role, presumably at the direction of others, in the operation.
While there is no evidence as to what benefit Mr Nguyen received or expected to receive, I have no doubt that his involvement was motivated by an expectation of some material benefit, whether that be in the form of some sort of financial benefit or the easy supply of drugs.
On the evidence available, however, I am unable to conclude that he had anything more than a limited role. I assess the manufacture offence in his case as falling comfortably below the mid-range and towards the lower end of objective seriousness for offences of this kind.
In relation to the supply offence for which Mr Nguyen is also to be sentenced, which involved the deemed supply of 408 grams of methamphetamine found at the house, I am similarly unable to make any specific finding as to Mr Nguyen's role with respect to this offence. It is an agreed fact, however, and consistent with the jury verdict, that this methamphetamine was in the joint possession of Mr Nguyen and the others who were in the house.
Again, I accept Mr Nguyen was not a principal with respect to this offence but had some limited role in which he was subject to the direction of others. Nonetheless, the quantity of drug was significant as was its purity. I assess the supply offence, having regard to Mr Nguyen's limited role, as being towards the lower end of objective seriousness.
Turning to Mr Tran's offence and its objective seriousness, similarly to Mr Nguyen, there is no direct evidence as to precisely what role Mr Tran performed in relation either to the offence for which he is to be sentenced or as to the matter on the Form 1 document. However, it is an agreed fact that over a period of about four months Mr Tran purchased substantial quantities of caustic soda, methylated spirits and other substances associated with the drug manufacturing and also that, on the day of his arrest, he had bought four litres of Xylene which he transported to the premises. There was no sophistication in these purchases, for which Mr Tran used credit cards easily linked to him.
In addition, his fingerprints and/or his DNA were located on various items in the house, including gloves and a face mask. In his evidence Mr Tran said that the offender, Mr Ly, used to supply him with drugs and in return he would buy the chemicals as instructed by Mr Ly. As to the presence of his DNA on a breathing mask and inside gloves, he denied that this was because he had engaged in acts associated with the manufacturing process and claimed in his evidence before me on sentence that he had perhaps put on a breathing mask while sitting in the loungeroom due to the fumes and that he had used gloves each time he brought caustic soda to the house by opening the container to "see if it was the right one".
In my view this evidence is implausible and I do not accept it. This was not the type of house where a person would simply pop in for a cup of tea. It was clearly a devoted drug laboratory and that fact would have been immediately obvious to anybody as soon as they entered the house.
I am satisfied that Mr Tran's DNA was found on these items because at some stage he did perform some physical role with respect to processes involved in the drug manufacture, although I am unable to reach any more specific conclusion than this.
While there is no evidence that Mr Tran was a principal, he clearly performed an important and active role in the drug manufacturing process, particularly by reason of the purchase and delivery of important chemicals. While there is no evidence as to what benefit he received or expected to receive, I have no doubt that his involvement was motivated by an expectation of receiving some material benefit, presumably from persons more senior than himself. Whether that was a benefit in the form of money or whether it was the easy access to drugs, I am unable to say.
I assess the manufacturing offence in his case as being above the lower end and closer to, but below, the midrange of objective seriousness.

SUBJECTIVE MATTERS

Turning to subjective matters. Mr Nguyen's subjective case has been placed before the Court by means of a psychological report and a sentencing assessment report. He is 40 years of age and was born in Vietnam during the latter stages of the war in that country. He told the psychologist that his father who had served in the army, presumably the South Vietnamese Army, was subsequently captured, incarcerated and tortured by the Communist regime and died when the offender was about 14 years old.
He told the psychologist that when he himself was about 16 years old he tried to escape Vietnam but was captured and imprisoned for about two months but that about a year later when he was 17 he managed to escape to Malaysia where he lived in a refugee camp for two years.
Although I have limited details about the offender's early life, I accept that it did involve significant adversity and trauma which I have taken into account as part of his general background.
He reports having been sponsored to Australia when he was about 19 years old, where he initially lived with a brother and cousin. In Australia Mr Nguyen has been engaged in regular employment such that he was able to buy his own home. He married at age 23 and there are two adult children from this marriage which ended when the offender was about 30 years old. He reports having been depressed following the breakup of his marriage and that in this context his gambling and use of drugs significantly increased, especially from 2013 when he was introduced to the drug ice which he eventually started using on a daily basis.
Since being in custody he has completed the Remand Addictions Programme, which is a positive step towards his rehabilitation. He has a limited criminal history although, significantly, that history includes an offence in 2006 involving the importation of a marketable quantity of border controlled drugs, for which he received a prison sentence of six years, ten months, with a non-parole period of four years, pursuant to which he was released on parole on 5 October 2010. He told the psychologist that this offence arose in the context of his being pressured into acting as a drug mule after incurring gambling debts.
Furthermore, in December 2018, only about a month before the offences now before the Court, he was placed on a Conditional Release Order without conviction for an offence of driving with an illicit drug in his system.
Mr Nguyen still maintains his innocence. There is no remorse to be taken into account. The Sentencing Assessment Report assesses him as a medium risk of reoffending, although it also notes that he is motivated to avoid further offending by returning to employment and addressing his drug problem. As also noted in the report, Mr Nguyen intends on his release to return to the home he owns in Hinchinbrook where he expects to reside alone. The fact that he has his own residence and an expressed intention of returning to employment are positive matters. However, I am unable to conclude that his prospects of rehabilitation are anything other than guarded but reasonable.
The subjective case for Mr Tran has been placed before the Court by means on his evidence on oath, a Sentencing Assessment Report, and a number of character references. He is 37 years of age and was born in Vietnam, although he left Vietnam by boat with his parents when he was about five years old.
After this he spent two to three years in a Malaysian refugee camp where he said the conditions were very poor, and after this, he and his family came to Geraldton in Western Australia where they stayed for another two to three years before settling in Cabramatta in Sydney. Mr Tran apparently dropped out of school in year 11 and did little for a few years but later worked in a factory until around age 21 when he commenced work in tiling.
He described a drug habit from around age 22 involving MDMA, heroin and cannabis and although he stopped using drugs for perhaps three to four years while in his former marriage, he started using drugs again in around 2017, mainly methamphetamine in the form of ice.
At the time of his arrest he owned his own tiling business in which he worked with his brother but, at the same time, apparently he was a fairly regular user of methamphetamine which he was obtaining, he said, from Mr Ly, who he met through family. When recalling this history to the author of the Sentence Assessment Report he attributed his increased drug taking to the breakdown of his marriage and disconnection with family.
Mr Tran's referees speak highly of him and confirm that he has struggled in recent times by reason of the breakdown of his marriage. They also confirm that he has employment arranged as a tiler once he is released. The referees also refer to some degree of remorse in Mr Tran. However, this needs to be taken into account against the contents of the Sentence Assessment Report and the offender's evidence on oath which suggest a tendency to minimise the offending. In my opinion there is little if any remorse demonstrated in his case.
The Sentence Assessment Report refers to a medium risk of reoffending, given Mr Tran's moderate criminal history which relates mainly to drug matters. It is positive that Mr Tran has work available to him on release, has some support from family, and also that he apparently remained drug and offence free during the period he was on bail for these offences. On balance I regard his prospects as guarded but reasonable.

PARITY

An important matter to which I must have regard is the question of parity of sentence. In other words, the importance of ensuring that the sentences imposed on Mr Tran and Mr Nguyen are fair and appropriate so as not to create a justifiable sense of grievance when compared with each other and when compared with those imposed on Mr Trin and Mr Ly.
Those two offenders, Mr Trinh and Mr Ly, were sentenced by Hanley DCJ SC, after entering pleas of guilty, for which they received a 25% discount. Mr Trinh was sentenced in relation to an offence of knowingly take part in the manufacture of a large commercial quantity of methamphetamine for a head sentence of four years with a non-parole period of two years, three months.
Mr Ly was sentenced in relation to an offence of manufacturing a large commercial quantity of methamphetamine, taking into account a further offence of supply commercial quantity, that being the 408 grams of methamphetamine, to a head sentence of five years with a non-parole period of three years.
I note firstly, that those two offenders received a benefit from the fact that at the time of their pleas of guilty the quantity of methamphetamine calculated to have been manufactured was only 1.8 kilograms, whereas subsequent more accurate calculations reached the conclusion that the quantity was in fact 4.8 kilograms. While this does not change the nature of the offence, with both quantities being well above large commercial, it does mean that Mr Nguyen and Mr Tran face sentence in relation to a quantity substantially greater than that for which Mr Ly and Mr Trinh were sentenced.
I have had regard to this, both in assessing the objective seriousness of the offending of Mr Nguyen and Mr Tran and also in determining the appropriate sentences. As has been said by the Courts many times, the quantity of drugs involved in an offence is an important factor but it is by no means the most important factor. Rather, it is just one of a number of matters that I must and have taken into account.
As I have already noted, Mr Trinh and Mr Ly received the benefit of a 25% discount because of their early pleas of guilty. By contrast, Mr Nguyen is entitled to no discount and Mr Tran is entitled only to a 5% discount by reason of the lateness of his plea. Furthermore, both Mr Trinh and Mr Ly have the benefit of findings by Hanley DCJ SC of some remorse, whereas I have found none in the case of Mr Nguyen and little in the case of Mr Tran.
In the case of Mr Trinh, Hanley DCJ SC found significant mental health issues which his Honour was satisfied would make custody more onerous and which reduced the need for general deterrence. In the case of Mr Ly, Judge Hanley referred extensively to the extreme hardship and trauma associated with his early life, accepted that this impacted on his mental health, contributed significantly to his drug and gambling problems, and reduced to some degree his moral culpability.
While I have accepted that Mr Nguyen and Mr Tran also suffered significant hardship and likely trauma at a young age, the magnitude of those factors in Mr Ly's case appear to have been significantly greater than in the case of Mr Nguyen or Mr Tran.
There are of course other differences between the cases of Mr Nguyen and Mr Tran and those concerning Mr Trinh and Mr Ly, especially in relation to subjective matters which I do not intend to list in detail. Suffice to say that I have given careful consideration to the remarks on sentence by Judge Hanley SC in those two matters and have done my best to avoid imposing sentences on Mr Nguyen and Mr Tran which might create a justifiable sense of grievance in relation to any of the four offenders.
The four year head sentence imposed on Mr Trinh appears to have involved a starting point, before the 25% discount, of five years, four months. The five year head sentence imposed in respect of Mr Ly involved a starting point before the 25% discount of six years, eight months.
On my assessment of the facts, the role played by Mr Nguyen is more akin to that played by Mr Trinh than it is to that played by Mr Ly who was more substantially involved and held a more senior and trusted position. Mr Tran's role as the purchaser of important chemicals lies somewhere above that of Mr Nguyen and Mr Trinh but somewhat below that of Mr Ly.
Mr Nguyen is to be sentenced for two offences, manufacturing and supply, whereas Mr Tran is to be sentenced for only the manufacture offence, although with the second offence of supply on a Form 1 document. While the supply matter involves a discrete offence, it is apparent that the 408 grams of methamphetamine that is the subject of this offence was part of the harvest from the manufacturing process in which all offenders were involved.
In those circumstances, in Mr Nguyen's case, it seems appropriate for there to be some degree of accumulation but in my assessment that accumulation ought not be great.
In Mr Tran's case, where the supply offence is on a Form 1 document, it should have some, although limited, upward impact on the sentence imposed for the principal offence.
I have had regard, in determining the sentences, to s 3A of the Crimes (Sentencing Procedure) Act 1999 including all of the matters referred to in that section which of course include the need for both personal and general deterrence but also the various other matters referred to in that section. I am satisfied in each case that no penalty other than one of fulltime imprisonment is appropriate.
I have had regard to the standard non-parole periods that are specified but I do not intend to impose them in either case, given my assessment of the objective seriousness of the various offences to which I have referred, and also, given the parity considerations.
I intend and have made a finding of special circumstances in relation to Mr Tran based on this being his first period in custody and on the need for an extended period of supervision once he is released, especially given his drug history.
I also intend and have made a finding of special circumstances in relation to Mr Nguyen but to a lesser degree, given that this is not his first custody, but I do accept that there is a need for an extended period of supervision in his case, given his history which has involved some drug abuse problems.
I have had regard, in relation to Mr Nguyen, to principles of totality, given that I am imposing a sentence for two offences and in that regard I note that I intend to impose an aggregate sentence in Mr Nguyen's case.

DETERMINATION

Given my intention to impose an aggregate sentence it is necessary that I specify the indicative sentences, that is, those that I would have imposed had I not imposed an aggregate sentence.
Mr Nguyen, the sentences I am about to refer to are not the sentence that you will serve. These are what are called, indicative sentences. The actual sentence I will announce clearly at the end.
The indicative sentences in relation to Mr Nguyen are as follows.
For the manufacture offence a head sentence of five years, four months with a non-parole period of three years, eight months.
For the supply offence, a head sentence of three years with a non-parole period of two years, one month.
Instead of those, I impose an aggregate sentence in relation to Mr Nguyen of five years, ten months with a non-parole period of four years. That sentence will date from 24 January 2019. The head sentence therefore will expire on 23 November 2024 and the non-parole period will expire on 23 January 2023.
In Mr Tran's case, taking into account the matter on the Form 1 and after the 5% plea of guilty discount, I impose a head sentence of five years, eight months with a non-parole period of three years, four months.
I note that Mr Tran has been in custody from 24 January 2019 until 13 May 2020 and then from 16 March 2021 until today 28 June 2021, which on my calculations amounts to a total of 579 days which I intend to treat as 580 days.
Based on those calculations his sentence will date from 26 November 2019. His head sentence will expire on 25 July 2025 and the non-parole period will expire on 25 March 2023.
SEGAL: Your Honour adverted to Mr Nguyen having done the Remand Addictions programme. I understood I heard from certain proceedings a document from Corrective Services was sent by my instructing solicitors to the Court. May I ask did that find its way to your Honour's documentation?
HIS HONOUR: Yes it did and that's why I reflected in my remarks that he had completed that course.
SEGAL: Yes, I understood that your Honour, but may we have leave to tender that on sentence?
HIS HONOUR: I've already received it so if I need to give leave I give it but I've already received it, read it, taken it into account.
SEGAL: Yes, nothing further comes to mind your Honour.
HIS HONOUR: Thank you. Mr Bye do you have anything to raise? Is it necessary, does anybody ask me to have the sentence actually translated to each of the offenders or was it sufficiently understood?
SEGAL: I wonder, through you your Honour, I can see my client on the screen. May I, through you, ask him. Do you Mr Nguyen understand the sentence? Could you nod yes if, yes.
OFFENDER NGUYEN: Not yet. Can you get translator for me please.
HIS HONOUR: All right, what I'll do is I'll ask Mr Ho to come forward to the witness box. Thanks Mr Ho.
MR HO, AFFIRMED TO INTERPRET THE VIETNAMESE LANGUAGE
HIS HONOUR: Yes, thank you. Can I just ask you to interpret this for Mr Nguyen.
INTERPRETER: I will help Nguyen.
HIS HONOUR: The sentence is an aggregate sentence--
OFFENDER NGUYEN: Yeah.
HIS HONOUR: --which is a head sentence of five years, ten months, with a non-parole period of four years. That sentence will date from 24 January 2019. The head sentence will expire on 23 November 2024 and on 23 January 2023 Mr Nguyen will be eligible for consideration of release to parole.
Thank you Mr Nguyen.
In relation to Mr Tran, the sentence, after the discount of 5%, is a head sentence of five years, eight months, with a non-parole period of three years, four months. The sentence will date from 26 November 2019. The head sentence will expire 25 July 2025 and on 25 March 2023 Mr Tran will be eligible for consideration of release to parole.
Thank you Mr Ho.
INTERPRETER: Thank you.
HIS HONOUR: So we'll disconnect from Long Bay Hospital.

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