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District Court 7 February 2025

R (Cth) v Nguyen

[2025] NSWDC 164

DrugsFirearms & weapons

Citation: R (Cth) v Nguyen [2025] NSWDC 164
Court: District Court of New South Wales
Date: 7 February 2025
Judge: R Tupman DCJ

Background

The offender appeared before the District Court for sentencing on three substantive offences arising from events on 14 and 15 June 2016 at Mount Pritchard in south-western Sydney. The offences spanned two legislative regimes: one Commonwealth drug trafficking charge and two New South Wales weapons and firearms charges.

The Commonwealth offence involved trafficking methamphetamine in a commercial quantity, carrying a maximum penalty of life imprisonment. The New South Wales offences involved possessing an unlicensed pistol (a replica Desert Eagle) and possessing a prohibited weapon (a contact electric shock device) without a permit. A total of 13 additional offences were placed on the record to be taken into account at sentencing, covering further pistols, additional electric shock weapons, flick knives, and a mace, as well as proceeds of crime and drug-manufacturing equipment.

The offender had also been separately sentenced in Western Australia for offences arising at the same time. The NSW court was therefore required to consider totality of sentence across both jurisdictions.

  • How to apply two distinct sentencing regimes simultaneously: Part 1B of the Crimes Act 1914 (Cth) for the Commonwealth offence and the Crimes (Sentencing Procedure) Act 1999 (NSW) for the state offences
  • Whether standard non-parole periods and the Early Appropriate Guilty Plea (EAGP) scheme affected the NSW firearms and weapons sentences
  • How to account for the prior Western Australian sentence when assessing totality, consistent with Mill v The Queen (1988) 166 CLR 59
  • The appropriate weight to give mitigating factors, including the offender's plea of guilty and evidence of rehabilitation
  • Whether forfeiture orders should be made in relation to the weapons, firearms, and cash

Decision

Her Honour sentenced the offender on the principal Commonwealth drug trafficking charge to nine years imprisonment, commencing 14 June 2019 and expiring 13 June 2028, with a non-parole period of five years and eight months expiring 13 February 2025. The commencement date reflected time already served in connection with the Western Australian proceedings, ensuring the overall sentence gave proper effect to totality.

In applying Mill v The Queen, the court assessed the total criminality across both jurisdictions. Her Honour concluded that the appropriate overall sentence, having regard to all offences committed at the same time including those dealt with in Western Australia, should be 12 years with an overall non-parole period of eight years and eight months. The nine-year term imposed in NSW was structured to give effect to that totality.

For each of the two substantive NSW offences (possessing the unlicensed pistol and possessing the prohibited weapon), the offender was convicted and sentenced to a community corrections order of two years, subject to standard conditions and Community Corrections supervision. The court took into account the respective Form 1 additional offences when imposing those orders.

Her Honour accepted that the offender had engaged in genuine and extensive rehabilitation during his imprisonment, supported by involvement with prison chaplains and religious organisations, as well as ongoing family support. These matters were weighed as mitigating factors alongside the guilty plea.

Orders Made

  • Imprisonment of nine years for the Commonwealth drug trafficking offence (sequence 1), commencing 14 June 2019, expiring 13 June 2028; non-parole period of five years and eight months, commencing 14 June 2019, expiring 13 February 2025
  • Community corrections order of two years for the NSW firearms offence (sequence 5), with standard conditions and Community Corrections supervision; Form 1 offences taken into account
  • Community corrections order of two years for the NSW weapons offence (sequence 14), with standard conditions and Community Corrections supervision; Form 1 offences taken into account
  • Forfeiture order pursuant to the Confiscation of Proceeds of Crime Act (NSW) 1989 in relation to all prohibited weapons and pistols (sequences 5, 14 and associated Form 1 offences)
  • Forfeiture order pursuant to s 316 of the Proceeds of Crime Act 2002 (Cth) in relation to the $24,200 cash (sequence 20)

Key Takeaways

  • Where a federal offender has already been sentenced in another jurisdiction for offences committed at the same time, the NSW sentencing court must apply the totality principle from Mill v The Queen to ensure the combined punishment is proportionate to the offender's overall criminality.

  • Sentencing an offender on concurrent Commonwealth and state charges requires the court to navigate two separate statutory frameworks simultaneously: Part 1B of the Crimes Act 1914 (Cth) governs the federal offence, while the Crimes (Sentencing Procedure) Act 1999 (NSW), including standard non-parole periods and the EAGP scheme, governs the state offences.

  • The District Court observed, with evident concern, that practitioners are consistently providing unrealistic time estimates for complex sentences. A matter involving a charge carrying a maximum of life imprisonment, dual sentencing regimes, 16 offences in total, and over 220 pages of materials was listed for two hours; Her Honour indicated it required at minimum a full day.

  • Lengthy and repetitious psychological reports were criticised as an unhelpful practice. The court noted that such reports frequently restate the same propositions multiple times and exceed what is genuinely useful for assessing an offender's psychological condition.

  • Demonstrated rehabilitation, including engagement with religious organisations in custody and the prospect of stable family support on release, was accepted as a mitigating factor and informed the structure of the sentence.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth) 1995, ss 302.2(1), 308.4(1), 400.9(1A)
- Crimes Act 1914 (Cth), ss 16A, 16BA
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 32
- Firearms Act 1996 (NSW), s 7(1)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Confiscation of Proceeds of Crime Act (NSW) 1989
- Proceeds of Crime Act 2002 (Cth), s 316

Cases
- Mill v The Queen (1988) 166 CLR 59
- R v Nguyen [2018] WASCSR 135