R v Hung Quoc Nguyen [2021] NSWDC 730

District Court New South Wales

Medium Neutral Citation: R v Hung Quoc Nguyen [2021] NSWDC 730 Hearing dates: 8 & 9 November 2021; 14 December 2021 Decision date: 14 December 2021 Jurisdiction: Criminal Before: NOMAN SC DCJ Decision: Sentence: Supply not less than the large commercial quantity of heroin: 3 years imprisonment with a non-parole period of 2 year to date from 1 July 2020. The offender is eligible for release to parole on 30 June 2022. This is a variation to the statutory ratio to 66% to give effect to my finding of special circumstances. Catchwords: SENTENCING — Penalties — Imprisonment – Supply prohibited drug not less than large commercial quantity Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW) Category: Sentence Parties: R; Hung Quoc NGUYEN Representation: Counsel: Crown: K. Nightingale Defence: G. Goold File Number(s): 2020/194865

Judgment 1. The offender, Hung Quoc Nguyen, is to be sentenced for his role in supplying a large commercial quantity of heroin. 2. The offender pleaded guilty and is to be sentenced for: 1. On 1 July 2020 he supplied 6.9223 kg of the prohibited drug heroin, being an amount not less than the large commercial quantity. This offence is contrary to s.25(2) Drug Misuse and Trafficking Act 1985 (NSW) with a maximum penalty of life imprisonment and a standard non-parole period of 15 years. 1. Both the maximum penalty and the standard non-parole period operate as legislative guideposts and represent the legislature's assessment of the seriousness of the offence. 2. The plea was entered in the Local Court. The appropriate reduction to apply is 25% to reflect the timing of the plea. 3. I have had regard to the entire facts document and only recite some parts in identifying the offence for sentence and in addressing the objective seriousness. 4. From late 2019 police conducted a controlled operation involving two undercover operatives. Contact was established with Hoang Ngo and continued between December 2019 and July 2020. Communication was made involving encrypted Cipher phones. Ngo organised for others to make deliveries he negotiated. 5. From 25 June 2020 to 27 June 2020 UCO 675 negotiated with Ngo via Cipher for the supply of heroin for $1.95 million. It was arranged the exchange would occur in a hotel that the UCO would nominate. On 29 June 2020 Ngo created a new Cipher chat titled "20 plates- COD 1.95 Wednesday" that included himself, UCO 675, Vang Vinh Tang and two other names. The following day UCO 675 added UCO 646. UCO 675 confirmed the deal would occur the following day between 1-2pm at a location to be advised. On 1 July 2020 Ngo advised one boy would come to count the money and a second boy would bring the drugs and then both boys would leave with the money. 6. At 12.21pm UCO 675 advised the chat group of the hotel name and location. Ngo advised at 1.15pm the boys were on the way and would be 10-15 minutes. Tang texted at 1.25pm that he had arrived. At 1.27pm UCO 675 advised the chat of the room number. Tang entered at 1.30pm and he commenced counting the money. He used his phone to send and receive messages. This offender then arrived with the drugs in 20 separate bags contained in a sports bag. They were both arrested. 7. This offender was used as a delivery person of the drugs on one occasion. 8. This conduct supports the drug supply offence for sentence. 9. In assessing the drug offence I am cognisant to consider the role played by the offender and whether others were involved, the type of prohibited drug involved, the amount of the drug and the purity. 10. The offender's role was evidently a trusted role. He was the delivery driver entrusted with almost $2 million of heroin and then entrusted to return with Tang and the money. His role was important but lower level and he was exposed to detection. Others were involved including Ngo who was at a considerably more involved and elevated level. Tang was provided with a Cipher phone and was part of the chat group planning the delivery. 11. The offender gave evidence about his involvement. He also relies upon his hearsay account. 12. In the Sentencing Assessment Report, the offender said he knew he was involved in something illegal and he was to be paid $1000 for his role. He said he was an abuser of both drugs and alcohol at the time and experiencing financial problems due to COVID related unemployment. 13. In his affidavit the offender advanced that 'due to a moment of weakness' he agreed to deliver a bag to a hotel room for an acquaintance in return for $1000. He said he suspected the bag would contain drugs when he agreed to deliver the drugs although he did not know how much. He said around lunchtime on the day of delivery he was contacted via mobile to drive to a designated street near the Rydges hotel. He said a man gave him a bag and told him what room to go to. The offender said he knew the bag contained a large quantity of a prohibited drug. He said he then drove to the hotel and entered the room. He said he was only to deliver the bag. He agreed he sat on the bed and did not leave. He said it was not part of his role to wait and leave with the money. He said he knew nothing about the money. 14. In his evidence in Court the offender said he only met the person who offered him the job once at a hotel through another acquaintance. He said he only indicated he would think about it and he was provided with instructions to be on standby. He said he was provided with a cipher phone at the hotel and his was 2 nights before the offence. On the day the bag was placed in his car and he was given instructions to go to a particular hotel room. There were two unidentified names on the cipher chat. He said he did not recall his name. If he was one of these names then he was part of the chat. If he was not one of these names then that denotes he was involved in a separate chat. 15. On the offender's initial evidence he had not committed to be involved. Yet, he was provided with a cipher phone. Additionally, his role was essential to the delivery. On his version, those involved could not rely upon him participating. This was a largescale operation requiring the performance of particular roles. It presents as incomprehensible that this would not have been organised ahead of possible participation an hour before the job. Later in evidence the offender agreed he chose to participate in the supply of a large commercial quantity of a prohibited drug for at least 48 hours and he knew what he was agreeing to. 16. He was to be involved for at least 48 hours knowing what he was to deliver. It was not spontaneous. 17. I do not accept his evidence of the circumstances of his involvement. He was not an impressive or credible witness and his evidence in content is not believable. I accept he was involved in advance of the operation and knew his role. He was provided with a cipher phone. I accept the following beyond reasonable doubt. I accept that he was involved in the group chat as one of the two unidentified persons. It was through this chat that he knew where to go. The title of the chat indicated the scale of the supply. He was not merely to deliver the drugs. He was 'one of the boys' referred to by Ngo and he sat on the bed as he knew he was to remain to remove the money with Tang. I accept he was to receive a minimal payment, likely $1000. 18. I observe the weight range for the offence is above 1kg. The amount involved is well above the minimum. As the drugs were seized no drugs were disseminated into the community. This is not attributable to any act of the offender or concern held by the offender. The drug was heroin and it was of a high purity at 72%. 19. The value of the drug was $300 per gram or $170,000 per kilogram. I observe this is less than the price paid and therefore this would encompass some cutting of the heroin. During the pandemic the prices were inflated. 20. The offender was a drug user and was involved for a minimal profit. 21. This offence falls well below the mid-range of objective seriousness. 22. The offender provided a letter and hearsay representations explaining his involvement in the drug supply. 23. The offender is now aged 24. He was therefore 23 at the time of offending and rehabilitation assumes greater significance. 24. The offender has limited criminal antecedents involving traffic offences. This does not disentitle him to some leniency. 25. The offender has been in custody since his arrest on 1 July 2020. 26. The background of the offender is informed by the Sentencing Assessment Report, family references and his own letter to the court. 27. The offender was living with his family at the time of offending and arrest. He was married and his wife was pregnant. She gave birth soon after his arrest. The offender advanced substance abuse issues nominating cocaine and alcohol commencing at the age of 17. His mother and wife did not support his account of the extent of the issues despite cohabiting with him. He was generally employed except under COVID and any substance use issues did not prevent continued employment. He advanced he became involved due to debts owed to family and friends. He accepted he associated with anti-social peers although he claimed to no longer associate with them. His remand status would prevent this in any event. He proposes to socialise with pro- social friends. He has completed addictions programs on remand. In the Sentencing Assessment Report he is assessed as falling in the medium-low risk of reoffending. In his affidavit he attested to being drug abstinent in custody. 28. There was an indication of insight to the author of the Sentencing Assessment Report. His family support expressions of remorse. 29. In his affidavit the offender detailed his difficult background. His mother's affidavit and his sister's affidavit are supportive of the salient details. His father has been imprisoned and otherwise removed himself from the family. There has been limited contact with the offender. His step-father went to gaol for a driving offence. His mother was injured in that collision. His mother re-partnered and this new partner who fathered more children did not embrace her other children. The adults fought and drank and neglected the children. The family moved frequently. He used drugs as a form of escape. He attended tertiary education including commencing but discontinuing a business and commerce degree. 30. The offender undeniably experienced traumatic experiences and an absence of a positive male figure. He was able to continue with schooling through to tertiary level. I accept his deprivations inform his drug and alcohol usage which in turn, in combination with unemployment, informs his money issues. There will be a modest amelioration to sentence. 31. Despite not accepting his sworn evidence as to the circumstances of his involvement, I accept there is a measure of remorse. 32. General deterrence and denunciation remain important sentencing considerations given the prevalence of these offences and the harm occasioned to individuals and the community. 33. I accept there are positive markers of rehabilitation including undertaking courses and abstaining from drugs. This resolve has not been tested in the community. Personal deterrence continues to be of some significance. 34. The threshold has been passed and the only appropriate sentence is one of full time imprisonment. The sentence commencement will be from when he entered custody on 1 July 2020. 35. I am mindful of the sentence to be imposed upon the co-offender Tang who participated in the supply. I have also considered the sentencing outcomes for other persons, not strictly co-offenders, but operating in the same group who performed supplies on other unrelated occasions. 36. I make a finding of special circumstances. This is based on an acceptance of the more restrictive conditions in custody during COVID, the longer periods in cells, the lack of personal visits and reliance on AVL/ phone contact and the more limited access to courses. This is also the first period in custody. He will require longer on parole to assist him to remain drug abstinent. 37. The offender is convicted. 38. Sentence: Supply not less than the large commercial quantity of heroin: 3 years imprisonment with a non-parole period of 2 years to date from 1 July 2020. The offender is eligible for release to parole on 30 June 2022. This is a variation to the statutory ratio to 66% to give effect to my finding of special circumstances.