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District Court 11 August 2022

R v Nguyen

[2022] NSWDC 452

Drugs
CRIME SENTENCE SUPPLY MANUFACTURE

Citation: R v Nguyen [2022] NSWDC 452
Court: District Court of New South Wales
Date: 11 August 2022
Judge(s): Bourke SC DCJ

Background

Following a jury trial in March 2022, the offender was convicted on two counts under the Drug Misuse and Trafficking Act: supplying 1.262 kilograms of methylamphetamine (count 1) and manufacturing 2,763 grams of methylamphetamine oil (count 2), both in amounts constituting not less than a large commercial quantity. He was acquitted on a third count relating to a further quantity of crystal methylamphetamine found in a common area below the apartment's balcony.

Police executed a search warrant in August 2017 at a Bankstown unit owned by the offender. The door had been fortified from the inside, requiring some 60 strikes with a battering ram before entry was gained. Inside, police discovered a functioning clandestine drug laboratory containing numerous pieces of equipment, large quantities of methylamphetamine in various forms, chemical precursors, and cash. The offender was the sole person present.

The offender's defence at trial was that his presence at the unit was innocent, explained by his attending to a garden on the large balcony. The jury rejected this account. The sentencing hearing required the judge to determine the facts for the purpose of imposing sentence, consistent with the jury's verdicts.

  • What were the objective facts of the offences, consistent with the jury verdicts, for the purpose of sentencing?
  • What weight should be given to the offender's personal circumstances, including his background and the circumstances of his time in custody?
  • Whether special circumstances existed to justify adjusting the ratio between the non-parole period and the head sentence below the statutory norm.
  • What aggregate sentence was appropriate, including indicative sentences for each count?
  • Whether the cash found at the premises constituted tainted property subject to forfeiture under the Confiscation of Proceeds of Crime Act.

Decision

His Honour found, beyond reasonable doubt, that the offender was not merely present at the unit but was directly involved in both the manufacture and supply of large commercial quantities of methylamphetamine. The evidence was substantial: methylamphetamine residue was detected on the offender's clothing, his DNA was found on gloves inside the unit, and the manufacturing process was confirmed by forensic analysis. The conservatively estimated bulk value of the supply quantity alone was up to approximately $200,000, with a potential street value of up to $1 million.

The court accepted that at least two, and possibly three, other persons were also involved in the activities at the premises, though this did not diminish the offender's individual criminal responsibility. The offender's attempt to rely on a tenancy agreement and his role as a landlord attending to a garden was dismissed as implausible given the totality of the evidence.

On the question of personal circumstances, His Honour accepted that the offender had a difficult and traumatic background that had left lasting psychological impacts. These impacts, combined with his limited English, isolation in custody, and his wife's medical condition requiring her to care for their young child alone, were accepted as establishing special circumstances warranting a lower ratio of non-parole period to head sentence than would ordinarily apply.

For the ancillary dealing in proceeds of crime offence under s 193C(2), His Honour recorded a conviction but imposed no further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999. The $3,470 cash the subject of that offence was found to be tainted property and ordered to be forfeited to the State.

Orders Made

  • Count 1 (supply): Indicative sentence of 10 years' imprisonment with a non-parole period of 6 years 8 months.
  • Count 2 (manufacture): Indicative sentence of 11 years' imprisonment with a non-parole period of 7 years 4 months.
  • Aggregate sentence: 12 years' imprisonment with a non-parole period of 8 years, backdated to 18 March 2021 to account for 450 days of pre-sentence custody.
  • Head sentence expiry: 17 May 2033.
  • Non-parole period expiry: 17 May 2029.
  • s 193C(2) offence: Conviction recorded; no further penalty imposed (s 10A, Crimes (Sentencing Procedure) Act 1999).
  • Forfeiture: $3,470 cash ordered forfeited to the State under s 18 of the Confiscation of Proceeds of Crime Act.

Key Takeaways

  • Manufacturing and supplying large commercial quantities of methylamphetamine attract a maximum of life imprisonment and a standard non-parole period of 15 years, which the District Court treated as important guideposts in structuring the sentence.
  • Where an offender's background involves trauma with lasting psychological consequences, and where particular hardships in custody are established (such as language barriers and family separation due to a spouse's medical condition), those factors can support a finding of special circumstances justifying a reduced non-parole to head sentence ratio.
  • Acquittal on one count does not insulate an offender from the court drawing inferences about the overall context of criminal activity; the facts of the convicted counts were assessed in light of all the evidence consistent with the jury's verdicts.
  • Forensic evidence including DNA profiling, chemical residue testing on clothing, and expert analysis of crime scene notes played a central role in establishing the offender's participation in the manufacturing process, notwithstanding that other persons were also present at the premises.
  • Cash found at premises used for large-scale drug manufacturing may be found to constitute tainted property subject to forfeiture under the Confiscation of Proceeds of Crime Act, even where a formal criminal charge relating to that cash results in no additional penalty beyond conviction.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 25(2)
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 18

Cases:
- Bugmy v The Queen (2013) 302 ALR 192
- Nguyen v R [2007] NSWCCA 15