Mr Hieu Trung is for sentence today on two offences. One being an offence of possess unauthorised prohibited firearm, an offence under s 7(1) of the Firearms Act 1996 which carries a maximum penalty of 14 years imprisonment and a standard non-parole period of four years. In sentencing him for that offence he also asks that I take into account three offences on a Form 1 document.
Secondly, he is for sentence on an offence of supply indictable quantity of heroin, that being an offence under s 25(1) of the Drug Misuse and Trafficking Act 1985 which carries a maximum penalty of 15 years imprisonment.
In addition, there are two offences on a s 166 Criminal Procedure Act 1986 certificate which are related or back up offences that I am asked to deal with under s 167 of that Act but of course subject to the Local Court jurisdictional limit.
The maximum penalties are important guideposts in the sentencing exercise to which I have had regard.
The offender pleaded guilty at the earliest opportunity and he is therefore entitled to a 25% discount by reason of that early plea.
[2]
FACTS
There are two sets of agreed facts for the offences listed for sentence and for those on the Form 1 and s 166 certificate. I intend to describe the facts in chronological order. On 28 October 2020, the offender was driving a black Audi A7 in Cabramatta. Police conducted a search of the car and in the boot they found an extendable baton. Although the offender initially denied any knowledge of the baton, he then stated that he had seen it and perhaps moved it when placing a baby seat in the boot of the car. The offender's possession of this prohibited weapon without permit is the subject of an offence under s 7(1) of the Weapons Prohibition Act 1998 which is to be taken into account on the Form 1 document.
During the police interaction with the offender, they also found $1,960 in cash on his person. He was then taken to Fairfield Police Station where another $1,700 was found in his jacket pocket. Wrapped inside this cash police found a small resealable bag, the contents of which when tested was found to be 0.99 grams of methylamphetamine. A larger bag was also found by police which contained 19.31 grams of dimethyl sulfone which is a common cutting agent.
The offender participated in an interview with police in which he made admissions to being in possession of the methylamphetamine. He said in relation to the baton that he had seen it in the car but claimed he did not know it was an extendable one. The offences of possessing the extendable baton which is a prohibited weapon, possessing .99 grams of methylamphetamine and dealing in property reasonably suspected of being proceeds of crime, namely the $3,660, are to be taken into account on the Form 1 document when sentencing the offender for the Firearms Act offence to which I have made reference already.
The second set of agreed facts describes the following matters. On 8 January 2021, in other words about two and a half months later, police were conducting surveillance outside 53-57 McBurney Road, Cabramatta when they saw the offender's Porsche Cayenne GTS vehicle parked at the rear of the unit complex. Later that day the offender was seen driving the vehicle from the residence and was followed by police before being stopped. Police found the offender to be the only occupant of the Porsche and decided to search it and the offender. He was asked if there were any items he wished to declare and told police that there was a firearm inside a bag in the vehicle. When police searched the Porsche they found a Louis Vuitton bag on the front passenger seat in which there was a silver .32 calibre Walther self-loading pistol concealed inside a sock. The pistol had red electrical tape wrapped around the handle and was found to have six bullets in the magazine. Also inside the bag was a wallet containing multiple ID cards of the offender as well as $9,105 in cash.
Police also found an extendable baton in the door panel of the driver's side. On the back seat they found an egg-shaped toy on top of a child's booster seat. Inside the egg were two resealable bags. The first bag contained a compressed block of white substance as well as a substance wrapped in foil and the second bag contained a loose white substance. When analysed the substances were all found to be heroin with a total weight of 44.92 grams. The offender was arrested and taken to Fairfield Police Station where he declined to be interviewed.
The Walther pistol was examined by police and found to be in working condition with a magazine capable of holding eight cartridges. The six cartridges or bullets which were found inside the pistol were also examined and found to be suitable for firing from the Walther pistol. Those are the agreed facts on which the offender is to be sentenced.
[3]
OBJECTIVE SERIOUSNESS
It is necessary for me to make an assessment of the objective seriousness of the offences for which the offender is to be sentenced. The seriousness of the offences is marked firstly by the significant maximum penalties that apply and also by the standard non-parole period that applies to the firearms offence. However, it is important that I make an assessment of where on a scale the particular offences before the Court lie which in part will be determined by the offender's role.
I consider firstly the objective seriousness of the firearm offence. Firearm possession is a very serious offence as has been acknowledged in the maximum penalty and the standard non-parole period that Parliament has set for such offences. Also, as was said by the Court of Criminal Appeal in R v Farrell [2014] NSWCCA 30:
"Relevant matters to take into account in an assessment of the objective seriousness of the offence will include the nature of the weapon, the circumstances attending the respondent's possession of it, the fact that it was loaded and its identification information had been defaced and that further ammunition was found with it. Obviously relevant as well is the seriousness with which Parliament has indicated that such offences are, given the prescription of a 14 year maximum penalty and a three year standard non-parole period."
I note that the reference to the standard non-parole period in that case was evidently the standard non-parole period that applied at the time of the offence that was being considered in Farrell whereas the standard non-parole period is now one of four years.
Turning then to the objective seriousness of the firearm offence in this particular matter. The agreed statement of facts taken on its own would tend to suggest fairly strongly that the handgun was in fact owned by the offender and that he had it in his possession as a form of protection in the business of possessing and supplying drugs. After all, it was found in his car, a Porsche Cayenne GTS in which there was another weapon, namely the baton and also a quantity of heroin and cash. There is in addition the agreed fact that in October 2020 the offender had also been found in possession of a baton and drugs. As I said, the evidence raises to a high level of suspicion that he had the gun as a form of protection.
However, he has given evidence that he was effectively a courier of the weapon which was being delivered to his "employer". I have significant doubts about the credibility of this story. However, in submissions the Crown indicated that it did not cavil with the offender's claim to being a courier of the gun and of the heroin. In those circumstances and given the evidence on oath of the offender, I cannot be satisfied beyond reasonable doubt that the weapon was owned by the offender or possessed other than for a short period and was being transported to another person. However, this was clearly a lethal and easily concealable weapon which was loaded with ammunition. It was not properly secured and was in the offender's possession in a public place, he having received it in a sock and placed it into the Louis Vuitton bag in his car. I do not consider that there was any real planning or organisation to the offence and the weapon did not display any attempt to erase its identification information.
Having regard to all of these matters, I approach the offence on the basis that the possession of the handgun was fairly brief and that it was in the offender's possession for the purposes of being transported on behalf of another person. I also accept that there is no evidence that the offender intended to use the weapon. Having regard to all of these matters, I regard the offence as being below the mid-range but well above the low range.
I turn then to the objective seriousness of the supply heroin offence. Again, this offence and any offence of drug supply must be regarded as serious. In this case, the charge is based on a deemed supply arising from the quantity rather than an actual supply. The quantity was reasonably substantial at 44.92 grams, which is many times the indictable and trafficable quantities but well short of the commercial quantity which is 250 grams.
While a strong suspicion arises that the offender had the heroin in his possession for the purposes of actual supply, the Crown has, as noted already, effectively accepted that the offence should be approached on the basis that the offender was acting as a courier for another person. There is also the fact that the purity is unknown so I approach the drug on the basis that the purity was not high. While the offender is to be treated as a courier, the courts have said many times that persons who involve themselves in drug trafficking at any level, including couriers, must expect to be dealt with harshly, especially given the need for general and personal deterrence.
I also accept and have taken into account that the offender's possession of the quantity of heroin and therefore his deemed supply of it was carried out for financial gain. However and as has been submitted, that is an inherent aspect of most drug supply offences and so I did not treat that as aggravating the offence to any degree.
Having had regard to all of the circumstances, I assess the objective seriousness as being below the mid-range and towards, although not within the lower range.
As to the offences on the Form 1 and s 166 certificate, it is not necessary for me to make any detailed assessment of their objective seriousness although I note that none of them can be treated as trivial.
In relation to the offences of possessing the two batons, one being on the Form 1 and one being on the s 166 certificate, I do not accept the offender's evidence that these were in the two cars in connection with a fishing expedition. This evidence is simply implausible, especially having regard to the fact that there was a baton and drugs present in each car on both occasions that the offender was arrested. I have no doubt that the batons were rather in the offender's possession for the purposes of personal protection in the course of his involvement, albeit as a courier, in the drug offences that are described in the statement of facts.
The offences of dealing with suspected proceeds of crime which involved his possession of the two amounts of cash are also not trivial as they involve fairly substantial cash sums.
As to the possess methamphetamine which is on the Form 1 document and involved a quantity of only .99 of a gram, it seems to me that that must be regarded as towards the low end of seriousness given the rather small quantity.
While not relevant to the objective seriousness of either of the two offences for which the offender is to be sentenced, his overall criminality is aggravated by reason that all of the offences were committed while he was subject to an Intensive Correction Order. Also, the offences detected on 8 January 2021 were committed while the offender was on bail for the offences he was charged with on 28 October 2020. Again, as I have said, none of that increases the objective seriousness of either of the two offences for which he is to be sentenced but it does aggravate his overall criminality in the sense that that needs to be reflected in the ultimate sentencing outcome.
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SUBJECTIVE MATTERS
Turning then to subjective matters relating to Mr Trung himself. He is currently 42 years of age. His criminal history goes back to 2014 when he was dealt with for destroying property and assault occasioning actual bodily harm for which he was initially sentenced to three months imprisonment, although on appeal this was changed to an Intensive Correction Order.
In 2019 he was placed on an Intensive Correction Order for two years four months for supplying a prohibited drug and cultivating cannabis with an offence of dealing with suspected proceeds of crime being taken into account on a Form 1 document. As I have already noted, he was still subject to that Intensive Correction Order at the time of the offences before the Court.
The offender's subjective circumstances have been placed before the Court largely in the form of a psychological report of Mr Bradley Jones. He was born in Vietnam but came to Australia with his brother in 1997 when he was about 18 or 19 years old, having been sponsored here by his mother. The offender was effectively raised in Vietnam by his grandparents and describes a happy childhood without any real difficulties. He completed school until about year 11 in Vietnam and was an average student and generally enjoyed school.
He was, until he entered custody, in a relationship with a woman who he married in 2012 and who was previously in a long term relationship with the offender's brother who passed away in 2007. Together they have raised three children of their own as well as three other children from the relationship between her and the offender's brother.
The offender has a reasonably constant work history having worked initially as a printer and then in his mother's laundry business and also as a wall and floor tiler. Since being on remand in custody, he has worked as a kitchen hand at Lithgow Correctional Centre and then in the furniture shop at Macquarie Correctional Centre.
He has no history of alcohol use but he does have some history of ice usage to which he relapsed in mid-2020 due to having a low mood and being unemployed. He has no history of mental health problems and described himself to the psychologist as generally being happy and healthy.
[5]
REMORSE
Turning to questions of whether there is any remorse in this case. The psychologist records that the offender admitted he had a gun in the Porsche Cayenne but was reluctant to discuss anything more in relation to the offences, claiming that he did not own any of the items and had been instructed to drive the vehicle by someone else and as I have noted already, that is essentially the version that he has given in evidence earlier today.
The psychologist noted that the offender expressed remorse and guilt saying, "I know what I did was wrong and I feel remorseful about that".
Also in his evidence today the offender said that the offences before the Court are all serious. In my view, having regard to this evidence, I accept that there is some, albeit somewhat limited, evidence of remorse.
[6]
PROSPECTS OF REHABILITATION
I have also given consideration to the offender's future prospects and his future risk of re‑offending. In this regard, I note that on the LSI-R test administered by the psychologist, the offender scored as being a low to moderate risk of re‑offending but the psychologist concluded that the offender is in need of psychological treatment and drug relapse prevention counselling as well as monitoring by Community Corrections in order to reduce his risk.
On the LSI-R test administered by the author of the Sentencing Assessment Report, however, his risk was assessed as being a medium risk which although not significantly different from the result found by the psychologist is perhaps slightly different.
Although the offender has separated from his wife, he says that he will be able to live with his sister when released, and while the author of the Sentencing Assessment Report was unable to contact the sister, the offender gave evidence today confirming this claim saying that she is able to take him and that she lives in a house in Greenacre. The offender also reports having work available to him as a tiler upon his release and being able to work with his cousin, a claim that he again confirmed in his evidence today.
While this evidence about his living and working arrangements is promising, I need also take into account in terms of future risk the fact that the offender was arrested in possession of drugs in October 2020 and released on bail but then offended again in a similar manner in January 2021. Not only that, but at the time of both sets of offences, he was subject to an Intensive Correction Order which also related to drug offences. This, combined with his admission that he has had a problem with ice usage in the past for which he has had no treatment, as well as his recent separation from his wife, leave me with concerns about his future risk. On balance, I am unable to find that his prospects of rehabilitation are good. At best I would say they are uncertain and that a significant risk of future offending remains.
[7]
DETERMINATION
I come then to my determination of the appropriate sentence. In determining the sentence I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. I am satisfied for the purposes of s 5 of that Act that a period of imprisonment is the only appropriate penalty for the two substantive offences before the Court as well as the two offences that are to be dealt with under the s 166 certificate.
As I have noted already, in dealing with him for the firearms offence, I will take into account the three admitted offences on the Form 1. As to these, I am satisfied that those offences are such that they should apply some upward pressure on the sentence for the firearms offence, especially given that one of the matters on the Form 1 involved the possession of another weapon, namely the baton that was found in the Audi on 28 October 2020.
As has been said in Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act [2002] NSWCCA 518, a Court in dealing with matters on a Form 1 is entitled to give greater weight to two elements which are always important or at least material in the sentencing process. The first one being the need for personal deterrence and the second one being the community's entitlement to extract retribution for serious offences. In my view, that principle is relevant in this case and the sentence to be imposed on the firearms offence should be increased at least to some degree by reason of the matters of the Form 1.
In relation to the two matters on the s 166 certificate, I intend to deal with those matters when imposing the aggregate sentence that I will announce shortly. Of course, in determining the indicative sentences for the two matters on the s 166 certificate, I am bound by the jurisdictional limit of the Local Court.
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COVID
In determining sentence, I have also taken into account the fact that the offender's period in custody since January 2021 has been significantly impacted by the COVID pandemic. This has, as I'm aware, imposed significant hardships on those in custody, not only in terms of restrictions on contact with persons outside, but also restrictions on access to services and programs as well as a level of anxiety that is likely to accompany persons in custody as a result of the risk of the spread of that disease.
As I have said, I intend to impose an aggregate sentence for the two substantive offences which will involve, of course, a head sentence and a non-parole period.
[9]
SPECIAL CIRCUMSTANCES
In relation to the non-parole period, I have made a finding of special circumstances for adjusting the ordinary ratio between the head sentence and non-parole period. It seems to me that that is appropriate given that this will be the offender's first period of fulltime custody and also the need for him to be monitored on parole for a significant period once he is released.
Given that I am imposing an aggregate sentence, I must state the indicative sentences, those being the sentences that would have been imposed but for the fact that I am imposing an aggregate sentence.
Mr Trung, the sentences that I am about to mention are what are called indicative sentences which I am required by law to set out. They are not the final sentence. I will announce the final sentence a little bit later on.
The indicative sentences are as follows. Each of these are after the application of the 25% plea of guilty discount. For the offence of possessing unauthorised prohibited firearm and taking into account the matters on the Form 1, a head sentence of 36 months, that is three years, and a non-parole period of 21 months. That head sentence has been arrived at after a starting point of 48 months from which 25% has been deducted. For the offence of supply heroin, the indicative sentence is one of 22 months, arrived at after a starting point of 30 months from which I have deducted a 25% discount.
The indicative sentences for the two matters on the s 166 certificate are as follows. Firstly, for the possess prohibited weapon offence being the baton, an indicative sentence of seven months arrived at based on a starting point of ten months after which 25% has been deducted. For the second offence on the s 166 certificate which is the offence of dealing with suspected proceeds of crime, the indicative sentence is five months which is arrived at from a starting point of seven months from which 25% has been deducted.
[10]
TOTALITY
In determining the final aggregate sentence which I will announce in a moment, I have had regard to totality principles. In other words, the importance of considering, given that I am sentencing for a number of offences, what the overall sentence should be. As has been said in many cases, that sentence must adequately reflect the various purposes of sentencing but should not amount to a sentence that might be said to crush any prospects or hope or rehabilitation.
It seems to me that there should be some degree of accumulation between the firearms offence sentence and the sentence for the drug supply offence given that they involve discrete aspects of offending. However, given that they form part of one transaction in which it is accepted that the offender was acting as a courier, the degree of accumulation should not be great.
Having regard to those matters and to everything else that I have made reference to, I impose an aggregate head sentence of four years two months. I impose a non-parole period of 30 months. In other words, two years and six months after the finding of special circumstances.
[11]
COMMENCEMENT DATE
I have given careful consideration to the date upon which that sentence should commence and I heard submissions about that this morning. This is an important aspect to which I have given close consideration. Although the offender was arrested on 8 January 2021 and has been in custody since then, part of that period of custody has been due to the revocation of his Intensive Correction Order which did not expire until 2 September 2021. It was submitted on the offender's behalf that I would exercise my discretion to back date the sentence to around mid-2021 and the Crown has not really contested this.
In my view, it would be appropriate to adopt that course. I order therefore that the sentence commence on 2 June 2021. In other words, three months before the expiry of the ICO period of imprisonment. The head sentence will therefore expire on 1 August 2025. The non-parole period will expire on 1 December 2023.
Is there anything to raise at this stage concerning anything that I have said, any factual errors or anything else?
KELLER: No, your Honour.
JAEGER: There is nothing arising, your Honour.
HIS HONOUR: Thank you. There is this consent order that is sought, confiscation of the amounts of cash. That is a consent order, is that correct, Mr Keller?
KELLER: Yes, your Honour, it has been signed by my instructing solicitor. It is an electronic copy, your Honour and no doubt in due course a hard copy will make its way through the system.
HIS HONOUR: Thank you. I will sign those documents.
JAEGER: Your Honour, if I could just ask that at some point a signed copy could be made available to the Crown.
HIS HONOUR: Yes, I have signed those. I will hand those to my Associate and he will probably give you copies this afternoon.
JAEGER: Thank you, your Honour.
HIS HONOUR: We will just take the system off mute if we could please. Ms Ly, you were able to translate the majority of what I said?
INTERPRETER: Yes, your Honour.
HIS HONOUR: Yes, thank you and just to be clear, so the final sentence is a head sentence of four years two months with a non-parole period of two years six months. The head sentence will expire on 1 August 2025 and Mr Trung will be eligible for release on parole on 1 December 2023.
INTERPRETER: Yes, your Honour.
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Decision last updated: 01 June 2022