Citation: R v Nguyen and Tek [2023] NSWDC 582
Court: District Court of New South Wales
Date: 21 September 2023
Judge: Bourke SC DCJ
Background
Two offenders were sentenced following guilty pleas to serious offences arising from distinct but overlapping criminal conduct. The first offender, referred to here as Nguyen, was involved in a campaign of arson directed at a nail salon and later at motor vehicles, carried out to enforce a drug debt owed by a third party to a criminal syndicate. He also faced a separate charge of supplying a commercial quantity of MDMA. The second offender, referred to as Tek, faced a single charge of supplying a commercial quantity of MDMA.
Nguyen set fire to a nail salon inside Bankstown Central shopping centre on two separate occasions in May and June 2022, causing damage of approximately $20,000 and $170,000 respectively. On the second occasion, around 1,450 people were present in the shopping complex. He was identified through CCTV footage, DNA evidence from a dropped glove, and call-charge records placing him in the area at the relevant times.
After the fires, Nguyen visited the home of a man who had lent money to the debtor's mother. Over several visits, he threatened to shoot the victim, his wife, and children if they did not assist in locating the debtor. On 12 July 2022, cars belonging to the victim's family were set alight. The drug supply offending was a separate and later matter.
Legal Issues
- What sentences were appropriate for multiple offences of damaging property by fire, having regard to the use of an accelerant, the vulnerability of bystanders, and the criminal motivation of debt enforcement?
- How should an aggregate sentence be structured across multiple offences of differing character and separated in time?
- Whether special circumstances existed to justify a non-parole period shorter than the statutory ratio for Nguyen.
- What sentence was appropriate for Tek's single offence of supplying a commercial quantity of MDMA, and whether an Intensive Correction Order was warranted.
Decision
His Honour applied a 25 percent discount to all sentences for both offenders, reflecting the utilitarian value of their guilty pleas. The sentencing exercise took into account the maximum penalties and, where applicable, the standard non-parole periods prescribed by statute, as well as the principles from key appellate authorities governing drug supply and fire-related offences.
For Nguyen, the court found that the arson offences were serious. They were deliberate and motivated by criminal debt enforcement, involved the use of accelerant, and were committed in occupied public spaces placing many people at risk. The visits to the victim's home, during which Nguyen threatened lethal violence against the victim and his family, aggravated the overall picture of his offending. The Form 1 matters (the car fires targeting the victim's vehicles) were taken into account in setting the indicative sentence for the sequence 4 offence, and his Honour was satisfied those matters warranted upward pressure on that sentence for purposes of personal deterrence and retribution.
Applying totality principles, the court considered that the fire offences were separated in time and circumstance and warranted some notional accumulation, while the drug supply offending was later and discrete and warranted further accumulation. His Honour found special circumstances based on Nguyen's relative youth, his mental health conditions, and the need for community supervision on release, resulting in a non-parole period of four years and six months within an aggregate head sentence of six years and six months.
For Tek, the court was satisfied the custody threshold was crossed but concluded that an Intensive Correction Order was appropriate in his circumstances. His sentence of 22 months imprisonment was directed to be served in the community subject to five conditions.
Orders Made
Tek:
- Sentenced to 22 months imprisonment, to be served by Intensive Correction Order
- Standard conditions: good behaviour (no offences) and supervision by Community Corrections
- Additional condition: no consumption of illicit drugs or unprescribed medications
- Additional condition: engagement in counselling or psychological treatment as directed by Community Corrections
- Additional condition: 200 hours community service
- Directed to report to Community Corrections at Fairfield within 24 hours
Nguyen:
- Aggregate head sentence of six years and six months, commencing 15 July 2022, expiring 14 January 2029
- Non-parole period of four years and six months, commencing 15 July 2022, expiring 14 January 2027
- Finding of special circumstances made
Indicative sentences (after 25% discount for plea of guilty):
- Sequence 1 (first nail salon fire): 2 years and 3 months imprisonment
- Sequence 2 (second nail salon fire): 2 years and 7 months imprisonment
- Sequence 4 (car fire, including Form 1 matters): 2 years and 7 months imprisonment
- Sequence 5 (s 166 certificate, reckless damage to neighbouring property): 14 months imprisonment
- Sequence 1 drug supply (MDMA): 2 years imprisonment, with a nominated non-parole period of 16 months
Key Takeaways
- A campaign of arson carried out to enforce a criminal drug debt, in a busy shopping centre with many bystanders present and involving the use of accelerant, was treated as serious offending warranting substantial custodial terms, even after a 25 percent discount for a guilty plea.
- Totality principles required the court to impose an overall aggregate sentence reflecting the full criminality of multiple fire offences separated in time and a discrete later drug supply offence, without producing a crushing result.
- Special circumstances were found based on the offender's youth and mental health conditions, reducing the non-parole period below the standard ratio and allowing for extended supervision in the community on release.
- Where a co-offender faced a single charge of commercial drug supply without the aggravating features of the primary offender's conduct, an Intensive Correction Order was available and was imposed in lieu of a custodial term.
- Form 1 matters, even where not the subject of separate sentences, can exert upward pressure on the indicative sentence for the offence to which they are attached, to reflect the need for personal deterrence and retribution.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 195(1)(b) (damage property by fire)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 3A and s 5
- Criminal Procedure Act 1986 (NSW), s 166 (certificate for Local Court matters)
Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- CDPP v De La Rosa [2010] NSWCCA 194
- Porter v R [2008] NSWCCA 145
- R v Millwood [2012] NSWCCA 2
- Tiknius v R [2011] NSWCCA 215