District Court New South Wales Medium Neutral Citation: R v Vu [2023] NSWDC 635 Hearing dates: 11, 13, and 14 September 2023 Date of orders: 14 September 2023 Decision date: 14 September 2023 Jurisdiction: Criminal Before: Neilson DCJ Decision: See par [71] – [73]. Catchwords: CRIME – SENTENCE – PLEAS OF GUILTY – SUPPLYING LARGE COMMERCIAL QUANTITY of methylamphetamine (over 218 kg) plus knowingly dealing with the proceeds of crime ($1.14M) – Prior good character – Disadvantaged background – Contrition and remorse – Good prospects of rehabilitation – "Manager" of drug warehouse. Legislation Cited: Drug Misuse and Trafficking Act 1985 Cases Cited: Ayk v R [2013] NSWCCA 119 Deakin v R [2014] NSWCCA 121 Hung v R [2019] NSWCCA 303 R v Ferguson [2022] NSWCCA 147 R v Ngo [2022] NSWDC 271 R v Wong [2019] NSWDC 233 Texts Cited: Nil. Category: Principal judgment Parties: Crown – R (NSW) Accused - Manh Cuong Vu Representation: Counsel: Crown – Ms Gray, F. Accused – Mr Boulton, P. SC. Solicitors: Crown – Office of the Director of Public Prosecutions Accused – JBP Law File Number(s): 2022/00141136 Publication restriction: Nil. Judgment Charges 1. HIS HONOUR: Manh Cuong Vu stands for sentence as a consequence of pleading guilty to two very serious charges. The first charge is that on 9 July 2021 in Canterbury in this State, he did supply an amount of prohibited drug, namely 218 kilograms, 716.55 grams of methylamphetamine being an amount which was not less than the large commercial quantity applicable to that drug. The maximum penalty for that offence is imprisonment for life and/or a fine of 5,000 penalty units. Parliament has fixed a standard non-parole period of 15 years which I would have to consider imposing if the offender had pleaded not guilty and was convicted of the charge and the matter was in the mid-range of objective seriousness. I must point out that the large commercial quantity of methylamphetamine is 500 grams so that the amount of amphetamine which was found to be in the possession of the offender was 437 times the prescribed large commercial quantity of the drug. 2. The offender asks me to take into account on a Form 1 three further offences known as sequence 3, sequence 4 and sequence 10. Sequence 3 is supplying 33.32 grams of 3,4‑methylenedioxy-methylamphetamine being an indictable quantity of that drug. The maximum penalty for that offence is imprisonment for 15 years. Sequence 4 is supplying 36.06 grams of cocaine, the indictable quantity of that drug, and another offence carrying a maximum penalty of imprisonment for 15 years. Sequence 10 is supplying 767 grams of 1,4-Butanediol, an indictable quantity of that drug, again an offence carrying a maximum penalty of imprisonment for 15 years. 3. The second substantive offence which the offender asks me to sentence him is the crime that on 9 July 2021, at Canterbury in this state, he did deal with the proceeds of crime, namely $1,144,650.00 in Australian currency, knowing that it was the proceeds of crime. The maximum penalty for that offence is 15 years' imprisonment. There is no standard non-parole period. 4. At the time that the offences are alleged to have occurred, 9 July 2021, the offender was 29 years old. He is now 30 years old and will soon turn 31 years. Facts 1. There are a number of significant dates to bear in mind in this case. I shall state them now but they need to be kept firmly in mind for a number of reasons. On 13 July 2020, Unit 8 in a building complex at 30-36 Minter Street, Canterbury was let out. On 8 July 2021 a locksmith and a plumber attended at those premises and gained entry in order to attempt to locate a plumbing leak. The plumber found under the kitchen sink a sealed bag containing cash labelled, "100 small K" and another bag full of white crystals which the plumber suspected to be the drug popularly known as Ice or crystal methamphetamine. The plumber contacted the real estate agent who was managing the property and the real estate agent called the police. 2. Police attended the property and declared it a crime scene. It would appear that the forensic examination of the scene was carried out on the following day, 9 July 2021, and that is the date of the offences to which the offender has pleaded guilty. However, the offender was not arrested until 16 May 2022. He appeared in the Bankstown Local Court on 17 May 2022. Bail was refused and he was taken into the custody of Corrective Services. He has been in custody ever since. The other salient date to bear in mind is that on 6 June 2023, the offender was interviewed by Mr Sam Borenstein, a clinical psychologist. Mr Borenstein was cross-examined yesterday, the case having commenced before me last Monday. The sentencing hearing was completed yesterday at 4pm and I commenced giving this judgment shortly before 11am today. 3. Unit 8, 30-36 Minter Street, Canterbury is, I infer, a residential two-storey building complex containing a number of home units or apartments. Unit 8 is on the upper floor of the building. The unit is owned by Victor and Nora Wong. It is let by them through LJ Hooker at Ashfield. On 13 July 2020, the unit was rented for a period of seven months initially in the name of Mr Mukesh Madaan. Mr Madaan's identity was, "stolen" in May 2020. The Crown is unable to establish who used Mr Madaan's name to rent the property. 4. When interviewed by Mr Borenstein, the offender made these admissions: "I did what I was asked, I looked after the house, and I paid the rent. They gave me things to buy, like vacuum bags and furniture. I had an idea things were illegal, I was too much into it and I was kind of scared. I agreed to do it, and I didn't want to go back on my word. I didn't want to say no. I didn't want to get on their bad side." 1. At this stage it is important to note that the offender admitted to paying the rent for Unit 8 at 30-36 Minter Street, Canterbury. There is some objective evidence which points towards his being involved in paying the rent but the admission that he made to Mr Borenstein is a much greater acknowledgement of his involvement in the renting of the unit than the Crown could actually prove. 2. On 8 July, a report of a water leak was made by a neighbouring unit occupier and on 9 July the locksmith and plumber attended and gained entry into Unit 8 after attempts to locate the tenant were unsuccessful. Upon entering the unit, it was identified that a toilet pipe had burst. In order to fix the leak the plumber had to turn off the water main which was located under the kitchen sink. On opening the kitchen sink cupboard, the plumber saw the sealed bag of cash labelled, "100 small K" and the other bag full of white crystals which he suspected to be the drug known as, "Ice". The plumber then contacted the real estate agent who, in turn, called the police. 3. The police attended at the unit and declared it a crime scene. From what I'm about to record, which I hope to be a precis of a very complex set of facts, the unit was not being used by anybody as a residence but was being used as a, "Safehouse" or a drug warehouse, a property in which drugs and items connected to the drug trade were stored and from which it would appear the drugs were distributed in some fashion by members of a drug gang or drug cartel. 4. After the police had declared a crime scene, they applied for a crime scene warrant. While waiting for additional resources to attend the address, police guarding the crime scene observed a man of Asian appearance carrying a flatscreen television or computer screen and saw him approach the unit. The Asian man advised that he was dropping off the screen to his friend at Unit 7, directly next door to Unit 8. The Asian man knocked lightly on the door of Unit 7, put the screen on the floor and then walked away. Police then knocked on the door and raised the occupant of Unit 7 and asked him about the screen that had been left outside his door. The occupant said that he knew nothing about the screen at all. 5. Closed-circuit television was later obtained which identified a man matching the description made by police of the person they saw in the unit with the flatscreen television or computer screen. That man was walking along Minter Street during a timeframe applicable to the person dropping off the screen at Unit 7. That man matched the physical description of this offender. Statements were obtained from other residents of the unit complex and a general description provided by the occupant of Unit 8 was of an Asian male of slim build aged in his 20s or early 30s. He was occasionally seen with an Asian female of a similar age. That might have been a description of the offender. 6. The initial examination indicated that there was minimal furniture within the flat. There was no bedding. There were no dining tables. There was no refrigerator and there was no item consistent with anybody living in a flat. Inside the unit police located large quantities of drugs and cash. All told, $1,114,650.00 in Australian currency was found. That is the fact behind the second substantive charge to which the offender has pleaded guilty, dealing with the proceeds if crime, namely $1,114,650.00 in cash. 7. Police also found the 218 kilograms, 716.55 grams of methylamphetamine, 767.60 grams of 1,4-Butanediol which is sequence the 10 offence, 33.32 grams of the drug commonly known as MDMA or Ecstasy, the sequence 3 offence and 36.06 grams of cocaine, the sequence 4 offence. There were five locations which contained prohibited drugs. In the garage there was a total of 195,595.20 grams of methylamphetamine. There were 11 boxes in total, most with 20 kilograms of methylamphetamine in individual 1-kilogram bags. In the kitchen were a total of 1,635.35 grams of methylamphetamine. Also in the kitchen were vials of 1,4-Butanediol. In a bedroom were 20,865.30 grams of methylamphetamine. In the linen closet were 534.20 grams of methylamphetamine and also some amount of MDMA or Ecstasy. There was a safe which contained 86.5 grams of methylamphetamine and the balance of the MDMA. 8. Within the unit the police also found these things: 1. Luvele branded vacuum seal bags; 2. Scales; 3. A safe; 4. NHS Australia branded empty pill capsules; 5. Adidas, Nike and Puma bag tags; 6. An Apple iPad registered to the offender; 7. Three Google mobile phones; and 8. An opened Australia Post parcel addressed to the offender at 6 Pacific Street, Kingsgrove with a contact phone number ending in 907. 1. Between 1 November 2017 and 18 July 2021, the offender resided at 6 Pacific Street, Kingsgrove. As I understand it, that is the address of both his mother and his brother. From 18 July 2021 until his incarceration, the offender was living at Unit G03, 426 Canterbury Road, Campsie. At all relevant times the offender's brother, Quang John Vu, resided at 6 Pacific Street, Kingsgrove. 2. Most of the items which I have just described are consistent with items used in drug trafficking. The unit also contained several other items consistent with drug trafficking including resealable bags, vacuum sealers, rubber bands, empty capsules, disposable gloves, drug purity testing kits, Glad-Wrap, plastic packaging and other items consistent with drug packaging and supply. 3. Throughout the unit, police found many discarded and opened plastic vacuum and resealable bags with markings consistent with exhibits containing drugs and cash. Scales located at the address were examined and traces of methylamphetamine and lidocaine and Ecstasy and cocaine were identified as having been weighed on the scales. As I understand it, lidocaine is a substance often used to cut methylamphetamine, that is, to blend with it. A number of items found in the unit were tested for both DNA and fingerprints. The offender's DNA was found on a number of items as were the DNA of others. 4. Inside the kitchen there was a mixture of DNA from at least two individuals on the sliding door handle which gave access to the kitchen. That DNA was on each side of the door handle. The offender's DNA could not be excluded as a contributor to that mixture. A mixture of DNA of at least two individuals was found inside blue gloves located in the garbage in the kitchen. The major contributor to that mixture has the same profile as the offender. DNA of the same profile as the offender was found on the mouthpiece of a water bottle and on the textured rim of the cap of another water bottle. A mixture of DNA from at least three individuals was found on the keypad and opening dial of a safe located within the kitchen. The offender's DNA could not be excluded as a contributor. DNA from at least four individuals was found on the surface of a paper note. The offender's DNA could not be excluded as a contributor to that mixture. 5. The note is figure 2 on page 7 of the 13 pages of agreed facts or page 18 of Exhibit 1. That is a breakdown of, "35 bags". It gives a number of bags, how many packs there were within each bag and then a total which appears to be a number of dollars. The list, if it be a drug list, indicates that packages were being sold for values between $200 and $173. That could be referenced to the selling of either cocaine or Ecstasy but it is unlikely to refer to bags of methylamphetamine which are not as expensive as cocaine and Ecstasy. 6. There was a mixture of DNA from at least four individuals on an elastic band found on the premises and the offender's DNA cannot be excluded as a contributor to that mixture. The DNA with the same profile as that of the offender was found on the mouthpiece of a coffee cup found inside the garage. The coffee cup that appears on page 6 of 13 of the agreed facts or page 19 of Exhibit 1 is a takeaway coffee cup with the usual plastic lid on the essentially cardboard cup. The offender's fingerprints were located on the side of a water bottle found in the kitchen sink and on the side of a tape dispenser located in the unit. The tape dispenser appears to be figure 1 on page 7 of 13 or page 20 of Exhibit 1 and would appear to be a dispenser of tape in which was used to seal up packages of cash and perhaps the larger packages of methylamphetamine. 7. What the Crown was able to prove about rental payments was that all but one payment of rent was made in cash. Cash payments were made at both Campsie and Kingsgrove. Campsie is a suburb adjacent to Canterbury, and Kingsgrove is not far from it, but again the offender lived at one time in Kingsgrove and another time in Campsie. One payment was made from an account belonging to the offender's brother and the offender's brother's banking records show that the equivalent amount of the rent paid from the brother's account on 6 May 2021 was reimbursed to the brother's account on 10 June 2021. It was credited with a note with a reference to the address of Unit 8 at 30-36 Minter Street, Canterbury. The offender's admission to Mr Borenstein proves much more than what the Crown was able to prove. 8. The Apple iPad which I identified earlier registered to the offender was downloaded and reviewed by the police. A number of Wickr encrypted message chats were identified. Messages sent from the iPad used the name, "toosoonj". In a chat between toosoonj and another person on 2 June 2020, the other person referred to toosoonj as, "Manh," the offender's first name. Police identified 21 chats between toosoonj and other users. Those chats discussed the sale and supply of prohibited drugs with users contacting toosoonj to place orders and then toosoonj organising for the order to be delivered, the agreed facts giving two examples of these chats, one was on 5 June 2020. A person using the name, "Puggieboogie" said: "Hey, what's your price for an Okka of M? Do you have and [sic, any] Xanax bottles to sell?" The reply by toosoonj was to provide a price and say that it was, "Good stuff" as it was, "Imported". 1. Anyone with a little experience sitting in the criminal courts or appearing in the criminal courts would know that most MDMA is imported from overseas and is generally of much better quality than any attempt made locally to produce the same substance. It occurred to both me and to Mr Boulten SC what happened appeared for the offender that that was probably a reference to MDMA or Ecstasy rather than a reference to Methylamphetamine. Another exchange of messages on 5 June was between a person identified as Wlsdgh and toosoonj. Wlsdgh said, "Yo, you are around for delivery in Wollstonecraft? Two bags? How much?" To that toosoonj replied, "450 maybe an hour". Whatever the two bags were of, clearly the price was $450 and they could be delivered in perhaps an hour. 2. The Crown is only able to prove directly three trips which the offender made to the unit. The first, of course, was on 9 July when the police attended and found the young Asian man with the flatscreen television or computer screen which he dropped off outside Unit 7. The other two occasions were on 8 September 2020 and 24 May 2021 and that can be ascertained from Uber records relating to the offender's Uber account. It is clear that the offender purchased a large number of items which were found within the unit. He purchased on eBay Luvele vacuum seal bags, digital kitchen LCD scales, NHS Australia gelatine capsules, high pre-vision digital scales, more Luvele vacuum seal bags. That was in-between April and July 2020. 3. The offender was also the director of a company known as EZ Holdings Pty Ltd. That company bought a number of items from Officeworks. In August and November 2020 these items were purchased: JB rubber bands, steel stacking stool - coloured black, a fortress anti-theft digital safe, PK100 Clinell universal wipes and further batches of JB rubber bands. There were also purchases of vinyl gloves and anti-bacterial wipes in March 2021. Items of all those natures were found within the premises, clearly purchased by the offender. 4. On page 12 of 13 of the statement of agreed facts or page 25 of Exhibit 1, are further items purchased by the offender through EZ Holdings from Bunnings. They include 50 litre storage containers with wheels and abacus cash system for counting notes. Whilst that item was not found on the premises, the box and packaging for it were, as set out in agreed facts 47 and 48 on page 12 of the agreed facts. The cash counting machine cost $4,950 and that was paid for in cash. 5. A search warrant was executed at the offender's residence in Campsie on 13 April 2022 and they found there a Cocaine testing kit which was found to be the same as a Cocaine testing kit found at Unit 8 at Minter Street, Canterbury. 6. Annexed to the agreed facts are schedules which set out the drugs actually found, where they were found, and the cash, where it was found, and in what quantities. 7. Relevant to my enquiry is that the purity of much of the methylamphetamine was tested. The highest level of purity of methylamphetamine found was 86.5%. The amount of methylamphetamine that was tested with the lowest grade of purity showed a grade of purity of 69.5%. However, most of the assays of the purity of the methylamphetamine indicated that it was between 77% and 74%, which is a relatively high grade of purity for that drug. 8. One must note from the admissions made to Mr Borenstein that I cited earlier, that not only did the offender pay the rent for Unit 8, but he also bought things such as vacuum bags and furniture to be used in the safehouse or drug warehouse, and that he did a large number of things that were required of him by whoever may have been the principal or principals in this drug-trafficking organisation or cartel. 9. What is most important in cases such as this is not the quantity or nature of the drug or its purity but rather the role performed by the offender. He appears, on any view of it, to have been a warehouse manager. He appears to have been actively involved in paying the rent. He clearly was a person seen at the premises, whose DNA was on the premises, who clearly was involved in packaging drugs perhaps from larger packaging into smaller packaging for distribution to consumers in the community and he appears, at least on the 21 occasions referred to in the 21 chats found on the iPad, that he dealt with ultimate drug consumers and facilitated what may have been deliveries of drugs to them from the safehouse. 10. Clearly, he was trusted, trusted not to make off with any of the drugs to sell them himself and set himself up in opposition to those for whom he was working and certainly trusted not to make off with any of the cash, a large amount of which was found on the premises and was clearly the proceeds of the drug trafficking perhaps being amassed in order to buy more drugs for trafficking to make more money. The scale of this drug enterprise was extremely large given the amount of drugs found, in particular the amount of methylamphetamine found, over 218 kilograms of that prohibited drug. Personal Circumstances 1. What are the circumstances that caused the offender to become involved in this? I now turn to consider his personal circumstances which will point me in a certain direction in that regard. The offender is ethnically Vietnamese. He, however, was born in Hong Kong. The inference to be drawn is that his parents fled from Vietnam to Hong Kong where their son was born. He came to Australia with his parents at the age of one year. He has a younger brother, John, who is five years his junior. The offender's parents separated and divorced when he was about four years of age. He may have been a little older. His father found a new partner, but his mother has remained single. The offender and his brother were raised by their mother. 2. According to the history obtained by Mr Borenstein, the offender had little, if any, contact with his father. The offender told Mr Borenstein that it was initially every two months but after that was nearly every two years. According to Mr Borenstein's history the offender's father is now aged 60 but is unemployed and his mother is in her "40s" and acts as a carer for Mr Vu's aunt, his mother's sister. Mr Borenstein's history continues in this fashion: "Mr Vu was aged about one when he, together with his parents, came to Australia. Mr Vu said he spoke Vietnamese at home and when he commenced school aged five, 'I didn't have any English and I didn't make any friends'. Mr Vu attended Marrickville Primary School and he repeated Kindergarten due to lack of English. The family moved to Mount Druitt where Mr Vu attended Mount Druitt School for Years 4 to 6. Mr Vu said, 'I didn't make any friends, maybe one or two who spoke Vietnamese. I struggled to fit in. It was always the way, and it was the same in high school'. Mr Vu attended Rooty Hill High School, 'I made a few friends, but no one I could ever rely on. I was never invited to parties. I stayed at home and played computer games. Towards the end, I didn't even go to school. I didn't want to be there'. Mr Vu said he was socially awkward and, 'I've always been an introvert. I felt more comfortable playing computer games. I found it hard to talk with people'. Mr Vu said he did not receive any psychological treatment or counselling, and any social difficulties did not come to the attention of his parents or teachers. Mr Vu completed the higher school certificate with an ATAR in the low 60s. Mr Vu said of academic performance, 'I was very good in primary school, and in high school, everything kept dropping year after year. I zoned out, and I didn't have any concentration. I didn't think it was important, and when I think back the main reason was I didn't have any friends'." 1. The history of Mr Borenstein goes on to record that the offender attempted several IT courses at St George TAFE but he did not complete them. He gave a history of working, delivering pizzas and working in data entry and information technology for an insurance company, a position he held for some two years. At the age of 22 the offender married his then-girlfriend whom he had known for some 12 months. She came to live with the offender with his mother and brother. His girlfriend was from Vietnam. After the offender's incarceration she divorced him. 2. At this stage I should point out that Exhibit 7, records obtained from the Department of Corrective Services, show that the offender's education history is other than what was recorded by Mr Borenstein. Those records are Exhibit 7, and were mainly used to cross-examine Mr Borenstein. On page 47 of Exhibit 7 a case note report made by Mr Ryan Gubbins, this is recorded referable to the offender's education and employment planning. The comment made by Mr Gubbins is this: "Inmate has participated in education and employment screening process. Inmate presented as compliant and cooperative and seemed to be future-focussed. Inmate indicated that he is willing to participate in any programs which aid in his rehabilitation. During the interview the inmate gave the following information about himself: Inmate has completed the following education/licences: Year 12 Degree Business Degree Information Technology Web Developer Valid C class licence Inmate has worked in the following job roles: System Admin Systems Consultant Warehousing Inmate is hoping that he might get bail. He'll look at programs more if this does not end up being the case." 1. Counsel for the Crown submitted that that history given by the offender of his educational qualifications shows that he is highly intelligent and well-trained. However, that history given by him is quite inconsistent with the history recorded by Mr Borenstein. One can accept that a person who has spent a lot of time gaming and working with and on computers might be prepared to boost themselves, that is, brag when telling Corrective Services what he can or cannot do. Any computer literate person in the gaol system would be relatively rare in the Court's experience. In other words, it appears to me likely that the history obtained by Mr Borenstein is more accurate than that stated in the Corrective Services record which I just quoted. Furthermore, it ties in with Mr Borenstein's history, ties in with the observations of certain relatives to which I shall refer and ties in with what is known as the offender's employment history. 2. As to the offender's coming into the orbit of the drug world, Mr Borenstein has this history: "Mr Vu said he commenced drugs when aged about 25 or 26, when working with [an insurance company] in IT. Mr Vu, 'drugs allowed me to socialise. It gave me something to talk about, and something I felt I had in common with people for the first time. I would spend a lot of my wages on drugs. I was married, and that's when we were drifting apart. Before then I only had very few friends. Drugs allowed me an entry point and I used it as a way of making friends. Back then, I wasn't very close with my brother, but we are now. He visits me in prison, and so does my father, and even my ex-wife has visited me'." … "Mr Vu had benefited from taking drugs, which allowed for social inclusion and popularity. Mr Vu said, 'it got to the point where I didn't really help at all and I used drugs on my own. I felt then it didn't even matter if I was socialising or not'. Mr Vu said he has no medical problems and he is unaware of any family history, psychiatric or psychological disorder. I asked Mr Vu to describe his personality and he replied, 'I'm an introvert. I'm more of a listener than a talker. I follow, and I try to fit in. I want to socialise, but it's hard for me'." 1. Earlier in his history Mr Borenstein recorded that initially the offender consumed drugs on weekends, recreationally which allowed him for social inclusion. That led to his becoming dependent on cocaine and other drugs including GHB as well as alcohol. He then admitted that his drug use and alcohol use was impacting on his marriage and his relationship with his family. He was not in contact with those people as much as with people using drugs. The history then continues in this fashion: "Leading up to and the time of the subject offence, Mr Vu was unemployed for some 12 months, and living off savings, having worked in deliveries and data entry. Mr Vu said he lived with his wife and parents and he paid rent. Mr Vu said, 'I wasn't home much, I met new friends, and I was going out a lot. They asked me to help by looking after the house, and they gave me cocaine and sometimes MDMA. Most of the time it was for personal use, and sometimes I would share with people. That way, I was feeling included socially'." 1. Use of drugs for recreational purposes led to his finding it easier to get on with others. His recreational use led to dependency, dependency led him to mix with other drug users and led him eventually into, "looking after the house," that is, the safehouse or drug warehouse, Unit 8 at 30-36 Minter Street, Canterbury. 2. To maintain his social inclusion he was involved in this drug trafficking. Mr Borenstein's history was that leading up to the time of the offence which one has to take as the time of the declaration of the crime scene on 9 June 2021, the offender was consuming cocaine, GHB and MDMA on a regular basis. He was consuming, "three bags" of Cocaine per day and eight to 10 millilitres of GHB and also MDMA. He also consumed between 10 and 15 standard drinks per day, his tipples being Vodka and wine. However, he did not take any prescribed medication, whether prescribed or not, and did not smoke tobacco or engage in gambling. 3. The cross-examination of Mr Borenstein and the attack on the offender's case was based largely on the Corrective Services records. The first of those records is a six-page document headed, "New Inmate Lodgement and Special Instruction Sheet". It was required to be sent by facsimile transmission to the placement officer, Court Escort Security Unit. It is clear that the document was completed at the Bankstown Courthouse, probably by a member of Corrective Services staff prior to the offender's being taken to gaol. It records that the offender was 165 cm high and weighed 60 kilos. However, that was probably what the offender said. I do not accept that at every courthouse there are a set of scales on which offenders are weighed before being put in vans to be taken to gaol. 4. When asked how he felt, he said that he was okay. He denied any medical issue other than asthma. He denied that he was an alcoholic, a binge drinker or drank excessively or was a recreational drug user or took any other non-prescribed medication. He denied that he had taken alcohol in the last 24 hours and denied that he was on any methadone program. He denied that he was under the influence of drugs or alcohol and was certainly not thought to be under the influence of drugs or alcohol by the assessor. 5. The next set of documents upon which Mr Borenstein was cross-examined was a reception screening assessment being a document of 15 pages. That document was completed on 19 May 2022. The offender admitted to using alcohol in the four weeks prior to his incarceration. He said he used alcohol two or three days per week and when he used alcohol he would have four standard drinks. He denied using drugs in the last four weeks. He denied any use of benzodiazepines, heroin, prescribed opioids, non-prescribed opioids, non-prescribed pharmaceutical medications, stimulants of any type, cannabis, any psychoactive substance or any other drug. He told the clinician assessing him thought he was neither intoxicated or withdrawing. He admitted to having some symptoms of Depression but denied any other psychiatric illness. 6. Another document is a four-page document headed, "Drug and Alcohol and Mental Health Summary". Again, he denied use of any of the drugs over the previous four weeks. This document was also generated on 19 May 2022. An intake screening questionnaire dated 18 May 2022 commencing on p 26 of exhibit 7 says that the offender had no, "AOD issues," that is issues relating to alcohol or drugs. One might be forgiven when reading this document and the other documents in Exhibit 7 that the offender had no problem with alcohol or drugs at all and hence the cross-examination of Mr Borenstein who formed the view that the offender was suffering from substance use disorder which was in remission due to incarceration. However, it may well be that in the period between the offending alleged on 9 July 2021, the day on which the police declared Unit 8 to be a crime scene and the offender's arrest on 16 May 2022 and his incarceration on 17 May 2022, a period of 10 months, that there was an interruption in the offender's drug habit because his source of drugs was removed. The drugs that he was being given for his work in the drug warehouse were withdrawn when the warehouse was discovered and taken apart by the police. 7. The history which Mr Borenstein took appears to have proceeded on the basis that the drug taking at the time of the offending, and the drug taking immediately prior to the arrest and incarceration, were the same, but, as I have pointed out, there was a 10-month interval. Furthermore it would appear that most of the documents prepared by Corrective Services Officers were made by them relying upon the accuracy of what the offender told them, but the offender may well have put his best foot forward, to use the vernacular, to paint himself in a favourable light to Corrective Services so that he was not subjected to any harsh circumstance of incarceration or excessive supervision because of, for example, a fear that he might undergo drug withdrawal. 8. Of course, one can criticise what I have said so far on the basis that it all depends upon what the offender told Mr Borenstein was correct and perhaps an attempt by the offender to downplay the significance of what he told Corrective Services. However, there is lay support which I have no hesitation in accepting from the offender's two cousins. They are both first cousins. They are brother and sister. I will not give their surname because it is unnecessary. The male cousin's first name is Thong. He is currently 34 years old and has been married for seven years and has two children. He currently holds a significant position in the Commonwealth Bank. He is head of Operations of one of its businesses. 9. He said this: "I have known Manh for all of his life and most of my life. I would consider us to have been quite close and as close as you can be as cousins. Growing up as children I would always see Manh at the occasional family gatherings and I was able to observe certain things about as we grew up together. When we were younger, I observed Manh's upbringing to be quite difficult. Manh's father was not around much, and we learned recently that the reason for that is because Manh's father was unfaithful to his mother throughout their marriage and took money off her while she was out working and earning money, support Manh and his younger brother, John. I recall that Manh and his family were moving houses quite frequently during their childhood and, as such, never resettled in one area. His mother was always trying to juggle finding a place that she could afford as well as affording her children the luxury of a better life. Manh was always very shy. When we were children, I knew Manh was more timid and shy than the rest of our family, especially when the family would come together during the occasional gatherings. I observed Manh's difficulty with his self-esteem from a young age as even while we were children, many adults in our family, including Manh's mum, would say, 'horrible things about Manh, especially talking about his looks and being unattractive and also that Manh looked like his father, and John looked like his mother. I witnessed on several occasions, family friends say to Manh that he was ugly, and John was handsome. I used to also hear Manh being called ugly on a frequent basis by his own mother, and she would hound him about acne on his skin. I know that he felt very insecure about himself overall and his social circumstances really impacted the way that he grew emotionally and mentally. Manh's physical stature was also significantly smaller than people his age and because of this, I believe Manh found it very difficult to fit in. Growing up, Manh did not have many friends at all. His personality was very inhibited and introverted. As such, he would spend most of his time playing video games. Manh's personality was quit reactive instead of proactive, in a sense where if no one initiates conversation or communication with him, he will just stick to himself and not speak. Manh was also very impressionable. As children, if we were to initiate conversation with him and tell him to play with us, he would be very happy and would want to come along. If we asked him to do things for us, he would do it without thinking much into it. Throughout Manh's schooling life, he had severe asthma and acne which I observed to have caused go give him self-esteem issues for Manh throughout his whole life. This also inhibited Manh's ability to open up to people. After growing up and moving on to our own respective paths, I had gotten married and had children. Manh also got married around the age of 22 but I did not know much about his marriage. All I know is that their marriage occurred within a relatively short time of knowing each other and soon after, they began having problems. I know that she has since divorced him after he was incarcerated. Approximately one to 1.5 years prior to Manh being charged with the offences before the Court now, I noticed Manh losing a lot of weight which concerned me and his family, but I did not make any comment on it as I did not want to make him insecure. I was told by his family that Manh would disappear for a whole year and later pop by once every three - six months before disappearing again. During the COVID-19 pandemic, I observed Manh doing cocaine. I observed him taking the cocaine very casually as if it was normal to him. I have a suspicion that Manh started using a lot of drugs which led to his weight loss and this caused a lot of concern for me. I did not want to raise anything with him because I did not want him to shut off completely and lose contact with me. However, once Manh was arrested, I suspected that it must have had something to do with his drug use. Despite Manh's upbringing, I have always found him to be polite, respectful and dependable. Whenever we have our family outings, Manh is always the first person there to set up food and arrange our meals and always one to stay back and help clean up. Life has not been easy for Manh but I know that he has always been very appreciative of anything that anyone does for him. Since Manh's arrest, the family has banded together and has a deeper understanding of how to be a support network for Manh when he is released, something he may not have felt was fully there prior to his arrest. When Manh is to be released he would have my full support and I will do all that I reasonably can to help him succeed in his future. I believe that Manh is a good person who will not reoffend once released." 1. I have not quoted the last paragraph which merely requests me to take into account that reference which I clearly do and offers to give clarification if so desired and provides his telephone number. Thong has been present throughout this sentencing hearing and was prepared to be cross-examined by counsel for the Crown but he was not required for cross-examination. 2. Thong's sister, Thi, is a solicitor working fulltime in a very large, well-known Sydney firm. Much of what she says ties in exactly with what her brother, Thong, told me. I shall not recite the first part of her reference which, as I said, reiterates much of what her brother said. The second part of her reference is this: "During COVID-19 I had suspicions he was doing drugs. When I heard Manh was arrested, I assumed it was related to his drug use. Whilst he was in custody, I visited Manh on several occasions to show my support knowing he did not have many friends. Manh initially told me it was very difficult for him to adjust in prison. Throughout the following months, I noticed Manh was different. In comparison to before he was in custody, Manh was not physically fit and more willing to start conversations with his friends and family by making calls from custody. It seemed his relationship with his family including his brother and mother had improved and he had gained a lot of experience and insight into his own life. Seeing this drastic change in Manh's personality, I assumed it was because he matured and started to exercise consistently. I noticed Manh started to look much healthier than before, and it was promising to see how he had now changed himself. Manh told me he has stopped using drugs, even though he knew there were inmates that could access drugs in custody, he did not involve himself in any of those behaviours. Manh told me he had seen a psychologist and attended some courses whilst inside. Manh expressed how he deeply regrets being involved in all of this. He told me he regretted how affected not only his personal life but also his family life including his mother and brother and how he could have been involved in an industry that affected so many people's lives such as those he saw in custody. Manh told me how he encountered so many people in custody who had their lives ruined because of drugs and he felt horrible he could have contributed to that. Manh expressed to me that when he is released, he just wants to go to work and live a normal life. I consider Manh to be very smart - he just doesn't apply himself. If Manh was to be released, he would have my full support and I would do all that I could reasonably do to help him succeed in his future." 1. Alike Thong, Thi has been present throughout this sentencing hearing and was available to be cross-examined but was not required for cross-examination by the Crown. I have no hesitation in accepting anything that Thong and Thi have told me about their cousin. What they say about their cousin ties in, in my view, with the assessment made by Mr Borenstein and also with what the offender himself told Mr Borenstein. Furthermore, if the offender had university degrees, I am sure that Thong and Thi would have told me about that, but they have not. Again this fortifies me in the view that the employment and educational history obtained by Mr Borenstein is correct. 2. An important thing flowing from the evidence of the offender's cousins is that they will support him on his release from custody. Not only will they support him but so will his mother and his brother. He appears to have turned his life around and has true contrition and remorse for his offending, true victim empathy. He knows now what being involved in the drug industry can lead to, the destruction of the lives, not only of his own but of many other people who embark upon illicit drug taking. That true contrition and remorse is a significant mitigating factor. 3. Another mitigating factor is that the offender comes before this Court as a man of prior good character. He has had no earlier conviction of any kind. However, he has paid a penalty notice for driving whilst under the influence of a drug. This is directly relevant to the offender's prior drug use and it is again consistent with what he told Mr Borenstein. On Friday, 20 March 2020 the offender was driving a white Toyota Camry. He was stationary for several minutes in one of two lanes on Punchbowl Road at Campsie. Despite the fact that the traffic lights had turned green, he remained stationary in his vehicle. That caused the police to pull the car over later on. It was being driven by the offender. He was the sole occupant of the vehicle. His address at that time, according to his driver's licence, was 6 Pacific Street, Kingsgrove. He passed a roadside breath-test but then the police wished to conduct a roadside drug test. The offender admitted to the police that he had had cocaine the day before. The COPS entry continues thus: "The accused submitted to a roadside oral drug test which returned a positive result to cocaine. The accused was placed under arrest for the purpose of a secondary oral fluid test and was later taken to Campsie Police Station. Due to the machine at Campsie not working, he was then taken to a roadside breath-testing station on Punchbowl Road at Lakemba. The DRAGER drug test returned a positive result to cocaine. Again the police took a history from the offender that he had used cocaine on the day preceding his being tested. He admitted to using cocaine, 'every couple of weeks'." People do not frequently admit regular use of a drug and, 'every couple of weeks' could well have been a euphemism for, 'every couple of days'. Later analysis by NSW Forensic Analytical Science Service at Lidcombe showed a positive result to cocaine pursuant to which he was issued with an infringement notice and which clearly was paid because the matter never went to court. Prospects of Rehabilitation 1. Another question which I have to consider is the prospects of rehabilitation. They are, in my view, good. Clearly the offender has the support of his two cousins and of his mother and brother when he is released from custody. It is clear that he could get drugs if he wished to continue to take them whilst in custody but he has not chosen to do so. He wants to stay clear of drugs. His behaviour in custody appears to have been exemplary. According to Exhibit 7, by 7 August 2022 he had found employment in the kitchen at the Metropolitan Reception and Remand Centre. He was a general hand on pay level 5. A case note indicates that he was, "A good worker and engages in all tasks within the unit. Vu is polite and respectful to both staff and other workers in the unit". 2. By 27 November 2022, the offender was engaged in a course designed to encourage him in his work. On 6 March 2023 he qualified for the Use of Hygienic Practices for Food Safety, part of a Certificate II in Hospitality. By 8 March 2023, he was a leading hand in the kitchen at the MRRC on pay level 7. He again was described as a good worker who engaged in all tasks within his unit and was polite and respectful to both staff and other workers in the unit. In other words, he is working happily in the custodial environment and doing well. 3. Part of Exhibit 3 is a certificate of attendance at a Remand Addiction Course which he completed on 11 August 2022. After sentence he will no doubt be able to engage in further courses to advance his own rehabilitation. Bearing in mind his positive attitude to his rehabilitation, his eschewing drugs, the determination which he has expressed not only to Corrective Services but also to family members and to Mr Borenstein I accept that he is well‑motivated to leave behind a life of crime. I accept that his prospects of rehabilitation are good. However, there is the usual problem that it is easier to abstain from drugs in gaol than it is in the community, and he will need support when released from custody to stay away from drugs and perhaps also from alcohol. Objective Seriousness 1. The personal circumstances of the offender are good. However, I must be concerned with the objective seriousness of the crime. Mr Boulten SC very properly conceded that this case, given all the circumstances, is in the mid-range of objective seriousness, bearing in mind both his role as the warehouse manager, so to speak, and his other roles in this drug supply organisation or cartel, and particularly bearing in mind the quantum of the drugs found in the safehouse or warehouse and the amount of cash found there. 2. Mr Boulten SC referred me not only to statistics from the Judicial Commission but also to a number of cases. The statistics for offences contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 for supplying or knowingly taking part in the supply of a prohibited drug in a large commercial quantity, which bear the standard non-parole period of 15 years, tell me that the 80% range, that is, leaving aside that the bottom 10% of cases and the top 10% of cases, is head sentences between 4 years and 12 years, and non-parole periods between 2 years and 7 years, and the median head sentence is between 6 and 7 years, and the median non-parole period is between 3 and a half and 4 years. 3. The cases to which I have been referred by Mr Boulten SC are Ayk v R [2013] NSWCCA 119, Deakin v R [2014] NSWCCA 121, R v Wong [2019] NSWDC 233, Hung v R [2019] NSWCCA 303, R v Ferguson [2022] NSWCCA 147 and R v Ngo [2022] NSWDC 271. They provide me with some guidance, particularly bearing in mind the role of the offender, but the quantum of the drugs in each of those cases was much lower than the quantum of drugs that were found in Unit 8 at 30-36 Minter Street, Canterbury on 9 July 2021. Consideration First Substantive Offence 1. It is common ground that the offender is entitled to a 25% discount because of his plea of guilty at the earliest available opportunity. As far as sequence 1 is concerned, supplying not less than the large commercial quantity of Methylamphetamine, namely over 218 kilograms of that drug, the supply being deemed because of the quantum of the drug, I start with a head sentence of 16 years' imprisonment. I reduce that by 25% to account for the offender's plea of guilty at the earliest available opportunity. That reduces the head sentence to 12 years' imprisonment. 2. Applying the statutory ratio, the non-parole period should be nine years. However, in this case there are special circumstances. This is this relatively young man's first experience of custody. He is doing well thus far, as far as rehabilitation is concerned, and he is to be encouraged to continue in that path. A very lengthy sentence will of course be a disincentive to his behaving as he should and keeping rehabilitation in mind. Furthermore, when he is released from custody, a longer period than usual under the guidance of Community Corrections will keep him on the path towards rehabilitation. Furthermore, any order I make about the length of the non-parole period does not bind the Parole Board and should things go amiss the offender will probably stay in gaol longer than I indicate. That will give the offender the incentive to remain abstinent from drugs, to undertake courses and education to continue towards along the path of rehabilitation. 3. In the circumstances I propose a non-parole period of seven and a half years. In making those findings concerning that offence I clearly bear in mind the three matters on the Form 1, the indictable quantities of three other drugs which were also found with the methylamphetamine which is the substance of the main charge. Second Substantive Offence 1. As to the charge of dealing with the proceeds of crime, knowing that it was the proceeds of crime, being more than $1.1 million I start that sentencing exercise with a head sentence of four years. I reduce that to three years because of the offender's plea of guilty at the earliest available opportunity. The standard non-parole period for that offence is two years and three months. 2. Clearly, these should not be consecutive sentences. Only partial accumulation is called for. After all, finding large sums of money with large sums of drugs is quite usual and indeed finding any quantity of drugs generally leads to a finding of a quantity of money which can be linked to the drugs that have been found, whether it be large commercial quantities or commercial quantities or even indictable quantities. I intend to impose the sentence for sequence 5, the second major offence, first and to commence a sentence for the sequence 1, the major offence, six months after the commencement of the sequence 5 offence. That inevitably will lead to an effective non-parole period of eight years with a period of four and a half years on parole. Sentence 1. Manh Cuong Vu, on the charge that on 9 July 2021 at Canterbury in this state you did deal with the proceeds of crime namely $1,144,650 in Australian currency knowing that it was the proceeds of crime, you are convicted. I sentence you to imprisonment. I set a non-parole period of two years and three months commencing on 16 May 2022 and expiring on 15 August 2024. I impose a further period of imprisonment of nine months to commence upon the expiration of the non-parole period and expiring on 15 May 2025. The total sentence is therefore three years comprising the non-parole period and the balance of the sentence. 2. On the charge that on 9 July 2021 at Canterbury in this state you did supply an amount of a prohibited drug, namely 218,716.55 grams of methylamphetamine being an amount which is not less than a large commercial quantity applicable to that drug, you are convicted. I sentence you to imprisonment. I set a non-parole period of seven years and six months commencing on 16 November 2022 and expiring on 15 May 2030. I impose a further period of imprisonment of four years and six months to commence upon the expiration of the non-parole period and expiring on 15 November 2034. The total sentence is therefore 12 years comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are eligible to be considered for release on parole at the expiration of the non-parole period. In passing that sentence I am taking into account the matters on the Form 1. 3. Any other orders sought, Mr Crown? MAYER: No, your Honour. HIS HONOUR: Any other orders sought, Mr Pham? PHAM: No, your Honour. HIS HONOUR: Good luck to you, Mr Vu. I know it's going to be a long time but you should be out on 15 May 2030. OFFENDER: Thank you, your Honour. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 May 2024