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District Court 15 June 2020

R v Nguyen

[2020] NSWDC 793

DrugsFraud & dishonesty
CRIMINAL LAW SENTENCE FORM 1 KNOWINGLY DEAL IN THE PROCEEDS OF CRIME POSSESS PROHIBITED DRUG INDICIA OF DRUG SUPPLY.

Citation: R v Nguyen [2020] NSWDC 793
Court: District Court of New South Wales
Date: 15 June 2020
Judge(s): W Hunt DCJ

Background

The offender was arrested on 17 July 2019 following police surveillance in Marrickville. He was stopped while driving a vehicle in which police found $50,000 in cash. That evening, a search warrant at a property he had formerly occupied uncovered approximately one kilogram of methylamphetamine (ice), and a further search of his caravan the following day located an additional 33.97 grams of the same drug, along with amphetamine, cocaine, and items consistent with drug supply.

The combined weight of methylamphetamine, totalling 1,031.77 grams, formed the basis of the principal charge: supply of a large commercial quantity of a prohibited drug under s 25(2) of the Drug Misuse and Trafficking Act. The offender had purchased the drug for approximately $40,000, intending to resell it, but said he had been unable to find a buyer.

Three further offences were placed on a Form 1 (meaning they were taken into account at sentencing without conviction): knowingly dealing with the proceeds of crime ($50,000), and two counts of possessing a prohibited drug (cocaine and amphetamine). The offender pleaded guilty and was agreed by the parties to be entitled to a full 25% utilitarian discount.

  • What was the appropriate objective seriousness of the principal supply offence, having regard to the quantity, circumstances, and nature of the conduct?
  • What weight should be given to the Form 1 offences, particularly the proceeds of crime matter?
  • What was the appropriate sentence given the offender's personal circumstances, including cognitive impairment, addiction, prior good character, remorse, and rehabilitation prospects?
  • Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and head sentence (that is, the period the offender must serve before being eligible for parole, relative to the total sentence).

Decision

His Honour assessed the objective seriousness of the principal offence as below mid-range but not reaching the lowest range. The quantity was just over twice the large commercial threshold. However, the operation was relatively unsophisticated: the drug was stored in a clearly labelled bag in a wardrobe, there was no evidence of an established supply network, and the offending appeared isolated. No aggravating circumstances were found. The commission of the offence for financial reward in the context of the offender's own methylamphetamine addiction was noted.

The Form 1 matters, particularly the proceeds of crime charge, exerted upward pressure on the sentence. The offender had not been truthful with police in his first interview regarding the $50,000, though he later showed insight and cooperated when interviewed about the drugs discovered at the Heckenberg premises.

His Honour accepted that the offender had reasonably good prospects for rehabilitation. Relevant personal factors included cognitive impairment (which reduced moral culpability), a methylamphetamine addiction, first time in custody, broadly good prior character, expressed remorse, and positive character references. Psychological and other reports supported those findings.

Special circumstances were found on two bases: the offender's first time in custody, and the need for a significant supervisory period on parole to consolidate rehabilitation already underway. His Honour noted that the cognitive impairment and the onerousness of custody served to mitigate the sentence rather than independently ground a separate special circumstances finding.

Orders Made

  • The offender was convicted of the principal offence.
  • Sentenced to a head sentence of 3 years and 3 months, backdated to 17 July 2019 and expiring 16 October 2022.
  • Non-parole period fixed at 21 months, with earliest release to parole on 16 April 2021.
  • The State Parole Authority and Community Corrections were recommended to impose conditions requiring the offender to undertake gambling and drug addiction programs with a Vietnamese-speaking counsellor.
  • All seized drugs ordered to be destroyed if not already done.

Key Takeaways

  • The District Court confirmed that quantity is one of several factors relevant to objective seriousness in supply offences, and that a quantity just over twice the large commercial threshold does not automatically place offending at mid-range or above where other indicators of sophistication or culpability are absent.
  • Where drug supply offending is isolated, unsophisticated, and unaccompanied by an established network or aggravating features, a below mid-range assessment of objective seriousness may be open.
  • A finding of special circumstances under NSW sentencing principles can rest on a combination of factors, including first time in custody and the need for an extended supervisory period to support rehabilitation, particularly where cognitive impairment is established.
  • Cognitive impairment, accepted on psychological evidence, reduced the offender's moral culpability and contributed to both the below mid-range objective seriousness finding and the special circumstances determination.
  • Form 1 offences, particularly a proceeds of crime charge involving $50,000, were treated as placing meaningful upward pressure on the overall sentence even where the principal offence warranted a more moderate penalty.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act (NSW), s 25(2) (supply large commercial quantity of prohibited drug), s 10(1) (possess prohibited drug)
- Crimes Act (NSW), s 193B(2) (knowingly deal with proceeds of crime)

Cases cited: No specific cases were cited in the judgment.