Citation: R v Nguyen [2023] NSWDC 318
Court: District Court of New South Wales
Date: 17 August 2023
Judge: Noman SC DCJ
Background
The offender, a 33-year-old Vietnamese-born permanent resident, appeared for sentencing on two separate matters. The first concerned a breach of a Commonwealth Intensive Correction Order (ICO), originally imposed in 2019 for three money laundering offences involving the handling of over $580,000 in suspected stolen funds. The second concerned a fresh State offence of aggravated break and enter with intent to steal, committed on 6 May 2022.
The original ICO had already been revoked and replaced with a further ICO by Judge Hanley SC on 22 April 2022. Within two weeks of that replacement order being imposed, the offender committed the break and enter offence the subject of this sentencing. He entered a residential apartment at approximately 3am, aware that persons were present inside. He was confronted by two occupants and fled, but was later identified from a photograph taken by one of the residents.
The offender had a background of escalating drug use, primarily cannabis and methamphetamine, and a diagnosed substance abuse disorder. He pleaded guilty in the Local Court to the break and enter charge, attracting a 25% discount for the timing of the plea.
Legal Issues
- Whether anything other than full-time imprisonment was appropriate given two prior ICO breaches and the commission of a further serious offence while subject to a fresh ICO
- What weight, if any, should be given to drug use, substance abuse disorder, and associated mental health factors as mitigating circumstances going to moral culpability
- How the principles of totality should apply when aggregating the sentence for the index offence with other concurrent Local Court sentences
- Whether special circumstances existed to justify a departure from the standard non-parole period ratio
Decision
His Honour found that full-time imprisonment was the only appropriate sentencing outcome. The offender had completed only two hours of the ordered community service under the second ICO, had used drugs in breach of conditions, and had reoffended within a fortnight of the replacement order being imposed. The submission that a community-based order remained available was rejected. His Honour observed that no meaningful compliance had occurred across two ICOs, and that nothing warranted a reduction to the term of the sentence for the breach component.
On the aggravated break and enter, His Honour characterised the offending as a moderately serious example of the provision, noting the absence of planning but acknowledging the significant impact on the two victims. Both provided statements describing ongoing loss of safety and security. His Honour accepted that drug intoxication explained the offending but declined to treat it as reducing moral culpability, finding the offender had made a "reasoned though poor choice" to commit the offence for financial gain.
The offender's drug use, substance abuse disorder, anxiety, depression, and difficult adjustment to life in Australia were all considered. Appropriate remorse, insight, and acceptance of responsibility were accepted as genuine. However, rehabilitation prospects were described as "guarded," given the offender's varied but drug-informed criminal history and the limited effectiveness of available community support to date.
On totality, His Honour noted the different offence categories but their shared connection to the offender's drug use. A finding of special circumstances was made, based on the onerous conditions experienced during COVID, and the need for an extended supervision period and monitored treatment post-release. This justified reducing the non-parole period ratio to 50% on the index offence.
Orders Made
- The ICO imposed on 22 April 2022 was revoked.
- For the Commonwealth ICO breach: a fixed term of 12 months imprisonment, dated from 7 August 2022.
- For aggravated break and enter (s 113(2) Crimes Act 1900): 3 years imprisonment with a non-parole period of 18 months, dated from 7 November 2022 (non-parole period expiring 6 May 2024; head sentence expiring 6 November 2025).
- Overall aggregate sentence (including Local Court matters): 3 years and 5 months, with an overall non-parole period of 1 year and 11 months, producing an overall ratio of 56%.
Key Takeaways
- A finding of two prior ICO failures, combined with reoffending within two weeks of a replacement order, rendered any further community-based order unavailable on the facts of this case.
- Drug intoxication and a diagnosed substance abuse disorder do not automatically reduce moral culpability where the offender made a deliberate, if impaired, choice to offend for financial gain.
- Where a breach of an ICO informs a sentence in another jurisdiction, the District Court may have limited visibility of that fact, which can affect the utility of comparable outcomes as sentencing guides.
- Special circumstances sufficient to justify a reduced non-parole period ratio were established by reference to COVID-related custodial conditions, the need for extended supervision, and the requirement for monitored drug and mental health treatment in the community.
- Breaching conditional liberty, including committing offences while on bail and subject to an ICO simultaneously, operates as an aggravating factor reflecting an abuse of the freedom granted by each order.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 113(2) (aggravated break and enter with intent to steal)
- Criminal Code Act 1995 (Cth), ss 400.9(1) and 400.9(1A) (dealing with money suspected of being proceeds of crime)
- Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), s 142(1)
Cases:
No cases were cited in the provided judgment text.